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11 F.(20) 29 not escape conviction because he did not only heirs at law, on his death took his interest know whether they were stolen in intrastate burdened with easement, and, where value of

interest exceeded damage done by grantee of or in interstate commerce.” Rosen v. U. S.

easement, they could not sue for damages. (C. C. A.) 271 F. 651; Kasle v. U. S. (C. C. A.) 273 F. 878; Grandi v. 0. S. (C. C. 3. Tenancy in common Cw4l-Partition unnec

essary, where cotenants of grantor of easeA.) 262 F. 124.

ment, by deeds containing warranties against [3] The exception to the admission of the claims for damages to other portions of land, cigarettes in evidence cannot be sustained. inherited grantor's interest. They were properly identified as the ciga- Where owner of undivided interest in land, rettes which were discovered in defendant's after conveying portion thereof, with right to

as tenant in common with his children, died possession when he was found by the officers impound water thereon, by deeds containing at 3 o'clock in the morning walking beside warranties against claims for damages to other the railroad track. They constituted very portions, and children inherited his interest, material evidence against the defendant, be value of which exceeded damage done to land

by grantee of easement, there was no need for cause the cartons in which they were con- partition to work out parties' rights, as chiltained bore marks which tended to identify dren were estopped to claim damages because them as the cigarettes which had been stolen of such warranties. from the freight car some months before. It was proper for the jury to consider the

In Error to the District Court of the fact that the defendant had these particular United States for the Western District of cigarettes in possession, together with the South Carolina, at Greenville; Henry H. other facts in the case, in determining wheth- Watkins, Judge. er he was guilty under the statute. “Evi- Action by J. T. Burdine and others dence that accused was in possession of the against the Southern Public Utilities Compastolen property at any time after the larceny ny. Judgment for defendant, and plaintiffs is admissible, even though the possession is bring error. Affirmed. not sufficiently recent or exclusive to raise the

B. F. Martin, of Greenville, S. C. (Marpresumption that accused was the thief." 36 C. J. 895; Boehm v. U. S. (C. C. A.) 271

tin & Blythe, of Greenville, S. C., on the F. 457; State v. Foulk, 52 P. 864, 59 Kan.

brief), for plaintiffs in error. 775.1

C. F. Haynsworth, of Greenville, S. C. We have given careful consideration to (H. J. Haynsworth, of Greenville, S. C., on the arguments of defendant's counsel, but a

the brief), for defendant in error. thorough examination of the record con

Before WADDILL, ROSE, and PARvinces us that no error was committed on the KER, Circuit Judges. trial, and that the judgment and sentence of the court below should be affirmed.

PARKER, Circuit Judge. This was an Affirmed.

action instituted by the heirs at law of Carrie Burdine as owners of a one-third undivided interest in a tract of land in Greenville coun

ty, South Carolina, to recover permanent BURDINE et al. v. SOUTHERN PUBLIC

damages for the ponding of water over a UTILITIES CO.

portion of said tract by a dam of the defend(Circuit Court of Appeals, Fourth Circuit. ant, Southern Utilities Company. The dam January 12, 1926.)

of defendant was built in 1905, at which time No. 2414.

A. M. Burdine, the father of plaintiffs, was 1. Property m6.

the owner of a two-thirds undivided interest Rights in land must be determined by laws

in said tract, the remaining one-third interest of state wherein situated.

being owned by plaintiffs. At that time A. 2. Estoppel 28Where value of deceased

M. Burdine, being in possession of the land, cotenant's Interest exceeded damage done un conveyed to the predecessor in title of the der easement conveyed by him, other coten- defendant a small portion thereof, with right ants, inheriting his interest, could not sue for damages (following Charleston, C. & C. R. R. dam in the Saluda river, and to cover by im

on the part of the grantee to erect a 39-foot Co. v. Leech, 17 S. E. 994, 39 S. C. 446).

Where owner of undivided interest in land pounding water that portion included in the as tenant in common with his children conveyed conveyance. In 1909 A. M. Burdine executportion thereof, with right to erect dam and ed another conveyance, authorizing the dam impound water thereon, such children, as his to be raised an additional 4 feet and the tract

of land aforesaid to be overflowed to so great * Reported in full in the Pacific Reporter; not reported in full in Kansas Reports.

an extent as might be rendered necessary in consequence of the raising of the dam. Both ed this could have been done without injury deeds contained covenants of general war- to the interests of the other tenants in comranty and guaranties of immunity from mon. Railroad v. Leech, supra, 11 S. E. 631, claims for damage resulting to other portions 33 S. C. 181, 26 Am. St. Rep. 667; Young v. of the land from impounding the waters of Edwards, 11 S. E. 1066, 33 S. C. 404, 10 L. R. the river. The defendant pleaded in bar of A. 55, 26 Am. St. Rep. 689; Highland Park plaintiffs' action the purchase from A. M. Mfg. Co. v. Steele (C. C. A. 4th Circuit) Burdine of the right to pond water upon the 235 F. 465, 149 C. C. A. 11. But A. M. Burland, and the warranties contained in his dine having died, and plaintiffs having inherdeeds of conveyance, claiming the right to ited from him his interest in the land, and it have the tract of land partitioned and that being admitted that this interest was of portion affected by the ponded waters allot- greater value than the damage done to the ted as the share of A. M. Burdine.

lands by the exercise of rights under the The question as to the damage done to easement granted by him, there was no need plaintiffs' interest in the land was submitted for a partition to work out the rights of the to a jury, who assessed said damage at $963. parties. Under these circumstances the It was admitted of record that this amount plaintiffs are estopped from claiming the did not equal the value of the two-thirds in- damages which they seek by reason of the terest of A. M. Burdine in the land. It was warranties contained in the deeds executed also admitted that A. M. Burdine died intes- by their father. 21 C. J. 1108, and cases tate before the institution of the action, and cited. A' learned discussion of the questions that his interest in the land had descended to involved will be found in the opinion of the plaintiffs as his only heirs at law. Upon the late Chief Justice McIver of South Carolina verdict and admissions as above set forth, in Railroad v. Leech, 17 S. E. 994, 39 S. C. judgment was entered for defendant, and 446. plaintiffs bring this writ of error.

For the reasons stated, the judgment of [1,2] We think that the judgment of the the District Court is affirmed. District Court was correct. As the land in- Affirmed. volved lies within the state of South Carolina, the rights of the parties with regard thereto are to be determined by the laws and

N. JACOBI HARDWARE CO., Inc., V. VIEdecisions of that state, and these rights have

TOR et al. been settled in a case "on all fours" with the case at bar. Charleston, C. & C. R. R. Co. (Circuit Court of Appeals, Fourth Circuit.

January 12, 1928.) v. Leech, 17 S. E. 994, 39 S. C. 446. In that case, as in this, there was conveyance of

No. 2415. an easement over land by a parent owning an

1. Sales 32-Contract for sale of rope held undivided interest in said land as tenant in

completed by correspondence, without regard common with her children. In that case, as to signing and return of formal written conin this, the damages done to the land by the

tract. grantee of the easement amounted to less

Where selling agents, at buyer's request, than the value of the interest of the tenant ance, buyer gave definite order for certain

quoted price of rope, subject to mills' acceptin common who made the conveyance. In amount at such price, and agents wrote, notithat case, as in this, the parent died, and her fying buyer of mills' acceptance before receipt

of letter as to price guaranty, which letter of interest in the land passed to her children as

quotation stated would not be given, contract her only heirs at law. The court held, and was complete without regard to signing and rewe think properly, that the children must turn of formal written contract by buyer. take the parent's interest burdened with the 2. Sales Om89—Buyer's reference in letter to easement placed upon it, and that, since the price guaranty could not affect contract al. value of such interest exceeded the damage

ready completed, in absence of assent by selldone under the grant of the easement, the

That buyer, when returning signed formal children were not entitled to maintain an ac- contract, referred in letter to price guaranty, not tion for damages.

contained in order and at variance with con[3] If A. M. Burdine had been living at the

tract established by correspondence, could not

affect contract in absence of assent by seller. time of the trial, the defendant would have been entitled to have the land partitioned be- 3. Sales en 22(3)-Buyer, signing and forward

ing copy of formal order, waived price guarantween him and his children, and his share

ty as condition of acceptance of offer. therein allotted, so as to include the portion

Buyer waived price guaranty as condition of the land overflowed and damaged, provid- of acceptance of offer by signing and sending

er.

11 F.(20) 30 to selling agents copy of formal order, after again calling attention to the fact that a being notified that sellers would not guarantee number of factories were soliciting orders price.

and giving prices with guaranties. On July 4. Sales 384(2)—Measure of damages for 29th plaintiffs answered this letter, quoting breach of contract by refusal to accept de white 5/16" to 5/8" rope at 5242 cents per livery stated.

Measure of damages for buyer's breach of pound, put up in coils of 33/35 pounds per contract by refusal to accept delivery was dif- coil, with freight allowance of 50 cents per ference between contract price and market 100 pounds, and stating that mills would acprice on last day fixed for acceptance. cept orders up to April 1st of the next year, 5. Trial em 170.

but that they would not give a price guarWhere plaintiffs were clearly entitled to re- anty. On August 4th defendant replied to cover, and nothing affecting their claim was this quotation as follows: "Please book us doubtful, court properly directed verdict for your quotation July 29th 500 coils Eagle and them.

Phænix white cotton rope 5212 cents per 6. Sales 384(7).

pound, with freight allowance 50 cents per In suit for damages for buyer's breach of 100 pounds. Same to be shipped for April contract, price plaintiffs obtained or might have 1, 1921.” This letter contained no reference obtained on resale is immaterial.

to any price guaranty. On August 6th 7. Sales am 340_Seller's remedies on buyer's plaintiffs forwarded to defendant formal breach of contract stated.

order, bearing date of August 6th, to be On buyer's breach of contract, seller may signed by defendant. Duplicate copies of treat property as his own and sue for damages, or treat it as buyer's and sue for price or differ. this formal order were sent, one on a pink ence between contract and resale prices.

and the other on a green sheet of paper.

Defendant was requested to sign and return In Error to the District Court of the the pink copy and to retain the green copy United States for the Eastern District of for its own files. North Carolina, at Wilmington; Isaac M. On August 10th, before receiving a reMeekins, Judge.

ply to the letter of the 6th, plaintiffs again Action by Carl Vietor and others, part- ceeded in having defendant's order accepted

wrote defendant, stating that they had sucners trading as Frederick Vietor & Achelis,

by the mills. This letter referred to the against the N. Jacobi Hardware Company, order as of the date of August 6th, and Inc. Judgment for plaintiffs, and defendant stated that it was subject to the conditions on brings error. Affirmed.

the copy of the order. On August 10th, the This was an action to recover damages same date of plaintiffs' letter last mentioned, for breach of a contract of purchase. T defendant signed the green instead of the plaintiff in error occupied the position of pink copy of order, and forwarded it to defendant in the court below, and the de- plaintiffs with a letter containing the followfendants in error the position of plaintiffs, ing statement: “We understand that you and, for convenience, they will be so desig- guarantee us against any decline you may nated here. The District Court directed a make on same." To this letter plaintiffs verdict for plaintiffs on both the question of replied, under date of August 12th, acknowlliability and the amount of damages, and, as edging receipt of the “signed confirmation the only exceptions of defendant relate to of order," and stating: “You mention in this action of the court, a somewhat detailed your letter that you understand we guarantee statement of the facts established by the evi- the price. We beg to state that we have dence becomes necessary:

never made a practice of guaranteeing prices Plaintiffs were commission merchants, on rope and do not do so now." Defendant selling agents of mills, and also factors, guar- made no reply to this letter, and did not anteeing orders, prices, and accounts. On attempt to revoke or cancel the order. On July 20, 1920, defendant wrote plaintiffs, August 17th plaintiffs wrote defendant, callasking for prices on rope manufactured by ing attention to the fact that defendant had the Eagle and Phønix mills, and stating that sent the green instead of the pink copy of jobbers were out soliciting orders for fall the order, and asking that the pink copy be shipment, price guaranteed. On July 22d sent to complete plaintiffs' files, and on Auplaintiffs acknowledged receipt of this let- gust 26th defendant signed and returned to ter, and promised to quote prices as soon as · plaintiffs the pink copy of the order, without same were established for the coming season. exception or comment. On July 26th defendant again wrote plain- The foregoing was all of the evidence tiffs, asking for prices on the rope, and bearing upon the actual making of the contract, but there was other evidence showing offer from plaintiffs. Plaintiffs, in response unequivocally that both parties considered to this request, had quoted prices subject to the contract as having been made and as mu- acceptance by the mills. Defendant uncontually binding upon them. On September ditionally accepted the offer contained in 13th plaintiffs wrote, asking for specifica- this quotation, giving plaintiffs a definite ortions, and defendant replied under date of der for a certain amount of rope at a definite September 28th: “Regarding our order No. price, specifying freight allowance and time 5165, we bought same to be specified for by of shipment. This completed the contract, April 1, 1921. It is our intention to ship subject to the condition that it be accepted by same direct to our trade as we receive or- the mills. It was accepted by the mills, and ders. If this is not satisfactory, we must ask plaintiffs wrote, notifying defendant of the that you cancel.Plaintiffs replied to this, acceptance, prior to their receipt of the letstating that it would be satisfactory for the ter in which defendant stated that its ungoods to be ordered out by April 1st. On derstanding was that the prices were guarJanuary 25, 1921, defendant wrote asking anteed, an understanding directly in conplaintiffs to cancel the order, which plain- flict with the express terms of the letter of tiffs declined to do. On March 30, 1921, de quotation. This correspondence completed fendant wrote, requesting that plaintiffs use the contract between the parties, without their good offices with the mills to induce regard to the signing and return of the forthem to accept a reasonable compensation in mal written contract. Bell v. Lamborn (C. lieu of compliance with the contract. On C. A. 4th Ct.) 2 F.(20) 205; Billings v. May 21st defendant again wrote plaintiffs, Wilby, 96 S. E. 50, 175 N. C. 571; Wilkins offering to pay compensation in lieu of tak- v. Cotton Mills, 97 S. E. 151, 176 N. C. 72; ing the rope, and suggesting a payment of Savannah Sugar Refining Corporation v. 5 to 10 cents per pound.

Sanders, 129 S. E. 607, 190 N. C. 203. The evidence is undisputed that on April (2] The fact that the defendant, when re1, 1921, the market price of rope of the kind turning the signed formal contract, referred described in the contract was 2242 cents in its letter to an understanding on its part per pound. On that date the Eagle and as to price guaranty not contained in the Phonix Mills charged plaintiffs for the rope order as signed, and at variance with the at 521/2 cents per pound, and thereafter duly terms of the contract as established by corassigned to them their claim against defend- respondence, cannot avail the defendant. ant. Plaintiffs paid for the rope the price of This was not an attempt to specify different 5212 cents and after holding it for a year terms in the acceptance of an offer, which sold it at 221/2 cents. The court directed a would amount to a rejection of the offer and verdict in favor of plaintiffs for the sum of a counter proposition. The offer had al$4,950, with interest from May 1, 1921; ready been unconditionally accepted, and this being the difference between the con-' the terms of the contract had become fixed. tract price and the market price as of April It amounted at the most to a proposed altera1, 1921, computed on 500 coils of rope of tion of the contract, made after uncondithe minimum weight of 33 pounds per coil. tional acceptance, which could not affect the

E. K. Bryan, of Wilmington, N. C. contract, in the absence of assent by the (W. B. Campbell and Bryan & Campbell,

other party. Wilkins v. Cotton Mills, suall of Wilmington, N. C., on the brief), for mick, 49 S. E. 28, 56 W. Va. 161, 67 L. R. A.

pra; 6 R. C. L. 605; Turner v. McCorplaintiff in error.

I. C. Wright, of Wilmington, N. c. 853, 107 Am. St. Rep. 904. (Chandler Bennitt, of New York City, and

As said by Justice Stacy in Rucker v. Wright & Stevens, of Wilmington, N. C.

, Sanders, 109 S. E. 857, 182 N. C. 607: "In on the brief), for defendants in error.

order for this subsequently intended direc

tion or suggestion to invalidate the acceptBefore WADDILL, ROSE, and PARK. ance, it should amount to a qualification or ER, Circuit Judges.

condition imposed as a part of the accept

ance itself.” PARKER, Circuit Judge (after stating [3] The statement in the letter as to price the facts as above). [1] We think that the guaranty could not operate as a rejection of learned District Judge was clearly right in the offer, because the offer had already been directing a verdict for plaintiffs, both as accepted, and for the further reason that it respects the question of liability of defend- did not purport to be a condition of acceptant and the amount of damages. As to the ance. It could not operate to add an addifirst question, defendant had requested an tional term to the contract, because plain

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11 F.(20) 33 tiffs promptly replied, refusing to guarantee contract price and that obtained on resale. the price. But, even if the language of de- Heiser v. Mears, 27 S. E. 117, 120 N. C. 443; fendant's letter could be construed as im- 24 R. C. L. 86. In the case at bar the sellers posing a price guaranty as a condition of ac- elected to pursue the first of the remedies ceptance, the defendant waived this condi- mentioned, and all questions as to what tion by signing and sending in the pink copy price they obtained, or might have obtained of the formal order, after it had been noti- upon a resale of the property, are foreign to fied that plaintiffs would not guarantee the the issue in controversy which, as stated price. The subsequent correspondence of the above, was the difference between the conparties with regard to the contract shows tract price and the market price at the time clearly that they both thoroughly under- fixed for delivery. As the facts as to this stood that there was a completed contract, and were established beyond controversy, a verthat there had been no guaranty as to price. dict was properly directed. [4, 5] As to the amount of damages, it was Affirmed, clear from all the evidence in the case what plaintiffs were entitled to recover, there being no dispute as to any element to be considered. The contract price was admittedly VICK MEDICINE CO. v. VICK CHEMICAL 5242 cents per pound. The evidence showed

CO. without contradiction that the market price

(Circuit Court of Appeals, Fifth Circuit. was 2212 cents per pound on April 1, 1921,

January 2, 1926.) the last day fixed for acceptance of delivery

No. 4682. by the defendant. The jury were instructed to fix the damages at an amount which rep- 1. Trade-marks and trade-names and unfair resented the difference between the admitted

competition Om93(3).

Evidence held to show medicine company's contract price and this undisputed market

name was adopted to gain benefit of publicity price, calculated on the quantity of rope given same name by another company. covered by the contract. This was the cor

2. Trade-marks and trade-names and unfair rect measure of damages. Lumber Co. v.

competition Om73(1)-Corporation may not Mfg. Co., 78 S. E. 284, 162 N. C. 395;

use individual's name, if selected with intent Duluth Furnace Co. v. Iron Belt Mining Co. to mislead public and aid in competition with (C. C. A. 8th Ct.) 117 F. 138, 55 C. C. A.

established concern using same name. 154, 35 Cyc. 592, and cases cited; 24 R. C.

Corporation may not use in its name or on its L. 116. Where the plaintiffs were clearly en

products the name of an individual, if selected

to aid in competition with an established contitled to recover, and no matter affecting their

cern using same name, and with intent to misclaim was left in doubt, the court properly lead public. directed a verdict in their favor. North

3. Trade-marks and trade-names and unfair Penn. R. R. v. Commercial Bank, 8 S. Ct. competition C45_Medical manufacturing 266, 123 U. S. 727, 31 L. Ed. 287; Angelo corporation held properly restrained from usv. Lamborn (C. C. A. 4th Ct.) 2 F.(20) 854.

ing name registered and used by another cor

poration (Act Feb, 20, 1905, 8 5 [Comp. St. [6] Defendant contends that there was error

§ 9490]). in the instruction as to damages, because

Medical manufacturing corporation held there was some evidence that rope sold as properly restrained from using in its name high as 25 and 30 cents per pound between "Vick” or “Vicks” used and registered under April 1, 1921, and the time of the resale of Act Feb. 20, 1905, § 5 (Comp. St. § 9490), by

similar corporation, and adopted by former for the rope by plaintiff on June 14, 1922. This

fraudulent purpose. contention of defendant arises from a misconception of plaintiffs' action, which is an 4. Trade-marks and trade-names and unfair

competition Om 100—Court held not required action for damages for breach of contract,

to pass on sufficiency of changes in dress of and not an action to recoger the difference

product pending suit, nor was proper decreo between the contract price and the price ob- rendered erroneous by such changes. tained on resale.

Court, in trade-mark infringement and un[7] In the case of a buyer's breach of a

fair competition suit, held not required to pass contract for the sale and purchase of goods dress of its product, while suit was pending,

on sufficiency of changes made by defendant in the seller has an election of three remedies: nor was decree, warranted by facts established, (1) To treat the property as his own and rendered err eous by such changes. sue for damages; (2) as the property of the buyer and sue for the price; (3) as the Appeal from the District Court of the property of the buyer, and to resell it for United States for the Southern District of kim, and sue for the difference between the Georgia; William H. Barrett, Judge,

11 F.(20)-3

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