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note an absolute guaranty, by bankrupts, of the payment of this note, with interest at the rate of 10 per cent. per annum after due, but which, in the view I take of the case, cuts no special figure in the questions raised here. (2) A note of Woolner Brothers for $15,000, dated June 2, 1877, and payable to Pulsifer & Co. 90 days after date, indorsed by Pulsifer & Co., “Pay Bank of Commerce. S. Pulsifer & Co." (3) Note of Woolner Brothers for $10,000, dated May 11, 1877, payable four months after date, indorsed, “ Pay T.C. Van Blarcum, Acting Cashier. S. Pulsifer & Co.;" Van Blarcum being, at the time of such indorsement, acting cashier for the bank, and the indorsement being for the benefit of the bank.
On the eighth day of March, 1878, a supplemental proof of said claim was made and filed; and this application involves the sufficiency of the claim as shown under the original and supplemental proof. Proof has been taken under the thirty-fourth rule, and an issue made and certified into court upon the said application.
The questions raised by the issue are as to the amount for which the bank is entitled to prove its claim under said notes. The claim as proven was for the full face of the three notes, $40,000, with interest on the first note after due as per stipulation in bankrupts' guaranty indorsed on note, $40,270; statutory damages of 4 per cent, under Missouri statute, $1,600; total, $41,870.
By the supplementary and amended proof, the bank gave credit for the sum of $1,410.07, standing on its books to the credit of Pulsifer & Co. at the time of their bankruptcy, which the bank had retained and credited on this indebtedness.
About tne time that the firm of Pulsifer & Co. were adjudged bankrupts, proceedings in bankruptcy were also commenced in this district against the firm of Woolner Brothers, the makers of the notes in question, and said firm made a proposition for composition on payment of 30 per cent., which was accepted by their creditors, and the bank, as the holder of the paper now in question, was, by express agreement with the trustee of Pulsifer & Co., approved by this court, allowed to accept this composition without prejudice to its claims against the Pulsifer estate as indorsers of said note.
This composition by Woolner Brothers was paid in full by two installments half on October 18 and half on November 21, 1877. The total amount received and applied by the bank on these notes, under the Woolner composition, was $12,224.25. But in making its supplemental proof in March, 1878, although the bank had then received the 30 per cent. on the notes from the Woolners, it makes its proof for the full face of the notes as they stood at the time Pulsifer & Co. were adjudged bankrupts, and the 4 per cent. statutory damages, claiming that the bankrupts' estate was not entitled to credit for the amount received from Woolners “ until the dividends from bankrupts' estate have paid 70 per cent, of the whole claim."
The questions now presented upon the application to reduce this claim, as it is asserted in the supplemental proof, involves the right of this creditor (1) to prove its debt and draw dividends from the bankrupts' estate for the full amount due on the notes, without deducting this payment made by the Woolners; (2) the right of this creditor to prove the 4 per cent. statutory damages allowed the state of Missouri to be collected by the holder of a dishonored negotiable bill of exchange or note against the maker or indorser, “in lieu of charges of protest, and other charges and expenses." 1 Rev. St. Mo. c. 10, $ 544.
There is no doubt that it has been repeatedly held, under our bankrupt law, that even if the holder of a note has received a sum of money from an indorser, he may nevertheless prove it in full against the estate of the maker in bankruptcy, and collect as much as he can, and any surplus he may receive over the amount actually due the holder, will be held in trust for the indorser or surety. Ex parte Talcott, 9 N. B. R. 502; In re Weeks, 13 N. B. R. 263; In re Ellerhorst & Co. 5 N. B. R. 144; Downing v. Traders' Bank, 11 N. B. R. 371.
And the right to prove the full amount of those notes against the estate of the bankrupt is insisted upon on the authority of these and analogous cases. But here the bankrupts are only sureties on these notes. Woolner Brothers are the principal debtors, and the bankrupts only made themselves contingently liable, on their contract as indorsers, to pay in case the makers did not.
It is very clear to me, therefore, that the bank, as the holder of these notes, can only collect from the surety what remains due on the notes after deducting the amount received from the principal debtor. The same rule must apply in the case as would hold if a suit at law had been brought by the bank against the bankrupts as indorsers of this paper. If the notes had been proved by the bank as holders against the estate of Woolners, the right to prove in full, notwithstanding payments received from the indorsers, would be manifest, because any excess collected would be held for the benefit of the surety; but an excess collected from these bankrupts could not be held in this case for the benefit of the makers; and it is obvious that, as against the other creditors of the bankrupts, this creditor has no right to prove its debt and receive dividends on any more than the amount of the bankrupts' liability on the paper.
I am, therefore, of opinion that the claim must be reduced by the reduction of the Woolner payment.
As to the claim for 4 per cent. statutory damages, it is admitted that the notes in question were made in this state; that the makers and payees reside here; that the bank was the St. Louis correspondent of the bankrupts; and that the bank discounted the notes in due course of business, upon request of bankrupts. The notes having been dishonored, can the bank import into this state the Missouri statute regulating the damages to be recovered by the holder of protested negotiable paper, and have these damages allowed him here? This is purely a local regulation, enforceable only in the state where the statute prevails, and does not, in my view, become so far a part of the contract as to be chargeable to the bankrupts in this state on their contracts of indorsement and guaranty.
The statutes passed by the various states regulating the damages to be recovered by the holders of negotiable paper, vary so much that such a rule of damages against indorsers or makers upon this class of paper would be so variable that no party putting afloat a piece of negotiable paper could tell what his liability would be. I find no express authority bearing directly on this question save the case of Fiske v. Foster, 10 Metc. 597, where the supreme court of Massachusetts held that the statute of the state of Maine, regulating the damages upon suits between parties to negotiable paper, should have no extraterritorial operation. The reason on which the decision was made seems to me sound, and I do not find that the case has been doubted or overruled.
An order will, therefore, be made reducing the claim by the amount paid under the Woolner composition and the amount of the statutory damages.
HUMPHREYS' SPECIFIO HOMEOPATHIO MEDICINE Co. v. WENZ.
(Circuit Court, D. New Jersey. November 24, 1882.)
Numbers constitute a lawful trade-mark when they indicate origin or pro
prietorship, and are used in combination with words and other numerals. 2. SAME_WORDS.
The words “ homeopathic specifics,” standing alone, cannot be appropriated
as a trade-mark; but can be when used in connection with serial numbers. 3. NUMBER ALONE MAY BE EMPLOYED.
The complainant was the first to adopt such a method of putting up homeopathic medicines, and by reason thereof certain specific remedies have come to be known in the trade by numbers alone,
4. SAME-VIOLATION BY IMITATION OF.
The use of another name, such as “ Reeves' improved,” in place of " Humphreys'," before the words“ homeopathic specifics," does not take the defendant out of the class of imitators; such prefix does not meet the difficulty, as the remedies are purchased by the public by the numbers alone, and the defendant
has made use of such pumbers. 5. RESEMBLANCE-INTENT TO DECEIVE AND MISLEAD.
If the resemblance is such as not only to plainly suggest an intention to deceive, but is calculated to mislead the public, who are purchasers of the article, and thus to injure the sale of the goods of the proprietor of the original device, the injured party is entitled to redress. In Equity. A.J. Todd and A. Q. Keasbey, for complainant. J. Frank Fort, for defendant.
Nixon, D. J. The bill of complaint filed in the above case alleges that the complainant is a corporation, organized under the laws of the state of New York, by the name and title of “The Humphreys' Specific Homeopathic Medicine Company;" that for upwards of 20 years past it has manufactured and sold a series of 35 homeopathic specific medicines or remedies, which have been put up in bottles containing thereon labels and wrappers having printed thereon the words "homeopathic specific,” in connection with numbers in a series, and particular reference to diseases or infirmities for which the medicines in the bottles are intended as specifics; that the complainant's designation of said series of homeopathic specific medicines is by the words "homeopathic specific," and by numbers in a series as follows: No. 1, fever, congestion, inflammations; No. 2, worm fever or worm disease; No. 3, colic, crying, and wakefulness of infants; No. 4, diarrhoea of children and adults; No. 5, dysentery, gripings, bilious colic; No. 6, cholera, cholera morbus, and vomiting; No. 7, coughs, colds, hoarseness, bronchitis; No. 8, toothache, face-ache, neuralgia ; No. 9, headache, sick headache, vertigo; No. 10, dyspepsia, biliousness, costiveness; and so on, upwards, in the same serial order, to 35; that by reason of the use of numbers in serial order, in connection with the words “homeopathic specific,” the books and pamphlets of the complainant, descriptive of its homeopathic specifics, and the directions therein contained relating to their use, could be referred to by the defendant in the sale of his “homeopathic specifics,” and such books could be used with the defendant's medicines to a large extent in the treatment of diseases, with the serial order of specifics put up and sold by him, equally as well as with the serial order of specifics put up and sold by the complainant.
The bill further elaims that the complainant was the first to use specifics in homeopathy, and the first to adopt the term "homeopathic specifies,” and to use in connection with these words numbers to designate the medicines and the diseases for which such medicines are intended as specific; that such adoption is not descriptive, but denotes origin and ownership; that the use of said numbers in connection with these words it wholly arbitrary, as symbols to denote origin and ownership; that such use has become so acknowledged and acquiesced in by the public that the specifics are now known by numbers only, and are ordered and called as such, instead of by the names of the particular complaints or diseases or remedies therefor; and that it medicines thus put up in bottles labeled as "homeo. pathic specifics,” and numbered in series, have acquired a high reputation throughout the United States and have commanded and still command an extensive sale, and have become a great source of profit to the complainant.
The charge is that the defendant has infringed the complainant's trade-mark by taking bottles of about the size of complainant's, putting labels thereon, and printing in conspicuous letters the words "homeopathic specifics," and numbering the series from 1 to 40, as the complainant's are numbered from 1 to 35; that in regard to the most usual remedies for the most common complaints or diseases he has adopted the same numbers for the same diseases, that complainant has used for many years; and that the effect of such imitations is to deceive the public by making purchasers believe, when buying the specifics of the defendant, that they are obtaining the complainant's remedies.
An application is now made for an injunction to restrain the defenaant, pendente lite, from the continued use of such labels in connection with numbers.
The case presents an interesting question. A trade-mark is any proper mark by which goods and wares of the owner or manufacturer are known in the trade. Courts of equity have two objects in view in granting injunctions against their imitation: (1) To secure to the individual adopting one the profits of his skill, industry, and enterprise; (2) to protect the public against fraud. There are limitations upon the devices or symbols that may be adopted. To be lawful they must have reference to origin or ownership, and not to quality. They must not be of such a character that their use will give a monopoly in the sale of any goods other than those produced by the person