The complainant made and sold "Morse's Compound Syrup of Yellow Dock Root," in bottles in paper wrappers. The defendant subsequently set up the sale in bottles, without wrappers, of Dr. Morse's Celebrated Syrup," those words being blown in the glass, with labels inscribed "Dr. Morse's Improved Yellow Dock and Sarsaparilla Compound. The bottles were exactly similar in size and shape but the labels were different. The complainant made his preparation under one trade name and sold it under another, and advertised it as "sold only in quart bottles," whereas the bottles, although known in the trade as quart bottles, held substantially less. Held, that complainant was entitled to an injunction and account of profits:* ILL for injunction and account. The opinion states the case. BILL Charles A. Wilson & Thomas A. Jenckes, for complainants. Nicholas Van Slyck & George B. Barrows, for respondents. CARPENTER, J. The bill alleges that the complainants are engaged in the manufacture of a liquid medicinal preparation known to the public as Morse's Syrup of Yellow Dock Root, and have expended large sums of money in manufacturing and advertising the same; that the respondents are engaged in the manufacture of the same liquid preparation, and for the purpose of inducing the public to believe that the compound sold by them was manufactured by the complainants, have 'sold the same in bottles and packages similar to those used by the complainants, and such as to deceive purchasers in that regard; and prays that the respondents be enjoined "from directly or indirectly manufacturing, selling, or offering for sale any compound syrup of yellow dock under the denomination. of Dr. Morse's Yellow Dock, Morse's Yellow Dock, Dr. Morse's Celebrated Syrup, or Dr. Morse's Improved Yellow Dock and Sarsaparilla Compound, printed, painted, written, stamped, attached or pasted on bottles or packages, or upon any label for wrapper for bottles or packages resembling or in imitation of the bottles or packages or trade-mark of your orators," and for an account. * See Hennessy v. Wheeler (69 N. Y. 271), 25 Am. Rep. 188. Alexander v. Morse. There are other allegations in the bill showing under what circumstances the complainants commenced the manufacture, and an allegation as we understand it, that in consequence of these circumstances the complainants have acquired the exclusive right to manufacture and sell the preparation in question. Comparing this allegation with the prayer as above recited, it is not perhaps entirely clear what relief the complainants demand; and both parties in the argument have carried the discussion much farther than the case, as it seems to us requires. We regard the bill as charging in substance that the respondents sell their product in packages of such form and with such marks as are intended and well calculated to deceive the purchaser into the belief that he is buying the product of the complainants. In considering the proofs we do not take into account the package and labels which were the subject of complaint in the motion for attachment for a contempt which was lately heard by the court, since that package and label were not used by the respondents before the filing of the bill. We find however that respondents have used, although perhaps only to a small extent, bottles precisely similar in size and form to those used by the complainants, and having formed in the substance of the glass on the back of the bottle the words "Dr. Morse's Celebrated Syrup" in precisely the same form as used by the complainants. It is true that these bottles are not inclosed in a wrapper while those of the complainants are inclosed in paper wrappers having an inscription thereon; and it is also true that the labels pasted on the two bottles are different both in the words used and in general appearance, and perhaps may be said to be alike only in so far as both contain the name of the preparation contained in them. The proof shows that the form of the bottle is not peculiar to the complainants, but that the same form is in use for other purposes. It does not however appear that it is in use by others than the parties for the sale of "Yellow Dock Compound," or that any other persons use bottles having the words "Dr. Morse's Celebrated Syrup" on the back. The respondents also contend that there is a difference in the name of the compound as used on their labels which in itself imports an article different from that sold by the complainants, and thus precludes any misunderstanding on the part of the purchaser. The name used by the complainants is "Dr. Morse's Compound Syrup of Yellow Dock Root." while that used by respondents is " Dr. Morse's Improved Yellow Dock and Sarsaparilla Compound." We do not think the difference is sufficient to be of Alexander v. Morse. any avail; and the suggestion again does not excuse the use of the name on the back of the bottle. It is to be particularly noted also that the label containing the significant words "Morse" and "Yellow Dock," contains no name of the maker or seller, by which the purchaser might be warned that the article offered him was not the same article largely manufactured and widely advertised by the complainants. We think on the whole that the respondents have infringed the rights of the complainants by using the bottle having the same form as those used by complainants, and having the same words formed in the substance of the glass. There is a further defense to which we will advert, namely that the complainants are disentitled to relief by reason of their own misrepresentations concerning their medicine on their labels, wrappers and advertisements. The complainants' label contains the words "Prepared by the Morse Yellow Dock Root Syrup Company, Providence, R. I", and also the words "Alexander Bros.," Providence, R. I"., Sole Agents." It appears that the complainants both manufacture and sell the preparation, and that the two names above quoted are two firm names adopted by the complainants for different parts of their business. As the "Morse Yellow Dock Root Syrup Company" they manufacture the preparation in question and as "Alexander Brothers" they sell the same, and also sell other articles in the course of their trade as wholesale grocers. The respondents claim that the use of the two names on the package imports the false statement that some persons other than themselves are the manufacturers, and that they are mere agents for sale. We do not think this is the import of the label. The name "Alexander Bros." would be understood to indicate a copartnership, and the words "Morse Yellow Dock Root Syrup Company" would be understood to indicate either a copartnership or a corporation; but we do not think they would be thought by the public to indicate any thing as to the members of the copartnership, or as to the stockholders of the corporation, if it were such. Judging by common knowledge and common practice it would be entirely consistent with the use of the name "Alexander Bros." to suppose that it was the name of a firm composed of several persons named Alexander, or of several persons some of whom were named Alexander, or even that it was the trade name used by one person whose name was not Alexander. There are cases also in this State, and very probably elsewhere, where several persons under a firm name hold themselves out as agents for the Lyon v. Briggs. sale of goods manufactured by a corporation in which they are the sole stockholders. We do not think such practice works any deception on the public. It also appeared in proof that in some advertisements put forth by the complainants appeared the words, "sold only in quart bottles." and that the bottles used by the complainants hold substantially less than a quart of liquid. It appeared however that these words appeared only in a small number of circulars, that they were adopted with no intent to deceive, and for the sole purpose of distinguishing the medicine sold by the complainants from a widely different medicine sold by a certain person, not a party to this suit, of the name of Morse, and that the words "quart bottle" are in common use in the druggist's trade to designate bottles of the size here used. Whether under this state of facts the statement was likely to deceive is perhaps doubtful; but we do not think it was made in such manner and with such intent as that it ought to debar the complainants from the relief to which they are otherwise entitled. We think there must be a decree for an injunction, and an account of such profits as the respondents have made by the use of bottles similar in form to those used by the complainants. An action will not lie against for one obtaining credit by fraudulently representing that he is a person safely to be trusted and given credit to." ASE. The opinion states the facts. The defendant had judgment below. CASE Edward D. Bassett, for plaintiff. James W. Urquhart, for defendant. DURFEE, C. J. The question raised by the demurrer is, whether an action on the case for deceit will lie against a person for obtaining credit by falsely and fraudulently representing himself to be "a person safely to be trusted and given credit to." The question is son. Lyon v. Briggs. the same as that which was raised in Pasley v. Freeman, 3 T. R., 51, except that here the defendant is alleged to have made the representation in regard to himself, whereas in Pasley v. Freeman the defendant was alleged to have made it in regard to another perIn Pasley v. Freeman it was decided that the action would lie. Is the case at bar distinguishable from Pasley v. Freeman in point of law by reason of the difference noted in matter of fact? It is settled now that an action for deceit will lie against a person for obtaining credit by making false and fraudulent representations in regard to his solvency or pecuniary responsibility, if the representations consist of definite statements of fact as contradistinguished from mere estimates or expressions of opinion. The representation here alleged was expressed in extremely vague and general terms. It is true the same may be said of the representation in Pasley v. Freeman, the two representations being identical, except in their application. The question therefore again recurs, is this difference material? The question is a very close one, but nevertheless we cannot help thinking that there is a material difference between the case of a party who represents that another can safely be trusted and given credit to, and the case of a party who makes the same representation about himself. In the first case, the party making the representation, whether he volunteers it or makes it on inquiry, is listened to without suspicion and with a ready belief, because having no interest in the transaction, he is supposed not to have any motive to say any thing but the truth, and because being a third person, he would naturally not be expected to be so explicit as the party himself who desires the credit. A prudent man would not rest satisfied with only a representation from the party himself, but would insist on a specification of facts, and it is pretty well settled that a representation is not actionable unless it is such a one as is calculated to deceive a man of ordinary prudence. Kerr Fraud, 82-84. When a man asks for credit, saying that he can safely be trusted and given credit to, he does but little more than represent expressly what he represents by implication if he says nothing about his trustworthiness. A moment's reflection will make this more manifest. A. asks B. to sell him a hundred dollars' worth of goods on credit. B., before selling, asks, "But can I safely trust you and give credit to you?" A. answers, "Oh, yes, certainly you can." B. thereupon sells him the goods. Now it is contended that if the answer was false, A. is liable to B. |