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(125 N.E.)

which defendant had permitted to remain near the line of the street, question of what acts and conduct on part of defendant would measure up to the legal standard of ordinary care, which he was required to exercise to avoid injury to persons and property in street, held for jury.

[2, 3] By the fifth instruction, as well as by the seventh, the jury was told, in effect, that appellant was required by law to exercise active vigilance to see that the signboard was maintained in a reasonably safe condition. The court is of the opinion that the jury 4. NEGLIGENCE 122(1)-RULE REQUIRING would understand, from the language used, OWNER OF PERSONAL PROPERTY INJURED TO that the care exacted by the law from appelPROVE FREEDOM FROM CONTRIBUTORY NEGLI-lants was to be measured by some standard

GENCE HELD NOT CHANGED BY STATUTE.

In an action for injury to personal property, plaintiff has burden of alleging and proving freedom from contributory negligence, though Burns' Ann. St. 1914, § 362, shifts burden of proof as to contributory negligence in actions for personal injury or death to defendant.

other than that heretofore stated and univer

sally recognized. The jury would understand that the law required appellant to be constantly alert and watchful to see that the structure was at all times in a safe condition. It was for the jury to determine as a question of fact what acts and conduct on the part of

Appeal from Superior Court, Lake County; the defendant would measure up to the legal Virgil S. Reiter, Judge.

Action by Charles Musulin against the Standard Brewery. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court to the Supreme Court, under Burns' Ann. St. 1914, § 1394. Reversed, with instructions to sustain defendant's motion for a new trial.

Fred Barnett, of Hammond, and G. Raymond Collins, of Chicago, Ill., for appellant. Gavit, Hall & Smith and Roy E. Green, all

of Whiting, for appellee.

standard of ordinary care. By giving the instruction mentioned the court invaded the province of the jury. Union Traction Co. of Indiana v. Berry (No. 23230, this term) 121 N. E. 655.

[4] The court also erred in giving instruction No. 10, by which the jury was told that, in an action for damages resulting from injuries to personal property, contributory negligence is a defense. Under the rule followed in this state, the burden was on the plaintiff to allege and to prove freedom from contributory negligence in all actions for

LAIRY, J. This is an appeal from a judg-damages based on negligence, until that rule

ment for damages resulting from injuries to a team of horses owned by appellee. As shown by the complaint, appellant, being the owner of certain real estate adjacent to a street, negligently permitted a large signboard to be and remain on said real estate near the line of the street, which signboard fell outward into the street, striking appellee's horses and causing the injuries on which the claim in suit is based. The complaint alleges that the injury to the horses was caused solely by the negligence of appellant, and without any fault or negligence on the part of appellee.

The court overruled appellant's motion for a new trial, which ruling is assigned as error on appeal. Among the causes assigned for a new trial was the action of the trial court in giving certain instructions to the jury over the objections and exceptions of appellant.

[1] The owner of real estate, in constructing and maintaining the signboard under the facts shown by the record, owed a duty to use care for the safety of persons and property in the street, but the measure of care required to discharge the duty was only ordinary care, or such care as a person of ordinary prudence would have used under like conditions and circumstances.

58 (Burns' 1914, § 362). That statute prowas modified by statute. Acts of 1899, p. vides in substance that, in actions to recover damages resulting from personal injury or death of any person occasioned by the negligence of another, the burden of proving contributory negligence shall rest on the defendant. The statute cited does not change the rule in actions to recover damages for injury to personal property. In such actions the burden still rests on the plaintiff to allege and prove that the injury did not result from contributory negligence on his part. Cleveland, etc., R. Co. v. Tauer (1911) 176 Ind. 621, 96 N. E. 758, 39 L. R. A. (N. S.) 20; Ft. Wayne V. & L. Traction Co. v. Monroeville Home Telephone Co. (1912) 179 Ind. 334, 100 N. E. 69.

The sufficiency of the complaint was challenged by demurrer, and the action of the court in overruling such demurrer is assigned as error; but as the judgment must be reversed for other reasons, and as the complaint will probably be amended before another trial, the question so presented need not be

decided.

For error of the court in giving instructions Nos. 5, 7, and 10, the judgment in the trial court is reversed, with instructions to sustain appellant's motion for a new trial.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(99 Ohio St. 448)

GRAFF v. GRAFF. (No. 15847.) (Supreme Court of Ohio. Feb. 25, 1919.) Error to Court of Appeals, Licking County. Proceedings between one Graff, as executrix, and one Graff. Judgment for the latter in the Court of Appeals, and the executrix brings error. Reversed and rendered.

A. A. Stasel and Flory & Flory, all of Newark, for plaintiff in error.

Phil B. Smythe, Fitzgibbon, Montgomery & Black, and Kibler & Kibler, all of Newark, for defendant in error.

PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed upon authority of Lockwood et al. v. Krum, Adm'r, et al., 34 Ohio St. 1; and this court coming to render the judgment, upon the facts admitted, that the Court of Appeals should have rendered, it is hereby ordered and adjudged that the estate of George Graff be, and the same is hereby, released from the payment of alimony in the sum of $25 per month from and after the date of the death of George Graff, to wit, February 13,

1916.

Judgment reversed, and judgment for plaintiff in error.

JONES, MATTHIAS, JOHNSON, DONAHUE, and WANAMAKER, JJ., concur. NICHOLS, C. J., dissents.

ROBINSON, J., not participating.

(71 Ind. App. 473)

and unenforceable by the receiver of the rail-
road against the successor of the street railway
for want of privity; Burns' Ann. St. 1914, §§
5676, 5677, under the circumstances, fixing the
rights and duties of the parties in the premises.
3. STREET RAILROADS 41(4)-LIABILITY FOR

COST OF REPAIRS OF CROSSING OVER OTHER
RAILROAD.

Under Burns' Ann. St. 1914, §§ 5676, 5677, a street railway at crossings with whose track only for the repairs made on its own track, and a railroad made certain repairs could be liable for one-half of the cost of repairs to the crossing made as repairs to the street or highway.

Appeal from Circuit Court, Grant County; J. F. Charles, Judge.

Action by Walter L. Ross, receiver, against the Union Traction Company of Indiana. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

J. A. Van Osdol, of Anderson, for appellant. Geddes Van Brunt, of Frankfort, and Chas. A. Schmettau, of Toledo, Ohio, for appellee.

ENLOE, J. This was an action by appellee, as receiver of the Toledo, St. Louis & Western Railroad Company, to recover the cost of certain repairs made to certain street crossings, therein mentioned. The action was based upon three certain contracts, concerning the maintenance of the said crossings, which it was alleged had been repaired, which said contracts had been entered into by and between former owners of said roads, and to which ownership. the parties hereto were, severally, the successors.

One of said contracts related to the cross

UNION TRACTION CO. OF INDIANA v. ing of the tracks of said parties on Railroad

ROSS. (No. 10116.)

avenue, Marion; another to the crossing on South Washington street, Marion; and the

(Appellate Court of Indiana, Division No. 1. other to the crossings at Wabash street, and

Nov. 26, 1919.)

1. PLEADING 8(7) ASSUMPTION OF CONTRACT OF PREDECESSOR COMPANY INSUFFI

CIENT TO CHARGE PRIVITY.

In action by receiver of railroad against a traction company to recover cost of repairs at street crossings under contracts between predecessors of each party, allegation of complaint that defendant, since execution of the contract, by purchase and consolidation had acquired all the rights, franchises, and property of its predecessor company, and had assumed and was bound by all its contracts and obligations, etc., held a mere conclusion as to legal effect of transactions, and no sufficient averment of privity.

2. STREET RAILROADS 41(1) — CONSIDERATION FOR AND EFFECT OF CONTRACT WITH RAILROAD FOR MAINTENANCE OF CROSSING.

at Kentucky street, in the city of Kokomo. The complaint was in three paragraphs, each founded upon one of the above-mentioned contracts. In each of said contracts the street railroad company had agreed, in substance, that it would thereafter at all times keep and maintain, at its own expense, said crossings, and renewals thereof, to the approval of the party of the first part (the steam road). The contracts are very similar to those upon which the action was founded, in cases of Evansville, etc., Traction Co. v. Evansville Belt R. R. Co., 44 Ind. App. 155, 87 N. E. 21, Cincinnati, etc., Co. v. Baltimore, etc., Co., 52 Ind. App. 639, 99 N. E. 1018, and Vandalia R. Co. v. Ft. Wayne, etc., Co., 118 N. E. 839.

Two of the said contracts were made prior to the act of 1901 (sections 5676, 5677, Burns 1914), and one was made subsequent to the taking effect of said act.

Agreement by street railway with railroad to keep and maintain street crossings and renewals in repair to the approval of the railroad held without any sufficient consideration, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

To each of said paragraphs of complaint a demurrer was interposed, with memorandum

(125 N.E.)

as required by statute, which demurrer was by the court overruled, and appellant then answered said complaint in four paragraphs, to each of which, except the first, the same being a general denial, a demurrer was sustained.

There was a trial by the court, which, upon request, made a special finding of the facts and stated its conclusions of law thereon, favorable to appellee, to which appellant duly excepted, and judgment was rendered accordingly.

Appellant then moved the court to modify the judgment, and, this motion being overruled, it filed its motion for a new trial, which was also overruled, and it now prosecutes this appeal.

The errors relied upon for a reversal are: (1) Error in overruling demurrer to complaint.

(2) Error in conclusions of law.

tions before stated, and adds nothing to the pleading. Central Bank v. Martin, 121 N. E. 57; Mackey v. Lafayette Loan & T. Co., 121 N. E. 682. There was no sufficient averment of privity.

[2] The facts, as pleaded, also show that the contracts in question, sued on, were without any sufficient consideration, and therefore not enforceable, and, under the circumstances and conditions pleaded, the statute fixed their rights and duties. Baltimore, etc., R. Co. v. Cincinnati, etc., R. Co., 52 Ind. App. 639, 99 N. E. 1018; Vandalia R. C. v. Ft. Wayne, etc., Co., 118 N. E. 839.

[3] It is next urged that the court erred in its conclusions of law upon the facts found. The court found that the appellee had made repairs to the several crossings in question, in and to the amount of $58.18, and stated as its conclusion of law that appellee was entitled to recover this sum from the appellant,

(3) Error in overruling motion to modify and rendered judgment accordingly. The judgment.

statute before cited makes it the duty of each

(4) Error in overruling motion for a new railroad to keep in a safe condition and retrial.

The alleged deficiencies in the several paragraphs of complaint, as stated in the memorandum filed with said demurrer, were: (1) The facts stated show no privity of contract between the parties thereto; (2) the facts stated show there was no consideration to support the promise sued on; and (3) the obligations of the parties in the matter in question are fixed by statute.

[1] The language of the first paragraph of the complaint herein, whereby it was sought to charge appellant, as being in privity with said contract sued on, is as follows:

"Plaintiff says that the defendant herein has, since the execution of said contract, by purchase and consolidation, acquired all the rights, franchises, and property of said Marion Street Railroad Company, and thereby assumed and is now bound by all its contracts and obligations, including the contract aforesaid."

The same averment, as to privity, is found

pair its own track at crossings, and appellant, at most, could only be liable for the repairs made, on its own track, and for one-half of the cost of repairs to the crossing, made as repairs to the street or highway. The court erred in its conclusion of law.

Appellant also insists that the court erred in overruling its motion to modify the judgment; but, as the judgment must follow the conclusions of law, the court did not err in overruling said motion.

For the errors above indicated, this cause is reversed and remanded, with directions to the trial court to set aside the judgment rendered herein, and to sustain the demurrer to the complaint, and for further proceedings.

(72 Ind. App. 628)

SMITH V. YOST. (No. 10218.)*

in each of the other paragraphs of complaint. (Appellate Court of Indiana, Division No. 1.

In the case of Evansville, etc., Trac. Co. v. Evansville Belt R. Co., supra, it was said: "The appellant, however, was not a party to the contract, and the obligations of a contract are ordinarily limited to the parties by whom they are made, and those who stand in privity with them, either in estate or contract. * * And unless it is shown by the facts pleaded that the appellant is in privity of contract or privity of estate with the street railroad company, whose stipulation is sought to be enforced against it, or there is some equitable ground upon which appellant can be held bound to perform such stipulation, the appellce is not entitled to recover."

Nov. 20, 1919.)

1. TRADE-MARKS AND TRADE-NAMES 33NAME CANNOT BE SOLD APART FROM PROPERTY OR BUSINESS.

A trade-name, separated from the business to which it belongs, and in which it is used, is not a species of "property," and cannot be sold and transferred as such, but can only pass with some property or business with which it has become identified.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Property.]

2. CONTRACTS 137(1)-EFFECT OF PARTIAL

INVALIDITY.

The averment in each paragraph of the Where valid and invalid stipulations appear complaint, "and thereby assumed and is now in the same contract, and such stipulations are bound," etc., is a etc., is a mere conclusion of the susceptible of division or separation, the valid pleader, as to the legal effect of the transac-stipulations will be enforced.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

NEGATIVE COVENANTS NOT TO USE.

Contracts between S. and Y., both using the trade-name "Bankable" in connection with five-cent cigars, whereby Y. sold his trade-name to S. and agreed not to use such trade-name under his prior right in a given territory, can be enforced as to the negative covenants not to use the name; the invalid stipulation relative to the sale of the trade-mark apart from any property or business being separable.

4. ESTOPPEL 54-KNOWLEDGE AND WANT OF KNOWLEDGE AS BASIS OF ESTOPPEL.

To constitute a valid estoppel by conduct there must be knowledge on the part of the party to be estopped, and want of knowledge on the part of the party relying on an estoppel. 5. COMPROMISE AND SETTLEMENT

PLAINT STATING CAUSE OF ACTION.

Paragraphs of complaint of one cigar manufacturer against another, alleging the sale of the trade-name "Bankable" by defendant to plaintiff invalid because separate from transfer of any property or business, but also alleging enforceable negative covenants of defendant not to use the name in a certain territory, held to state a cause of action on theory of settlement of conflicting interests and determination of future rights to use of the name in certain counties in question.

Appeal from Circuit Court, Marshall County; Smith N. Stevens, Judge.

3. TRADE-MARKS AND TRADE-NAMES 34-1 substance, among other things, that for more INVALID SALE OF NAME WITH ENFORCEABLE than five years appellant has been engaged in manufacturing and selling cigars throughout the state of Indiana, except in the counties of Kosciusko, Fulton, Pulaski, Wabash, Miami, Huntington, Whitely, Noble, and Elkhart; that during such time he manufactured and sold at wholesale, to retail merchants and cigar dealers, a cigar which was sold at retail for the sum of five cents; that all of such cigars were so sold by him in boxes containing 100 or less, and on all of such boxes there was painted, lithographed, stamped, or labeled the name "Bankable" in connection with the name "N. N. Smith Company," which name was so placed on such boxes as a distinguishing mark and trade-name for the identification of such 22-COM-goods, so manufactured and sold by him; that during all of said time he had advertised said name in connection with his said business exclusively as a distinguishing mark or brand of the goods manufactured and sold by him; that by reason thereof his said cigars on October 26, 1914, and for a long time prior thereto, had become known to the general public throughout the state of Indiana, except within said nine counties, by said name, which served and still serves as a distinguishing mark or brand for his said goods of the character described; that during all of said time he had used said name in the manner aforesaid to the exclusion of all other persons within said territory, and thereby acquired, and had on said October 26, 1914, the right to manufacture merchandise of the character aforesaid, and to sell the same under said trade-name within said territory; that on said date he was manufacturing such cigars in the city of Frankfort, Ind., in a large plant then owned by him, and which he still owns; that by reason of the facts alleged he had acquired a good will for the cigars, so manufactured and sold by him under said trade-name and at BATMAN, C. J. Appellant instituted said price, which was on said date, and still this action against appellee on December 8, is of great value to him; that for several 1915, to enjoin the latter from using the years prior to said October 26, 1914, appelword "Bankable," as a trade-name, or as a lee had manufactured cigars in the city of part of a trade-name for cigars, and to re- Warsaw, Ind., and had sold the same excover damages for a prior use thereof by clusively within the confines of said nine appellee. Appellant's complaint consists of counties named above; that such sales had six paragraphs, but the fourth paragraph been made in boxes, on which there was was withdrawn. Appellee filed demurrers printed, stamped, lithographed, or otherwise to each of the other paragraphs for want of placed, the name "Yost's Bankable," for the facts, all of which were sustained. Appel- purpose of distinguishing and identifying the lant refused to plead further, and judgment. same as goods manufactured and sold by was thereupon rendered against him for him; that said cigars were so manufactured costs. He is now prosecuting this appeal, and sold by appellee within said territory and has assigned the action of the court in at wholesale to retail merchants and cigar sustaining appellee's demurrers to the sev- dealers, to be sold at retail at five cents each; eral paragraphs of his complaint as the that appellee had used said trade-name exsole errors on which he relies for reversal. clusively within said nine counties for sevThe first paragraph of complaint alleges, ineral years prior to said date, for the purpose

Action by Noah N. Smith, trading under the name of N. N. Smith Company, against William B. Yost. From judgment for defendant, plaintiff appeals. Reversed, with instructions to overrule demurrer to the complaint.

James V. Kent and Thomas M. Ryan, both of Frankfort, and Harley A. Logan, of Plymouth, for appellant.

Walter Brubaker and L. W. Royse, both of Warsaw, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

of identifying his goods, and had thus ac-[injury and damage to appellant and his said quired the right to manufacture and sell business; that by reason of the premises he goods of such character at said price within has been damaged in the sum of $500. said nine counties; that the name "Bank-Prayer for an injunction and for damages. able," as used by both appellant and appellee A copy of the alleged agreement was filed as aforesaid, was and is purely fanciful, and with said paragraph of complaint as an exin no way indicates the place where, or hibit. Said agreement contains, among othperson by whom, said cigars are or were man- ers, the following provisions: ufactured; that the use of said name by "That said first party has this day sold and appellant does not denote any special quali- does hereby sell, assign, transfer and set over ty or character of the cigars manufactured to said second party all his rights in and to and sold by him, and that said name was the trade-name 'Bankable,' and the use thereof used at all times by appellee in connection as a trade-name for cigars, cheroots and stogwith his own name Yost; that on October ies, and hereby agrees that after the date of 26, 1914, appellee and appellant entered into this contract he will not use the said name an agreement in writing, whereby the former Bankable' as a trade-name or trade-mark in assigned to the latter, in consideration of the sale or manufacture of goods of the char$400 in hand paid, all his legal rights in and acter aforesaid or will he use said name in combination with any other words, figures. to the trade-name "Bankable," and the use signs, or symbols as a part of a trade-name. thereof as a trade-name for cigars, except trade-mark or device for the designation of that appellee reserved the right to use said any brand of goods of the character aforesaid, name upon cigars, etc., manufactured and and said first party further agrees on his part sold by him for one year thereafter, to cus- not to use the said name 'Bankable' as a tradetomers to whom he had theretofore sold the name nor with other words, figures, signs or same; that appellant had in all things com- symbols as a part of a trade-name for the plied with the terms of said contract on his designation of goods of the character aforesaid, as the agent of any other person, nor as a part to be performed; that thereafter ap-member of any copartnership, nor as the officer pellant, in pursuance of and relying upon or agent of any corporation, nor will he bethe terms of said agreement, advertised come a stockholder in a corporation so using said name "Bankable" extensively within or attempting to use such name in such mansaid nine counties, in connection with his ner. *** Said first party, however, reown name, N. N. Smith Company, as a desig- serves the right to use the said name 'Banknation and trade-name for cigars manufac- able' upon cigars, cheroots and stogies, manutured and sold by him at wholesale to retail-factured and sold by him for one year after ers, to be retailed to the general public for the sum of five cents each, and in so doing expended more than $500; that his said cigars were thereby placed in the hands of dealers, who sold the same to the general public since said date under the name "BankThe second paragraph of the complaint able"; that said name has thus become, and is the same as the first paragraph, except is now known to the general public of said that it relies on the negative covenants of nine counties as, the designation and name that part of the contract quoted above. The of cigars manufactured and sold by appel- third paragraph of complaint includes the lant; that he has thereby acquired the good substance of both the first and second parawill of the public, and a market for his ci- graphs, and in addition thereto alleges facts gars within said territory under said trade with reference to the expenditure of money that appellee has wholly failed to for advertising, which he contends creates comply with the terms of said agreement. an estoppel against appellee. The fifth paraand since October 26, 1915, has been, and is graph of complaint includes the substance of still, using said name "Yost's Bankable" as the first and second paragraphs, but alleges a trade-name or brand for the purpose of in addition that the agreement in question identifying cigars manufactured and sold was made between the parties thereto for by him at wholesale to be retailed at the sum of five cents each, by printing, stamping. lithographing, or otherwise attaching said name thereto, and is threatening to, and will, continue so to do, unless restrained therefrom; that the act of appellee in so doing will injure the business of appellant in the manufacture and sale of goods of like character and price, under said trade-name "Bankable," as used in connection with his name as aforesaid; that the continuance of the use of said trade-name, as threatened by appellee, will result in great and irreparable

this date to customers to whom he has heretofore sold such cigars, cheroots and stogies, but said first party shall acquire nor seek to acquire any new customers for such merchandise."

the purpose of deterinining and fixing their rights in the use of said trade-name. The sixth paragraph of complaint contains substantially the same facts as the preceding paragraphs, and in addition thereto certain facts as to conflicting rights and interests growing out of the use of the word "Bankable" by both parties, and alleges that the agreement in question was entered into for the purpose of avoiding such conflict and the confusion arising therefrom.

[1] It will be observed that the first paragraph of complaint proceeds upon the the

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