At the time these shipments moved there was no joint through rate on coal from Pratt to Toledo as a final destination. On such coal the through charge was the 50 cents local rate of the Chesapeake & Ohio from Pratt to Charleston, W. Va., plus the joint rate of the Kanawha & Michigan and Hocking Valley of $1.07 from Charleston to Toledo. The tariff naming the latter rate stated that it applied only on coal consigned to Toledo dock when used as fuel for vessels, and that there would be an additional charge of 11 cents per ton for transferring the coal from cars to vessels.

The plaintiff claimed that the lawful rate on the coal in question, which was in fact used by vessels for fuel and loaded into their bunkers for that purpose, was $1.68, made up of the items just stated. The defendant claimed that it was entitled to the rate of $1.02 per ton, made up of the 97 cents for transportation to Toledo, and 5 cents for unloading, named in the joint proportional tariff above mentioned. After suit was brought the freight money at the $1.02 rate was paid to and accepted by the plaintiff, but without waiving its right to prosecute the action for the excess claimed to be due, amounting to 66 cents per ton. The trial judge held, without stating his reasons therefor, that the 97-cent. rate applied for the haul to Toledo, but that the plaintiff was entitled to the unloading or transfer charge of 11 cents a ton, instead of the 5 cents which defendant had paid. The jury accordingly found a verdict for the difference of 6 cents a ton, besides interest, and the plaintiff thereupon brought the case to this court.

[2] We are clearly of opinion that the learned judge was in error in holding that the coal in question was entitled to the 97-cent rate. That rate, as stated in the caption of the tariff, was a "joint and proportional rate" which applied only to "lake shipments beyond," that is, to shipments carried as cargo from Toledo to more distant destinations. A "proportional rate," as the term implies, is simply a part of a through rate. It is the share of the aggregate charge from origin to destination which one or more of the carriers accepts for performing a definite portion of the whole transportation service. It is a matter of common knowledge that through rates are generally less than the sum of intermediate local rates; and when all the participating carriers do not join in establishing the through rates, it is a common practice for one or more of them to name proportional rates up to some point of connection with another carrier which completes or continues the transporta tion. The propriety and lawfulness of proportional rates to the point of transfer which are less than local rates to that point have frequently been affirmed by the Interstate Commerce Commission, and are sanctioned by considerations of public policy. Kansas City Transportation Bureau v. A., T. & S. F. Ry. Co., 16 Interst. Com. Comn. R. 195, 201; Southwestern Shippers' Traffic Association v. A., T. & S. F. Ry. Co., 24 Interst. Com. Comn. R. 570, 578; Boney & Parker Milling Co. v. A. C. L. R. Co., 28 Interst. Com. Comn. R. 383, 388.

In our judgment it is not open to question that shippers could get the benefit of the 97-cent rate only on coal which was carried as freight beyond Toledo, to whatever points the vessels might transport it. It was so limited in its application by the express terms of the published

tariff, and this limitation was none the less effectual because contained in what is called a "Note." By necessary implication this tariff excluded coal which at Toledo was dumped into vessels, not into their holds to be carried on as cargo, but into their bunkers to be used as fuel. It is plain that coal consigned to Toledo as a final destination was subject to an aggregate rate of $1.68, including the unloading charge of 11 cents, and it is equally plain, in fact and in law, that coal which there went into bunkers to be used for vessel fuel was coal of which Toledo was the final destination, because in that case its transportation as an article of traffic ended at Toledo. In other words, the coal in question was not entitled to the 97-cent rate because it was not transported beyond Toledo, and the shipper was therefore bound to pay the lawful rate then in force on coal consigned from Pratt to Toledo. That rate was $1.68, and the carrier had no option except to collect it. The difference in charges was fixed by the tariffs which respectively applied, and that difference is justified, not by difference of use, but by difference of destination.

The reasonableness of the $1.68 rate is a question for the Commission, and not for the courts. While that rate stands in the published tariffs of the carriers, it is the only legal rate, and binds shipper and carrier alike. The regulating statute on this point is explicit, and neither party can avoid its provisions. This has been repeatedly held by the Supreme Court in a long line of cases from Gulf, Colorado & Santa Fé v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910, to Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed., decided April 5, 1915. The judgment must be reversed, and the case remanded for further proceedings not inconsistent with this opinion. Reversed.

GUTH v. GUTH CHOCOLATE CO.

(Circuit Court of Appeals, Fourth Circuit. May 4, 1915.)

No. 1327.

TRADE-MARKS AND TRADE-NAMES 35-SALE OF GOOD WILL-RIGHT TO USE NAME.

G., widely known as a candy manufacturer and whose name was a valuable asset in connection with the business, transferred to a corporation organized by him certain property and rights, together with the good will and use of the name G., for the purpose of manufacturing and selling candies under the G. label. Afterwards he withdrew from the company and launched a new candy enterprise, in which he made his name prominent in every way, using his full name, instead of his surname only, as formerly. Held, that he was properly enjoined from using his name as a trade-mark.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Dec. Dig. 35.

Right to use one's own name as trade-mark or trade-name, see notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner's Malzkaffee Fabriken Mit Beschraenkter Haftung v. Pastor Kneipp Medicine Co., 27 C. C. A. 357; Borden Ice Cream Co. v. Borden's Condensed Milk Co., 121 C. C. A. 205.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.

Suit by the Guth Chocolate Company against Charles G. Guth. Decree for complainant (215 Fed. 750), and defendant appeals. Affirmed. George W. Lindsay and Richard B. Tippett, both of Baltimore, Md., for appellant.

Laurence A. Janney, of New York City (Emery, Booth, Janney & Varney, of New York City, on the brief), for appellee.

Before KNAPP, Circuit Judge, and WADDILL and CONNOR, District Judges.

KNAPP, Circuit Judge. We are satisfied with the disposition of this case by the court below and need only indicate our reasons for affirming the judgment.

1. It is well settled that a person who has adopted and used his surname as a trade-mark, or trade-name, may transfer the same with the good will of a business and thereby divest himself of the right to use his name in connection with such a business. In Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304, 9 Am. St. Rep. 685, a case of marked similarity to the one at bar, the rule is stated as follows:

"One who has carried on a business under a trade-name, and sold a particular article in such a manner, by the use of his name as a trade-mark or a trade-name, as to cause the business or the article to become known or established in favor under such a name, may sell or assign such trade-name or trade-mark when he sells the business or manufacture, and by such sale or assignment conclude himself from the further use of it in a similar way. ** A person may be enjoined, therefore, from using his own name as a description of an article of his own manufacture, and from selling the article under that particular name, when he has parted with the right thus to apply it. It is not upon the ground of the invasion of the trade-name adopted by another, but by reason of the contract he has made, that he is deprived of the right himself to use his name as all others of the same name may use theirs."

* * *

The kindred case of Le Page v. Russia Cement Co., 51 Fed. 943, 2 C. C. A. 557, 17 L. R. A. 354, dealing with substantially the same facts, states the proposition thus:

"It is equitable that a manufacturer or dealer, who has given reputation to any article, should have the privilege of realizing the fruits of his labors by transmitting his business and establishment, with the reputation which has attached to them, on his decease to his legatees or executors, or during his lifetime to purchasers; and it is also in accordance with the principles of law, and with justice to the community, that any trade-mark, including a surname, may be sold with the business or the establishment to which it is incident."

These cases have been frequently cited with approval, as, for example, in Royal Baking Powder Co. v. Royal, 122 Fed. 337, 346, 58 C. C. A. 499, 508, where Judge Lurton, speaking for the Sixth Circuit Court of Appeals, says:

"Where one has used his own name as a trade-name, and then parted with it, he may, of course, be enjoined from using his name in that business."

2. As to the sale in this case: When Guth organized the Guth Chocolate Company of Delaware, in 1909, to take over the business of the

934

Guth Chocolate Company of Baltimore, which had become insolvent, he transferred to the new corporation-the transaction taking the form of a resolution accepting his written offer of sale certain specified property and rights, "together with the good will and use of the name Guth for the purpose of manufacturing and selling candies under the Guth label," etc. At that time he was widely known to the trade as a candy manufacturer of superior skill, and his name was a valuable asset in connection with that business. He was made president of the new company, became later the owner of 80-odd per cent. of its common stock, and dominated its activities until he disposed of his stock, in February, 1913, for several times what it cost him. A few months afterwards he withdrew from the company altogether and started another concern for the manufacture of candy, known as the Chocolate Products Company, which he appears to control.

In exploiting this venture, by circulars and otherwise, he took pains to inform the trade that he had severed all connection with the Guth Chocolate Company, had launched an entirely new enterprise, and was making his goods by new processes and machinery. But he made prominent in every way the name of Guth, and evidently relied for success upon the popularity of candies associated with that name. True, he made use of his full name, "Charles G. Guth," instead of the surname "Guth," or "Au Guth," which he had previously employed; but it is the surname which catches the public, and few purchasers would notice the difference between one form and the other. In the nature of things confusion was inevitable.

We are unable to distinguish the case in hand from the Le Page Cases above cited, and others of similar import, which fully sustain the decree of the trial court. When, in 1909, Guth sold, among other things, "the use of the name Guth for the purpose of manufacturing and selling candies under the Guth label," he dispossessed himself of the right thereafter to use his name as a trade-mark, and no valid reason appears for not holding him to his obligation. The commercial value of his name as a trade-mark is confined to the surname Guth, and the contract he entered into was not less effectually broken because he used his full name, instead of the surname only, on the packages of candy which he put upon the market. Stripped of all pretenses, what he really seeks to do is to keep for himself the essential thing he sold, and also keep the price he got for it. A court of equity may properly prevent such manifest unfairness. The injunction granted goes no further than to enforce the agreement which Guth actually made in regard to the use of his name, and he cannot justly complain of a decree which compels him to abide by his bargain.

Affirmed.

MCSPADDEN v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. June 14, 1915.)

No. 4393.

1. INDICTMENT AND INFORMATION 133-VALIDITY OF INDICTMENT-MODE OF TESTING.

The validity of an indictment cannot be tested by an objection to any evidence on the part of the government.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. 133.]

2. INDIANS 38 OFFENSES-INTRODUCTION OF Liquor.

An indictment charging that accused introduced liquor into the state of Oklahoma from without the state, into a county within that which was formerly the Indian Territory, charges a violation of Act March 1, 1895, c. 145, 28 Stat. 697, § 8.

[Ed. Note. For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. 38.]

3. INDIANS TORY

38-OFFENSES-INTRODUCTION OF LIQUOR INTO INDIAN TERRI

EVIDENCE.

In a prosecution for introducing liquor into what was formerly the Indian Territory from without the state of Oklahoma in violation of Act March 1, 1895, c. 145, 28 Stat. 697, § 8, evidence held sufficient to go to the jury.

[Ed. Note. For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. 38.

Introducing intoxicating liquors into Indian country, see note to Joplin Mercantile Co. v. United States, 131 C. C. A. 171.]

4. CRIMINAL LAW 814-TRIAL-INSTRUCTIONS.

In a prosecution for violating Act March 1, 1895, c. 145, 28 Stat. 697, § 8, relating to the introduction of liquor into the Indian Territory, requests applicable to Act Jan. 30, 1897, c. 109, 29 Stat. 506, § 1 (Comp. St. 1913, § 4137), are properly refused.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. 814.]

In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Booth McSpadden, alias Henry Moore, was convicted of introducing liquor into the Indian Territory from without the state of Oklahoma, and he brings error. Affirmed.

J. I. Howard and C. B. Holtzendorff, both of Claremore, Okl., for plaintiff in error.

W. P. McGinnis, of Muskogee, Okl. (D. H. Linebaugh, of Muskogee, Okl., on the brief), for the United States.

Before ADAMS, Circuit Judge, and TRIEBER and REED, District Judges.

ADAMS, Circuit Judge. Plaintiff in error was indicted and convicted for introducing liquor into the Indian Territory from without. the state of Oklahoma in violation of the act of March 1, 1895. The indictment particularizes the offense by alleging that the defendant introduced liquor into the county of Ottawa and state of Oklahoma from

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