Ross and another vs. Heathcock and others. evidence, that the defendants and Poad, in consideration of $6,000 in money or its equivalent, sold to the company the exclusive right to work that range to the full extent that the vendors had the right to pursue and work it at the time of sale. We have carefully examined the testimony for the proof which will support this finding. Of course, the existence of such a contract of sale must be shown by competent and sufficient testimony. It cannot be inferred from mere vague, doubtful and ambiguous declarations or circumstances which do not amount to positive proof of an express contract. There is certainly testimony in the case which shows that the defendants and Poad were paid $6,000 for something, mostly in stock of the company. But what this money and stock were paid for does not clearly appear. There is evidence that it was given as a bonus for the Bracken and Vivian lease. That lease refers to a certain bond bearing even date therewith, the condition of which the obligors bound themselves to keep and perform. The bond is lost. No one is able to state what its real condition was - whether it was for the payment of money, or for doing other things. There is likewise evidence of admissions made by the defendants to the effect that the company had the right to follow their mineral or range on any land owned by them. We shall not attempt to discuss the oral testimony which is relied on for the purpose of proving that the defendants, for a valuable consideration, sold by a verbal agreement-independent of the written contracts the right to work the Heathcock range wheresoëver the same might run on any land owned by them. It seems to us that all the evidence bearing upon that point is entirely inadequate and insufficient to justify the inference that such a verbal agreement was made. We have already referred to the strong presumption arising from the written contracts against the existence of such a verbal agreement. It appears that the parties deliberately put their other engagements and contracts. in writing. It is difficult to believe that they would allow so Ross and another vs. Heathcock and others. important an agreement respecting a mining right sold and purchased to rest in parol. Besides, no witness could testify that the parties ever actually entered into such an agreement, or could state its conditions and when it was made. The loose and inconsiderate admissions proven, and the probabilities arising from the conduct of the parties, which are relied upon to establish the contract, we deem insufficient to prove its existence. It is true, the jury, to whom the question was submitted, distinctly found a sale of the right to work the Heathcock range, as claimed, and the court affirmed the correctness of the verdict in that particular, as we have said. And the learned and able counsel for the plaintiffs, on this branch of the case, invoked the aid of the well-settled rule that this court will not disturb a verdict of the jury or the finding of a court on a question of fact, except where the preponderance of evidence is most clearly against it. We do not intend to come in conflict with that rule. This is an equity case, and this court must review the evidence and determine what facts it establishes. But were the case one at law, we should feel constrained to say that there was no sufficient evidence of such a contract to warrant the verdict of the jury. The circumstances, admissions, and all matters relied on to prove the sale and purchase of such a valuable mining right, in our opinion, fall far short of the degree or quantity of evidence essential to warrant an inference that it was made. The court also submitted this question to the jury, to wit: "If the owner of a discovery right, or right to work a mine or range of mineral, sells his working right for a valuable consideration to the entire range, as far as the seller has the right to pursue and work the mine, agreeably to the custom of miners in this section of the country in force at the time of sale, say in 1853 or 1854, can the seller, under any pretext, set up a valid claim to work any portion of the range by him sold, against the will of the purchaser or his assigns, their working right acquired by the purchase not having been forfeited?" Ross and another vs. Heathcock and others. The jury answered this question in the negative. There was considerable testimony taken in regard to the custom and usages of miners, but we think neither such testimony nor the above question was pertinent to the case. We have said that in our judgment there was no evidence which would justify a jury in finding that the defendants, for a valuable consideration, sold the working right to the entire Heathcock range, wheresoever it might run on lands owned by them. What was sold was the right to and interest in all the ores and minerals on certain specified tracts of lands, together with the right of digging and working on such lands for mining purposes. The Heathcock range, as far as the defendants had the right to work it, was not the thing sold and purchased. The right to work that range on the specified tracts was sold, but not the right to follow it upon land not embraced in the contract. Consequently, we deem the question inapplicable to the case on trial. We decide nothing as to the effect of an established mining custom on such a hypothetical case as that stated in the question. Without further remarks, we will say, the conclusion which we have reached is, that that portion of the judgment appealed from by the defendants must be reversed, and the cause be remanded with directions to dismiss the complaint. This view necessarily disposes of the appeal of the plaintiffs, since the very foundation of that portion of the judg ment which they appeal from, is gone or destroyed; for really the vital parts of the judgment are reversed on the defendants appeal. And because there is nothing left for the plaintiffs' appeal to operate on, it must be dismissed. By the Court. It is so ordered. Marshall and another vs. Pinkham. MARSHALL and another vs. PINKHAM. May 16-June 22, 1881. (1-6) Infringement of trade-mark. (7) Injunctions in such cases. (8) Acquisition of title to personalty under will. 1. Words in common use, merely descriptive of the character, composition or quality of the article to which they are applied, cannot be exclusively appropriated and protected as a trade-mark. 2. The office of a trade-mark is to point out the true origin or ownership of the goods to which it is applied, or to designate the dealer's place of business. 3. The ground upon which actions for the infringement of a trade-mark are maintained is, that the law will not allow one person to sell his own goods as and for the goods of another. 4. The fact that an article, prepared according to a certain recipe, but not protected by a patent, has for some time been made and sold only by a certain manufacturer, does not render it unlawful for any other person, acquainted with its composition, from manufacturing and selling the same. 5. The proper name of the manufacturer of an article cannot be made a trade-mark so as to prevent any other manufacturer of the same name from affixing such name to a similar article made and sold by him, where no unfair means are used to mislead purchasers into a belief that such article is manufactured by the person who first sold and continues to sell a like article under that name. 6. M., having a recipe (not discovered or invented by himself, or protected by a patent) for a liniment used for the cure of rheumatism and other diseases, communicated it to the various members of his numerous family, and permitted each of them, for his or her own benefit to manufacture the article, and sell it with a certain label attached (furnished by M.) containing the words "Old Dr. M.'s Celebrated Liniment," and certain other words descriptive of the liniment, and a certain vignette, and with the address of the particular member of the family manufacturing the article at the bottom of such label. Each member of the family engaged in such manufacture appears to have had, by their mutual agreement, some particular route or routes to which his sales were confined. After M.'s death, his widow continued for some years to manufacture the liniment, and to sell it (with said label attached) on the routes last occupied by M.; and she then sold the material and paraphernalia of her business to the plaintiff, one of the sons of M. Held, that plaintiff has no exclusive right as against the other children of M., or Marshall and another vs. Pinkham. their assigns (nor even as against the public generally), to manufacture said liniment or to the use of said label or the name "M." as descriptive of the article sold. 7. An injunction restraining the use of a trade-mark will not be granted upon the pleadings in a doubtful case; but the court will wait until the proofs are heard. 8. Where there is a will, but no executor named therein, and no administration had, no title to personal property of the testator can be acquired under the will. APPEAL from the Circuit Court for Fond du Lac County. This was an action by Charles H. Marshall and Mary W., his wife, to restrain the defendant and his servants and agents from preparing, putting up or offering for sale a certain alleged imitation of "Marshall's Rheumatic Liniment," or any compound bearing the name of Marshall's Liniment or any imitation of said name, or bearing certain labels described in the complaint, or any imitation of plaintiffs' label or trade-mark; and also to have defendant adjudged to account to plaintiffs for all profits realized by him upon previous sales of said compound sold by him with any imitation of plaintiffs' labels or trade-mark, etc. The case is thus stated by Mr. Justice CASSODAY: "It is very difficult, if not impossible, to gather from the printed case, or bill of exceptions, or briefs of counsel, an accurate history of the several labels in question. It would seem, however, that about 1857 Samuel Marshall and his wife, Mary J. Marshall, the parents of the plaintiff Charles H., resided at Fond du Lac with seven children, and in rather straitened circumstances. Three of the children were boys John W., Samuel A., and Charles H.; and four were daughters, all of whom were subsequently married. One, Sarah G., became Mrs. Warren, then Mrs. Benson; another, Mrs. Harris; another, Mrs. Haidee A. Robinson; and another, Mrs. Julia F. Smith. Mrs. Smith testified that she was the youngest of the family, and thirty-five years of age, and lived with her father until 1868, when she was married; from which we may |