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that the facts have been correctly found, and that proper principles of law have been followed.
[Ed. Note.-For_other cases, see Equity, Cent. Dig. § 919; Dec. Dig. § 411.*]'
6. EQUITY (§ 413*)-MASTER'S REPORT-CON
A final decree, expressly confirming a master's report, makes the findings of fact contained in the report conclusive between the parties, though the decree is entered by consent.
[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 927-930; Dec. Dig. § 413.*] 7. TRADE-MARKS AND TRADE-NAMES (§ 98*)UNFAIR COMPETITION-ACCOUNTING.
Where the dealings of one guilty of unfair competition in adopting for his products the names adopted by another manufacturer for similar products were a substantial part of its entire business, and its general expenses were incurred for that part of its business, the court, in decreeing an accounting of the profits realized from the unfair competition, must deduct a part of the general expenses, to be determined by apportioning them in the ratio which its illegal sales bore to its total sales.
[Ed. Note.-For other cases, see TradeMarks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]
8. TRADE-MARKS AND TRADE-NAMES (§ 98*)UNFAIR COMPETITION-SUIT FOR ACCOUNT
In a suit for accounting by one guilty of unfair competition, defendant may prove the amount of its general expenses.
[Ed. Note.-For other cases, see TradeMarks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]
9. TRADE-MARKS AND TRADE-NAMES (§ 101*)
Plaintiff, suing for unfair competition, is entitled to costs, though he maintains only a part of his claim; defendant contesting such
[Ed. Note.-For other cases, see TradeMarks and Trade-Names, Cent. Dig. § 115; Dec. Dig. § 101.*]
with its product as a trade-mark strictly so called. This is correct. The word "Boston" nation; the word "Wafers" is nothing more is merely a territorial or geographical desigthan the ordinary name given to the article of confectionery made by each of these parties. Neither alone nor together could either one of these words be adopted as a trademark. This is on the broad principle stated by the Supreme Court of the United States in Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 31 Sup. Ct. 456, 55 L. Ed. 536, that no sign or form of words can be appropriated as a valid trade-mark which according to its primary meaning may with equal truth and equal right be employed by others for the same purpose. Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581: Brown Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247; Columbia Mill Co. v. Alcorn, 150 U. S. 460, 463, 14 Sup. Ct. 151, 37 L. Ed. 1144; Kann v. Diamond Steel Co., 89 Fed. 706, 32 C. C. A. 324; Postum Cereal Co. v. American Health Food Co., 119 Fed. 848, 852, 56 C. C. A. 360; American Wine Co. v. Kohlman (C. C.) 158 Fed. 830; Cellular Clothing Co. v. Maxton  A. C. 326; S. Chivers & Sons v. S. Chivers & Co., 17 R. P. C. 420.
 But it is also true that a merely descriptive epithet or the name of a person or of a place may become so associated with a particular kind of goods, or with the specific product of a particular manufacturer, that the mere attaching of that word to a similar product without more would have all the effect of a falsehood; and in such a case, while the use of that word cannot be absolutely prohibited, it may be restrained unless accompanied with sufficient explanations or precautions to prevent confusion
Case Reserved from Supreme Judicial with the goods of the original manufacturer Court, Suffolk County.
Suit by the C. A. Briggs Company against the National Wafer Company to enjoin the use of the words "Boston Wafers" on labels, packages, advertisements, etc. Cause reserved for the full court. Decree for complain
Percy W. Carver, Arthur G. Carver, and Otto C. Scales, all of Boston, for plaintiff. W. K. Richardson and J. L. Stackpole, both of Boston, for defendant.
or vendor. American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Viano v. Baccigalupo, 183 Mass. 160, 67 N. E. 641; Cohen v. Nagle, 190 Mass. 4, 8, 14, 76 N. E. 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553; Elgin National Watch Co. V. Illinois Watch Co., 179 U. S. 665, 674, 21 Sup. Ct. 270, 45 L. Ed. 365; Herring-HallMarvin Safe Co. v. Hall's Safe Co., 208 U. S. 554, 27 Sup. Ct. 780, 51 L. Ed. 331, affirming with modification s. c., 146 Fed. 37, 76 C. SHELDON, J. The principal question in C. A. 495, 14 L. R. A. (N. S.) 1182; A. Bauer this case is whether the plaintiff has the & Co. v. La Société Anonyme de la Distilright to restrain the defendant from using, lerie de la Liqueur Bénédictine de L'Abbaye outside of the territory which was specified de Fecamp, 120 Fed. 74, 56 C. C. A. 480; in the former decree of this court, the words Shaver v. Heller & Merz Co., 108 Fed. 821, "Boston Wafers" as the name of the articles 48 C. C. A. 48, 65 L. R. A. 878; Royal Bakwhich it manufactures and sell in competi- ing Powder Co. v. Royal, 122 Fed. 337, 58 C. tion with the plaintiff. The answer to this C. A. 499; Wolf Bros. & Co. v. Hamiltonquestion depends upon well-settled principles. Brown Shoe Co., 165 Fed. 413, 91 C. C. A.  It practically has been conceded in ar- 363; Wotherspoon v. Currie, L. R. 5 H. L. gument that the plaintiff has no exclusive 508; Montgomery v. Thompson  A. C. right to the use of these words in connection 217. Even though a word or a combination
of words is incapable of becoming a valid | protected in the whole of the United States. trade-mark, yet if it has by a sufficiently In Cohen v. Nagle, 190 Mass. 4, 76 N. E. long and exclusive use acquired such a sec- 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553, ondary meaning as to indicate in the trade that the goods to which it is applied are made by. a particular manufacturer or are put upon the market by a particular vendor, its use by another upon similar goods in such a way as to be likely to deceive purchasers will be restrained as unfair competition; and its use even in its primary meaning will be so limited as to prevent the working of a probable deception by passing off the goods of one maker as those of another. New England Awl & Needle Co. v. Marlborough Awl & Needle Co., 168 Mass. 154, 46 N. E. 386, 60 Am. St. Rep. 377; W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co., 100 Me. 461, 62 Atl. 499, 4 L. R. A. (N. S.) 960; Drake Medicine Co. and Drake v. Glessner, 68 Ohio St. 337, 67 N. E. 722; Sartor v. Schaden, 125 Iowa, 696, 101 N. W. 511; Dyment v. Lewis, 144 Iowa, 509, 123 N. W. 244, 26 L. R. A. (N. S.) 73; People v. Rose, 219 Ill. 46, 76 N. E. 42; Northwestern Knitting Co. v. Garon, 112 Minn. 321, 128 N. W. 288; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997; American Waltham Watch Co. v. Sandman (C. C.) 96 Fed. 330; Computing Scale Co. v. Standard Computing Scale Co., 118 Fed. 965, 967, 55 C. C. A. 459; Siegert v., Gandolfi, 149 Fed. 100, 79 C. C. A. 142; Lowe Bros. v. Toledo Varnish Co., 168 Fed. 627, 94 C. C. A. 83; Guastavino Co. v. Comerma (C. C.) 184 Fed. 549; Gillett v. Lumsden, 4 Ont. L. R. 300; Lee v. Haley, L. R. 5 Ch. 155; Powell v. Birmingham Brewery Co.  2 Ch. 54, and  App. Cas. 770.
it appeared that the plaintiff manufactured and sold cigars under the name "Keystone," and that, although this word did not constitute a trade-mark, it had come to be understood in New England to indicate cigars made by the plaintiff. It was held that he had a right to be protected, at least in New England, against the acts of the defendant, who was applying that name to cigars of his own make. A final decree was entered in the case, enjoining the defendant from using that word in the New England states; and only the defendant appealed from that decree. The decree was affirmed; and it was said in the opinion of the majority of the court that, as the plaintiff had not appealed from the decree, it was not open to the defendant to complain that the decree was too narrow and that it should have been made without geographical limitations. But three of the justices considered that as it had not been shown that the secondary or acquired meaning of the words "Keystone" extended beyond New England, the injunction rightly was confined to that territory. That is, three of the justices were strongly of the opinion that one who uses a name not strictly a trade-mark, and who has procured for that name a secondary meaning which entitles him to protection against unfair competition in its use, is entitled to such protection only within the territorial boundaries beyond which he has not succeeded in extending the meaning upon which his rights depend; and four justices did not find it necessary to express any opinion upon the subject. That question now must be decided.
[3, 4] The master has found that in some of the states of the "outside territory," that is, the states not covered by the decree in the former case, the words "Boston Wafers" had when this bill was filed acquired such a secondary meaning in the trade as to indicate that the wafers to which these words were applied were the product of the plaintiff, manufactured and sold by it; that this was the case in Ohio, Michigan, Virginia and portions of West Virginia; but he has not found that in the other states included in the "outside territory" the plaintiff has by its use of these words gained for them the secondary meaning which has been stated. The defendant has applied these words to its own goods in the states which have been mentioned as well as elsewhere, with the intention of diverting to itself the trade of the plaintiff; that is, as we feel bound to interpret the language of the report, with the intention of availing itself of the reputation of the plaintiff's goods and procuring sales of its own goods to purchasers either at wholesale or at retail, who may be led to believe that they are buying goods made by Taendsticksfabriks Aktiebolagat Vulcan the plaintiff. Under these circumstances, the plaintiff contends that this constitutes unfair
We do not doubt that the plaintiff is entitled to relief within the four states which have been mentioned, unless some of the specific objections which have been made by the defendant are to be sustained. The point is settled in favor of the plaintiff by Cohen v. Nagle, ubi supra. The case, as to these four states, comes within the general doctrine applicable alike to trade-marks and to cases of this kind, that one has a right to be protected in selling his goods against the unfair competition of any others who may seek by imitating his brands or the style of his packages to palm off their goods as his. Hildreth v. D. S. McDonald Co., 164 Mass. 16, 41 N. E. 56, 49 Am. St. Rep. 440; George G. Fox Co. v. Glynn, 191 Mass. 344, 78 N. E. 89, 9 L. R. A. (N. S.) 1096, 114 Am. St. Rep. 619; George G. Fox Co. v. Hathaway, 199 Mass. 99, 85 N. E. 417, 24 L. R. A. (N. S.) 900; Reading Stove Works v. S. M. Howes Co., 201 Mass. 437, 87 N. E. 751, 21 L. R. A. (N. S.) 979; Forster Manuf. Co. v. CutterTower Co., 211 Mass. 219, 97 N. E. 749;
Myers, 139 N. Y. 364, 34 N. E. 904; Gorham
828; American Tin Plate Co. v. Licking Rol- | against the defendant was made general, aller Mills (C. C.) 158 Fed. 690; Holeproof though the plaintiff had sold his goods only Hosiery Co. v. Wallach Bros. (C. C.) 190 Fed. 606; Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 Fed. 720; Notaseme Hosiery Co. v. Straus (C. C. A.) 201 Fed. 99; Saxlehner v. Appolinaris Co.  1 Ch. 893.
in the Indian market; but that was a case of the infringement of a trade-mark and not of unfair competition merely, and the decision is not applicable here. In Northwestern Knitting Co. v. Garon, 112 Minn. 321, 128 N. W. 288, the plaintiff's business and its consequent right of protection had extended throughout the United States.
We are satisfied that the plaintiff is entitled to relief only against the making of sales under its brand in the states of Ohio, Michigan, Virginia and West Virginia.
As to the wrappers, we are of opinion upon the facts found by the master that the rights of the plaintiff will be sufficiently guarded if the defendant is enjoined from using in the states last mentioned the words "Boston Wafers," or other words or symbols to like effect, in substantially the same language that was used in the final decree entered in the former suit.
It remains to consider the exceptions to the master's report and the specific questions thereon which have been argued before us.
As a matter of sound reasoning, it seems difficult to extend the rights of the plaintiff beyond the ground on which those rights are rested. Its whole case depends upon the fact that the words "Boston Wafers" have acquired in the trade a secondary meaning by which they signify not merely or necessarily that the goods were made in Boston (Wotherspoon v. Currie, 42 L. J. [N. S.] Ch. 130, and L. R. 5 H. L. 508), but that they were made by the plaintiff. Where the words have not gained that meaning, no rights of the plaintiff are infringed by the defendant's use of them. The defendant has the right to imitate the labels and wrappers of the plaintiff where this involves no infringement of a trade-mark and no attempt to get the benefit of the public's desire to have goods made by the plaintiff. Flagg Mfg. Co. v. Holway, 178 Mass. 83, 59 N. E. 667. Where the secondary meaning of the words was unknown, no purchaser could have understood them in any but their primary sense, and no purchaser could have been deceived by their use. Columbia Mill Co. v. Alcorn, 150 U. S. 460, 463, 14 Sup. Ct. 151, 37 L. Ed. 1144; Parsons v. Gillespie,  A. C. 239. The gist of the action is not the harmless use of the particular words and symbols, but the appropriation of the plaintiff's business. Rains & Sons v. White, Haucke & Co., 107 Ky. 114, 52 S. W. 970; Banzhaf v. Chase, 150 Cal. 180, 88 Pac. 704; And see Clark Thread Co. v. William Clark Co., 56 N. J. Eq. 789, 40 Atl. 686; Baker v. Baker, 115 Fed. 297, 53 C. C. A. 157; J. F. Rowley Co. v. Rowley, 193 Fed. 390, 393, 113 C. C. A. 386. See also the reasoning of Loring, J., in Cohen v. Nagle, 190 Mass. 4, 16, 76 N. E. 276, 2 L. R. A. (N. S.) 964, 5ple. Pratt v. Lamson, 6 Allen, 457; Trow
Ann. Cas. 553, et seq.
 The record of the former suit rightly was admitted in evidence. The case had been fully heard by the master, and he had made a comprehensive report in which he had stated his findings upon all the questions of fact that were raised before him. This report stood practically upon the same footing as that upon which the verdict or the special findings of a jury would have stood. might have been modified or reversed in part or recommitted to the master if any error appeared to have been made, or if any good reason for such action had been shown. But in the meantime the presumption existed that the facts had been correctly found, that and that all matters had been rightly dealt proper principles of law had been followed with. It is enough to cite a few of the with. It is enough to cite a few of the many cases which have affirmed this princi
v. Berry, 113 Mass. 139; Jones v. Keen, 115
Mass. 170, 181, 182; Morrell v. Kelley, 157
In Carroll v. McIlvaine (C. C.) 171 Fed. 125, and (on appeal) 183 Fed. 22, 105 C. C. A. 314, the protection given to a plaintiff against unfair competition was confined to the territorial limits within which he had carried on his business and gained his rights. So in Cellular Clothing Co. v. Maxton  A. C. 326, the court refused to enjoin the use of the words "cellular clothing" in Scotland, because there the words had only their primary signification. To the same effect see S. Chivers & Sons v. S. Chivers & Co., 17 R. P. C. 420. The same rule was applied be No fault however was found in the fortween different parts of the same state in mer case with the report; but a decree was Eastern Outfitting Co. v. Manheim, 59 Wash. entered thereon expressly confirming the re428, 110 Pac. 23, 35 L. R. A. (N. S.) 251. So port and granting relief in accordance with too in Sartor v. Schaden, 125 Iowa, 696, its findings. This was a final decree, and 704, 101 N. W. 511, and Corwin v. Daly, 7 whatever had been in issue between the parBosw. (N. Y.) 222. In Orr Ewing & Co. v. ties became res judicata. Stone v. St. Louis
 The plaintiff does not seek to recover any damages as such. It desires only an accounting for the profits which the defendant has realized from its wrongful sales.
It appears from the master's report that the defendant has made substantial profits from its sales of goods bearing the plaintiff's label or an imitation thereof, unless a deduction is made of a part of its general expenses to be determined by apportioning them in the ratio which its sales of Boston Wafers bear to its total sales. If such a deduction is made, the defendant has obtained no profit from the sales in question.
Corbett v. Craven, 193 Mass. 30, 78 N. E. 748; | Raymond v. Royal Baking Powder Co., 85 Pray v. Hegeman, 98 N. Y. 358; People v. Fed. 231, 29 C. C. A. 245; Eiseman v. Schiffer Rickert, 159 Ill. 496, 42 N. E. 884; Bodkin v. (C. C.) 157 Fed. 473. The master was not Arnold, 45 W. Va. 90, 30 S. E. 154; Smith v. bound to find, if indeed he properly could Clark, 37 Utah, 116, 106 Pac. 653, 26 L. R. A. have found, that the plaintiff had acquired (N. S.) 953, 960, Ann. Cas. 1912B, 1366; any exclusive right to the use of the words Washington, Alexandria & Georgetown Steam "Boston Wafers" by reason of these words Packet Co. v. Sickles, 24 How. 333, 16 L. Ed. having come to mean goods made by the 650; Campbell v. Rankin, 99 U. S. 261, 263, plaintiff, in the "outside territory" other 25 L. Ed. 435; Green v. Bogue, 158 U. S. 478, than the four states which have been named. 15 Sup. Ct. 975, 39 L. Ed. 1061; Empire State But he had a right to find, and we do not Nail Co. v. American Solid Leather Button criticise his finding, that the words had acCo., 74 Fed. 864, 21 C. C. A. 152; G. & C. quired that secondary meaning in those four Merriam Co. v. Saalfield, 190 Fed. 927, 111 states. C. C. A. 517. The confirmation of the master's report by the decree made the findings of fact contained in the former conclusive between the parties. Nash v. Hunt, 116 Mass. 237, 249; Chicago Lumber Co. v. Bancroft, 64 Neb. 176, 89 N. W. 780, 57 L. R. A. 910. Nor is it material that this final decree was entered by the consent of the parties. The issues had been judicially considered by the master, and his report had been made to the court. It was like a judgment at law entered by consent of the parties after and upon the verdict of a jury, which, as we have seen, closely resembles the report of a master. Accordingly such cases as B., C. R. & N. R. Co. v. County of Benton, 56 Iowa, 89, 8 N. W. 797, and Jenkins v. Robertson, L. R. 1 H. L. Sc. 117, are not applicable here. The decree is not less conclusive because it was entered by consent. Horton v. Baptist Church, 34 Vt. 309; Holmes v. Rogers, 13 Cal. 191; David Bradley Manuf. Co. v. Eagle Manuf. Co., 57 Fed. 980, 6 C. C. A. 661; Webb v. Webb, 3 Swanst. 658. Indeed, but for the reservation contained in that decree, it well might have been contended that it was a bar to the present suit. Whitman v. Boston & Maine R. R., 16 Gray, 530; Foye v. Patch, 132 Mass. 105; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co. (C. C.) 65 Fed. 426.
After examining carefully the reported evidence and the report itself, we cannot say that any of the master's findings of fact are erroneous. So far as we perceive, the findings were well warranted, and we discover no reason to interfere with them. The evidence as to the earlier use of the name "Boston Wafers" by other parties, or as to the limited extent and character of its use by the plaintiff, was not such as to require the inference that those words had not acquired the secondary meaning claimed by the plaintiff. Cohen v. Nagle, 190 Mass. 4, 11, 76 N. E. 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553; Menendes v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526; Celluloid Manuf. Co. v. Cellonite Manuf. Co. (C. C.) 32 Fed. 94; Brower v. Boulton, 58 Fed. 888, 7 C. C. A.
It has been held by the Supreme Court of the United States that such a deduction should be made in ascertaining the profits realized by the infringer of a patent. The Tremolo Patent, 23 Wall. 518, 23 L. Ed. 97. The same rule has been followed since that decision in trade-mark cases and cases of unfair competition, some of which are collected in Regis v. H. A. Jaynes & Co., 191 Mass. 245, 77 N. E. 774. In the last-named case, this court declined to follow the rule of The Tremolo Patent, ubi supra, deeming it inapplicable to the facts before the court. In the Regis Case, the defendants were carrying on a large business, of which their dealings in goods bearing the plaintiff's trademark constituted only a small part, and the defendants' general expenses did not appear to have been at all increased by those dealings. Here the defendant's dealings in Boston wafers have been a substantial and integral part of its entire wafer and lozenge business, averaging about 10 per cent. thereof; and its general expenses were incurred for this department and its increase and extension just as for any part of its business. The defendant has used considerable and cumulative effort to push and increase these sales, very probably more than it has applied to other parts of its business. While there is no direct evidence on the subject, it seems manifest to us, looking at the master's report, that the defendant's general expenses have been at least proportionally increased by this department. The rule adopted in The Tremolo Patent, ubi supra, is the general rule, to be applied where special circumstances do not make its application unjust.
252, 83 N. E. 16; Rubber Co. v. Goodyear, 9 Wall. 788, 19 L. Ed. 566; Winchester Repeating Arms Co. v. American Buckle & Cartridge Co. (C. C.) 62 Fed. 278, 280; Kissinger-Ison Co. v. Bradford Belting Co., 123 Fed. 91, 59 C. C. A. 221; Walter Baker & Co. v. Slack, 130 Fed. 514, 65 C. C. A. 138.
Nor can we say that the master's finding on this point was erroneous, although undoubtedly there were circumstances pointing in the other direction, and these have been made the most of in the argument for the plaintiff.
Our conclusion must be that on the whole case the plaintiff can recover nothing by way of profits.
he was the owner and entitled to possession of them.
Cent. Dig. §8 367-395, 456; Dec. Dig. § 94.*1 [Ed. Note.-For other cases, see Carriers, §§
3. CARRIERS (§ 94*)-ACTION FOR FAILURE TO
DELIVER-DIRECTION OF VERDICT.
Where plaintiff, in an action against a carrier for damages for his failure to deliver goods, had the burden of proving ownership or lading to himself as consignee, which was some right to possession, and produced only a bill of evidence of title, he was not entitled to a directed verdict, since where one party has the burden of establishing facts affirmatively, and the substantial part of his evidence is either oral or consists of inferences to be drawn from circumstances, it is rarely that it can be ruled as a matter of law that such a party is entitled
to a verdict.
Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*1 [Ed. Note.-For other cases, see Carriers, 4. SALES (§ 296*) - REMEDIES OF SELLER
 The plaintiff has not contended that the evidence referred to in its fourth and sixth exceptions was erroneously admitted, if it was competent, as we think it was, for the defendant to prove the amount of its gen-vored by commercial law, and endures so long
The result is that of the defendant's exceptions to the master's report the thirtieth, thirty-first, thirty-second, thirty-third and part of the twenty-ninth must be sustained. All the other exceptions of either party must be overruled. We do not understand the defendant to have made any claim that the state of West Virginia should not be treated as an integral whole. If that be so, the final decree will enjoin the defendant from selling or offering for sale in the states of Ohio, Michigan, Virginia and West Virginia any wafers of which the packages.bear the name "Boston Wafers," etc., substantially in the language of the final decree entered in the former case between these parties.
 Under the circumstances, we are of opinion that the plaintiff should be allowed its costs; for although it has maintained only a part of the claim made in its bill, yet the defendant has contested even this part, and as to this part its conduct has been that of a mere wrongdoer. Final decree will be entered accordingly.
(215 Mass. 45)
COLEMAN v. NEW YORK, N. H. & H. R. CO.
(Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)
1. CARRIERS (8 70*)-TITLE TO GOODS-TITLE 1. CARRIERS (§ 70*)-TITLE TO GOODS-TITLE OF CONSIGNEE.
That a party is named as consignee in a bill of lading is some evidence of title, and his possession of such bill of lading would be evidence of his right to immediate possession of the goods.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 240-242; Dec. Dig. § 70.*] 2. CARRIERS (§ 94*)-ACTION FOR FAILURE TO DELIVER-BURDEN OF PROOF.
In an action for failure to deliver goods, the consignee has the burden of proving that
STOPPAGE IN TRANSITU-DELIVERY-CONSTRUCTIVE DELIVERY."
The right of stoppage in transitu is fa
as the goods remain in the possession of the carrier by virtue of the contract of carriage, and until there has been an actual or construçtive delivery to the consignee; a "constructive nized the title of the consignee, has attorned delivery" arising when the carrier has recogto it, and has agreed to hold the goods, not merely as carrier pending a complete delivery to the purchaser, but as agent for the purchaser under a new contract, assented to by both the carrier and the purchaser.
[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 837-847; Dec. Dig. § 296.*
For other definitions, see Words and Phrases, vol. 2, pp. 1469, 1470; vol. 8, p. 7613.] 5. SALES (8 296*)- REMEDIES OF SELLERSTOPPAGE IN TRANSITU TERMINATION OF TRANSIT.
The payment of freight is not a decisive evidence of the termination of the transit.
[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 837-847; Dec. Dig. § 296.*] 6. CARRIERS (§ 94*)-ACTION FOR FAILURE TO DELIVER QUESTION FOR JURY - RIGHT OF STOPPAGE IN TRANSITU.
On evidence in a consignee's action against a carrier to recover the value of goods returned by the carrier to the consignor, held, that the question whether the consignor still had the right of stoppage in transitu was a question of fact for the jury.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*] 7. SALES (§ 291*) REMEDIES OF SELLER STOPPAGE IN TRANSITU-"INSOLVENCY" OF BUYER.
The right of an unpaid seller to enforce his lien by possessing himself of the goods, whereof the buyer has acquired title, but not the possession, can be exercised only when the buyer is insolvent; "insolvency." in this connection, meaning not an adjudication by a court of competent jurisdiction, but simply inability to pay debts in the usual course of business, provable as an inference from convincing facts and circumstances.
[Ed. Note.-For other cases, see Sales, Cent. Dig. $$ 827-830; Dec. Dig. § 291.*
For other definitions, see Words and Phrases, vol. 4, pp. 3647-3655; vol. 8, p. 7689.] 8. CARRIERS (§ 158*)-LIMITING LIABILITYCONTRACT AS TO VALUE OF GOODS.
A provision in a bill of lading that the amount of the loss or damage for which any