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TRADEMARKS are for the purpose of pointing out the source, origin, or ownership of the goods to which they are applied, or the dealer's place of business; and they usually include the name of the manufacturer or dealer, though they sometimes consist of some novel device, arbitrary character, or fancy word, applied without special meaning, and which, by use and reputa. tion, comes to serve the same purpose: Gessler v. Grieb, 80 Wis. 21; 27 Am. St. Rep. 20. An exclusive proprietary right cannot be acquired in a word which is a generic term, and in its nature descriptive of that to which it pertains, rather than its origin or proprietorship: See note to Keasbey v. Brooklyn Chemical Works, 40 Am. St. Rep. 630. The right to a trademark is derived from its appropriation and continued user: Caswell v. Hazard, 121 N. Y. 484; 18 Am. St. Rep. 833. A trademark affixed to articles manufactured at a particular place may be lawfully sold and transferred with the estab. lishment: See note to Fish Brothers Wagon Co. Y. La Belle Wagon Works, 33 Am, St. Rep. 82. But a voluntary assignment of a tradeinark may probably be effected without especially mentioning it, as where a business is sold, and the goodwill thereof assigned: See monographic note to Symonds v. Jones, 17 Am. St. Rep. 496, discussing the assignment of trademarks of which the assignor's name is a part. Thus, if a manu. factory of wagons, in which the names of the founders of the business and a rebus to represent their surname have been used as trademarks, is sold and assigned to a corporation, the corporation acquires by the sale and as. signment the goolwill of the original business, and the right to use such names and rebus as trademarks, although they were not specifically men. tioned in any of the transfers of the business to the corporation. But, if there has been no agreement to give to the corporation the exclusive right to use such names and rebus and trademarks, a new firm composed of such original founders of the business transferred to the corporation may use the same names and rebus in advertising wagons made by them, provided they do not use them in a way calculated to induce persons to buy the same as and for those manufactured by the corporation. The new firm, however, has no right to represent that their business is the same as that originally conducted by them: Fish Brothers Wagon Co. v. La Belle Wagon Works, 82 Wis. 546; 33 Am. St. Rep. 72. One who has infringed the trademark of an. other may be restrained by an injunction from making use of the imitation: Note to Liggitt etc. Co. v. Reid etc. Co., 24 Am. St, Rep. 316. When a trade. mark is calculated to deceive, an intention to deceive will be presumed, and an injunction to prevent its use will be granted: Note to Radam v. Capital Microbe Destroyer Co., 26 Am. St. Rep. 793.
BERGERON v Miles.
[88 WISCONSIN, 897.) DECEIT—JOINT PURCHASE OF LAND.-If one party induces another to join
with him in the purchase of land, each to pay one-half of the purchase price, which the former falsely represents to be greater than it really is, and the latter gives the former one-half of such excessive price to be used in paying for his share, and the former pays for the land with a smaller amount, keeping the remainder himself, the deceit is action. able and the latter may recover the amount paid in excess of his share of the actual price, though the land is worth the price represented.
ACTION to recover money obtained by deceit. Defendant, Miles induced the plaintiff, Bergeron, to join with him in the purchase of certain land, each to pay one-half of the purchase price. Miles falsely represented the purchase price to be eight thousand dollars, when, in fact, it was but three thousand. Bergeron gave Miles four thousand dollars to be used in paying for his share. Miles paid out three thousand dollars of this money for the land, this being its actual purchase price, and kept the remaining one thousand dollars himself. There was a judgment for the plaintiff for two thousand five hundred dollars, and the defendant appealed.
T. J. Connor and H. H. Hayden, for the appellant.
398 NEWMAN, J. On the question whether the relation of the parties was such that the deceit practiced upon the plaintiff by the defendant will support the action, the case very much resembles Grant v. Hardy, 33 Wis. 668. To make the deceit actionable it is not necessary that the relation of the parties to each other shall be that of partners or tenants in common. Other relations which require and inspire trust and confidence to be reposed by the party de ceived in the other may be sufficient to bring the case within the rule, as stated in Grant v. Hardy, 33 Wis. 674. If the defendant was under no obligation to the plaintiff to tell him all he knew about the land he was, at least, under obligation not to deceive him by false statements with reference to it or the price at which it was to be bought by them. This he did, and so obtained from him much more than plaintiff's share of the price.
It is not denied that the defendant purposely deceived the plaintiff as to the purchase price of the land. Plaintiff sup. posed that the price to be paid was eight thousand dollars. It was, in truth, only three thousand dollars. As it was represented to plaintiff, his share of the price was four thousand dollars. In truth, his share of the 399 price was only one thousand five hundred dollars. He gave to the defendant, on his representation, two thousand five hundred dollars more than his share of the price and more than he would have given if the defendant had not deceived him. Yet it is argued that this deceit is not actionable, because, it is said, the plaintiff was not damaged by it. This contention
is based upon the assumed fact that the bargain was a good one at the price of eight thousand dollars. It must be evident that it would have been a better bargain at the price of three thousand dollars. The plaintiff was entitled to his share of the full profit of the bargain. He was entitled to all the profit there was in the bargain by paying only his share of the price. Whatever he has paid more than his share of the price, by so much is the value of his bargain diminished. This is damage. It is damage of which the deceit is the cause. The plaintiff paid two thousand five hundred dollars more than his share of the price. The judge ment of the circuit court is right, and is affirmed.
By the Court. Judgment affirmed.
Deceit.-An action for false representations, called also an action for deceit, may be maintained against a party who makes a false representation of a fact, with knowledge of its falsity, to one who is ignorant of the falsity, with intent that it shall be acted upon, where the person to whom it is made acts upon it, and by so doing suffers injury: See monographio note to Coltrill v. Krum, 18 Am. St. Rep. 555, 557, showing a conflict of authority upon the question as to whether an action will lie against a ven. dor of real estate for false representations made by him as to the price which he paid for the property.
LUEBKE V. BERLIN MACHINE WORKS.
[88 WIBCONSIN, 442.) MASTER AND SERVANT-ASSUMPTION OF RISK BY MINOR SERVANT.-In
working in a dangerous place an adult servant must take ordinary care to observe and ascertain what dangers and defects are incident to his service, and if, by the use of such care, he ought to observe and com. prehend such dangers or defects, he assumes all risk by continuing in the employment; but whether a minor servant is of sufficient age, intelligence, discretion, and judgment to bring him within the opera
tion of this rule is a question of fact for the jury. MASTER AND SERVANT_MINOR SERVANT'S KNOWLEDGE OF DANGER, HOW
DETERMINED.-A minor servant, in working in a dangerous place, must, as much as an adult, exercise the degree of intelligence, knowledge, and judgment actually possessed by him. The question, however, in such a caso, is not what the minor, in fact, knows or comprehends as to the danger to which he is exposing himself, but what he, in view of his age, intelligence, discretion, and judgment, ought to know and under stand. Action by the plaintiff as administrator of his deceased minor son, John Luebke, to recover damages sustained by
AX. ST. REP., VOL. XLINI -58
the plaintiff by reason of the death of such son, caused, as alleged, by the negligence of the defendant when he was in its employment. There was a verdict and judgment for the plaintiff, and defendant appealed. It appeared that the defendant owned and operated a foundry and machine-shop situated on and partly over a mill-race, along Rock river, at Beloit. A narrow plank foot-bridge, without a railing, extended from a platform of the building across the race to the east side of it. This bridge was used by those who had charge of the power to go to and from the shop and foundry to the power-house on the east side of the race. The core room of the foundry in which the plaintiffs' intestate, with other boys employed by the defendant, worked under a foreman making cores for castings, was a short distance south or below the bridge, and they required and used considerable flour in making them, which they obtained at a flour-mill on the opposite or east side of the race, a short distance above the east end of the bridge. There was a wagon bridge just below and south of the core-room, which was wide and safe, available to and sometimes used by the boys for getting flour from the mill. The evidence tended to show that they were never directed to go any particular way to get flour, or to use the foot-bridge, but went either way as they chose, that the defendant knew of and permitted the use of the foot-bridge by the boys for that purpose, and that the wheelbarrow they used was an old rickety one, and not a safe appliance for the purpose of bringing flour. Up to September 15, 1892, plaintiff's intestate, then a boy about sixteen years of age, had been in defendant's employ for several months. He was then, and had for some time been, at work in the core-room, it being his duty to make cores, attend to the fires, and to go after flour, etc. On the day in question he went over to the mill with the wheelbarrow to get flour. It did not appear that he had been specially directed to do so. He was advised by the miller to go back by way of the wagon bridge. He was not afterwards seen alive, and was taken out dead on the east side of the mill-race, the evidence tending to show that he must have fallen in about the middle of the foot-bridge. He left surviving him his father, the plaintiff, and his mother, each aged about fifty-five years and dependent in part on his services. Defendant asked the court to instruct the jury that "in determining whether the boy was of sufficient age, understanding, and experience to comprehend the dangers
to which the use of the bridge for carrying flour as he carried it on bis last trip exposed him, you are to consider his age and opportunities which he bad to observe the apparent danger of wheeling a barrel of flour across the mill-race upon the foot-bridge, and to determine, from all the facts and circumstances surrounding his death, whether or not he was of such an age and understanding that, even though he may not have fully apprehended it, yet that the danger was so open and apparent, if you find it to be so, that a boy of his age, experience, and understanding ought to have known it and ought not to have exposed himself to it.” This request was refused.
Winkler, Flanders, Smith, Bottum & Vilas, for the appellant.
Winans & Hyzer, for the respondent.
447 PINNEY, J. The evidence tends very strongly to show that the dangers to which the plaintiff's intestate was ex• posed in his service and in crossing the foot-bridge with the wheelbarrow loaded with flour, whether arising from the defective and dangerous construction of the bridge or the 448 use of the wornout and rickety wheelbarrow, were open and obvious, and that he must have been familiar with the situation for a period of about three months, during which he was engaged in the core-room, and immediately prior to the accident. Had he been an adult it is difficult to see upon what ground it could be said that he had not, as a matter of law, by continuing so long in the service of the defendant, assumed the risk of injury from those causes, so that the case ought not to have been submitted to the jury. It is well settled that if the alleged defect or element of danger is such that, in the exercise of ordinary care, the servant ought to have observed it and comprehended the danger likely to result, then he asbumed the risk if he continued in the employment: Haley v. Jump River L. Co., 81 Wis. 412, 421, 425; Dorsey v. Phillips etc. Const. Co., 42 Wis. 583; Ballou v. Chicago etc. Ry. Co., 54 Wis. 257; 41 Am. Rep. 31; Goltz v. Milwaukee etc. Ry. Co., 76 Wis. 136. The servant must take ordinary care to observe and ascertain whether any or what dangers are incident to his service. If the defect or danger is open and obvious, knowledge of it on his part will be presumed or imputed to him as a matter of law; and an adult servant is presumed to posBess ordinary intelligence, judgment, and discretion to ap