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Pierce v. Guittard.

At the trial plaintiff was nonsuited, and the appeal is from the judgment given against him, as also from an order refusing him a new trial.

The plaintiff, after giving evidence that for many years he has manufactured at Dorchester, Massachusetts, a chocolate under the name of "German Sweet Chocolate," put up in the form and manner stated in the complaint, and sold throughout the country, testified as follows: "I applied the name of German Sweet Chocolate' to that chocolate at Dorchester in 1866. I applied it because it was a good name, and I wished to place upon the market a new brand of sweet chocolate of improved manufacture. I got the name from Samuel German, and he authorized me to use it. In June, 1866, about the time I commenced the manufacture, I obtained it because I wanted to use his name, and I wanted his authority to use it. In the earlier years of the manufacture by me. of German Sweet Chocolate,' Samuel German was personally engaged in the manufacture of it, but owing to his advancing age and infirmities, he has been given lighter work to do since. The German Sweet Chocolate' has been sold and known to the trade under that name, and by the labels I have mentioned since 1866. At the time I had adopted the name and those labels no other chocolate was sold or known to the trade under similar symbols, or under a name of which the word 'German' formed a part. I appropriated the name German Sweet Chocolate, made by S. German, Dorchester, Mass.,' to my exclusive use, as a trade-mark for that chocolate, with the design, symbol, and device as appear by the labels I have mentioned, and I still claim the same, as I always have, as my trade-mark."

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The witness gave further testimony tending to show that he has ever since sold his chocolate extensively throughout the United States and received pecuniary profits therefrom, and that the chocolate sold by the defendants under the name of "Sweet German Chocolate" is of inferior quality. Other witnesses testified that the chocolate sold by defendants is inferior to that of the plaintiff, and is bought by the jobbers at a less price than plaintiff's chocolate can be bought for, and is retailed by them to the public as and for the "German Sweet Chocolate" of the plaintiff.

A witness named Doyle testified on behalf of the plaintiff that he was in the employ of the defendants as foreman at the time their label was gotten up, and had formerly been connected with a large

Pierce v. Guittard.

house in New York that had the New York agency for Walter Baker & Co., of which firm the plaintiff was sole member, and that he was consulted by defendants in regard to the name to be put on their label; that defendant Guittard asked him what Walter Baker & Co. called their chocolate, and he replied " German Sweet Chocolate, when Guittard said: "We will reverse it, and call ours Sweet German Chocolate." This witness further testified: "I had many conversations with Guittard about Baker's chocolate before the one I have mentioned. The object of those consultations was to get at Baker's customers, whom I knew, being connected with the house that was their New York agent. That was the beginning of the consultations about Baker. He asked me who were the largest

customers we had for Baker's goods in consultations we had, and I gave him the name of the large firms in Philadelphia, New York, Chigago, etc., to whom he sold his Sweet German Chocolate.".

Upon this state of facts, which as the case is presented we must accept as true, we are of opinion that it is not necessary to decide whether the plaintiff's label with the accompanying words and devices constituted a trade-mark, and as such the exclusive property of the plaintiff, for the reason that it is a fraud on a person who has established a business for his goods and carries it on under a given name or with a particular mark, for some other person to assume the same name or mark, or the same with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a representation to the name or mark. Lee v. Haley, L. R., 5 Ch. App. 155. "Equity gives relief," said the Supreme Court of the United States in McLean v. Fleming, 96 U. S. 251, "upon the ground that one man is not allowed to offer his goods for sale representing them to be the manufacture of another trader in the same commodity. Suppose the latter has obtained celebrity in his manufacture, he is entitled to all the advantages of that celebrity, whether resulting from the greater demand for his goods or from the higher price the public are willing to give for the article, rather than for the goods of the other manufacturer, whose reputation is not so high as a manufacturer. Where therefore a party has been in the habit of stamping his goods with a particular mark or brand, so that the purchasers of the goods having that mark or brand know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp; because by doing so he would be substantially

Hand v. Hand.

representing the goods to be the manufacture of the person who first adopted the stamp, and so would, or might be, depriving him of the profit he might make by the sale of the goods which the purchaser intended to buy."

That the unlawful purpose was deliberately designed and effectuated clearly appears from the testimony given at the trial. The motion for nonsuit should therefore have been denied.

Judgment and order reversed, and cause remanded for a new trial..

Judgment reversed and cause remanded. MORRISON, C. J., MYRICK and MCKEE, JJ., concurred. Rehearing denied.

HAND V. HAND.

(68 Cal. 185.)

Marriage- estoppel of married woman by acknowledgment.

The plaintiff was married in 1855, in England, to a man who was then and ever since has been a resident of that country. From 1863 to 1878 she lived in adultery with the defendant in California, passing as his wife, but he being cognizant of her marriage. In 1873 she conveyed to the defendant lands in California, acknowledging the deed as a single woman. Held, that she could not avoid the deed for that reason. (See note, p. 7.)

UIT to quiet title. The opinion states the case. The defend

Sumt

ant had judgment below.

George D. Shadborn, for appellant.

Lloyd & Wood, for respondent.

MORRISON, C. J. This case, which comes before us on the judgment roll, is a suit to quiet title to certain lots of land in the city of San Francisco. It is conceded that the property in question was at one time owned by the plaintiff, it having been purchased and paid for with her separate funds. But it is claimed that the defendant has succeeded to the ownership thereof by virtue of certain instruments, executed by the plaintiff to the defendant. The sufficiency of those instruments to convey the title is the question before us. It was held in the Superior Court that the defendant

Hand v. Hand.

had acquired the title of the plaintiff, and judgment was rendered in his favor. The appeal is from the judgment.

It appears from the findings in the case that the plaintiff was a married woman, her husband being a resident of England, but for a great many years living separate and apart from her husband. As early as 1863, a meretricious union was formed by plaintiff and defendant, and they had lived in California as husband and wife from 1863 down to the year 1878. The first finding is: "that plaintiff is, and ever since the sixth day of October, 1855, hath been, the lawful wife of one William Nickels."

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"2. That during all this time the said William Nickels hath been and still is a resident of Colchester, England, and hath never been in the State of California, or in the United States of America.

"3. That plaintiff and said Nickels have not lived or cohabited together since 1863, but that plaintiff and defendant lived and cohabited together as husband and wife from 1863 to 1878; that plaintiff has been a resident of this State continuously since 1868:"

It is conceded on both sides that the certificate of acknowledgment to the deed attempting to convey the property in question, made by plaintiff to defendant under the name of Mary Ann Hand, on the thirteenth day of August, 1873, is not in the form prescribed by the statute for the deeds of married woman, but as the eleventh finding shows, is in the form prescribed by the statute for the acknowledgment of a feme sole, and not in the form prescribed for the acknowledgment of a married woman. Afterward, to-wit, on the twenty-seventh day of July, 1878, she executed another instrument to the defendant, acknowledged in like manner, which said instrument was in the name of Mary Ann Halls.

But was the conduct of the plaintiff such as to take from her the right to invoke the statute referred to for the purpose of defeating her deed? We are of the opinion that it was. During the entire period of her residence in California, she was never known as the wife of Nickels, but passed as the wife of Hand, with whom she was living as his wife, but to whom it is not pretended she ever was married; and a part of the time she passed by her maiden name of Mary Ann Halls. Indeed, she had done all she could do, in the absence of a legal divorce, to separate herself from her lawful husband, and after many years ignoring her husband, she seeks to avail herself of the plea of marriage to defeat an instrument made and delivered by her as her deed. This case does not differ in principle from that

Hand v. Hand.

of Reis v. Lawrence, decided by this court, and reported in 63 Cal. 129; s. c., 49 Am. Rep. 87. See also Rosenthal v. Mayhugh, 33 Ohio St. 155; s. c., 49 Am. Rep. 87.

There are other points made by the respondent, but it is not necessary to consider them, as we think the judgment must be affirmed on the one already stated.

Judgment affirmed.

MYRICK, J., concurred; THORNTON, J., concurred in the judg

ment.

Ross, J., concurring. I agree that the plaintiff should be regarded as a single woman. The property to which she asserts title was acquired by her in this State. Her husband has never been within the United States. For twenty odd years she has repudiated her marital relations, and conducted herself without regard to them. Under such circumstances, to permit her to fall back upon them and avoid her deed, on the ground that the certificate of the notary does not recite that she was examined "separate and apart" from her husband, with whom she has held no relations for more than twenty years, and who has never been in this country, seems to me to be beyond all reason. I therefore concur in the conclusion reached by the chief justice.

NOTE BY THE REPORTER. MCKEE, J., dissenting, said: "I think the decision is against the evidence and law, because, as the conveyance of the separate estate of a married woman, the alleged deed was a nullity. A married woman, although living adulterously with another, can convey her separate real property without the consent of her husband. But the law has regulated for her, as it has done for every one capacitated to transfer property, the mode by which she may transfer her separate real property, and she cannot transfer it in any other mode than that prescribed by the law.

"But it is insisted that as the plaintiff acted and represented herself as a feme sole, she is estopped to deny the validity of the instrument as a convey

ance.

There was no

"That assumption is not founded in the facts of the case. evidence given that she acted and represented herself as a feme sole. Certainly not to the defendant, for he all along knew her true status. It is true that she concealed from the public the fact that she was the wife of Nickels; but defendant, as her paramour, was not ignorant of the fact; he knew it all along, and joined the plaintiff in promulgating the falsehood as to her marital relations with another. As particeps criminis, how then, was the defendant deceived by any act or representation of the plaintiff?

"As I understand it, the doctrine of estoppel can only be invoked to preelude a party who has made a false representation knowingly, with intent

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