say from an inspection of the record that the reading of it by the jurors had no effect upon the character of the verdict rendered. We cannot say that the verdict of guilty is based wholly upon the evidence introduced at the trial. The article goes to still greater lengths, and intimates that attempts are being made to corrupt the jury. It appears that the term "Colonel Mazuma" not only does not indicate some gentleman with a military title, but it does not even refer to a person at all. We fail to find the term mentioned by our lexicographers, but understand it to be a modern provincialism, probably emanating from the daily press, and used when referring to the corrupt application of money in the accomplishment of certain ends. If these jurors understood this term with the signification thus attached to it, it of itself furnished ample material to demand a retrial of the case. We see no other error in the record. As was said in People v. Mitchell, 34 Pac. 698: "It is unfortunate for the jury system, and for the cause of justice, that such episodes should occur in the trial of causes; but the evil will be soonest suppressed by wiping out verdicts rendered under such circumstances." It is ordered that the judgment and order be reversed, and the cause remanded for a new trial.

We concur: FITZGERALD, J.; HARRISON, J.; McFARLAND, J.; VAN FLEET, J.

(103 Cal. 71)

CASTLE et al. v. SIEGFRIED et al. (No. 15,092.)

(Supreme Court of California. June 13, 1894.)

TRADE-MARK-INFRINGEMENT.

The labels on packages of tea imported by plaintiffs stated that their firm was the importer, and this was followed by an X-mark with the firm's initials in the angles, and a statement of the kind of tea, and that it was imported from Japan, where the packages were put up. Defendants' tea was put up in the same size packages, and the labels were identical, except that the name of the importing firm and the initials in the X-mark were different. It appeared that this kind of a label had been used by tea importers for 20 years, and it did not appear that plaintiffs invented it. The quality of defendants' tea was the superior, and it appeared that persons purchasing tea were influenced merely by the initials in the X-mark. Held, that there was no infringement of plaintiffs' trade-mark.

Department 1. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Action by Michael Castle and others, partners under the firm name of Macondray & Co., against John C. Siegfried and Max Brandenstein, partners under the firm name of Siegfried & Brandenstein. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal. Affirmed.

Galpin & Zeigler, for appellants. Mastick, Belcher & Mastick, for respondents.

HARRISON, J. Action for the infringement of a trade-mark. The plaintiffs, a mer cantile house in San Francisco, under the name of Macondray & Co., have been for many years engaged in importing teas from Japan, which are put up for them in that country in pound and half-pound packages, on each of which is affixed a label, the lines of which are printed in different colors, designating them as the importers, and containing also a characteristic mark or brand, as follows:

The

-the whole surrounded with a gold border. The defendants are also importers of teas into San Francisco from Japan, and have for many years imported teas put up in pound and half-pound packages, marked with labels containing an X-shaped character similar to that used by the plaintiffs, but with different initial letters in the angles thereof. plaintiffs brought this action, alleging that the acts of the defendants are an infringement of their right to a trade-mark, and praying that they be enjoined from its further use. The court below held that the marks used by the defendants do not infringe upon any trade-mark of the plaintiffs, and are not a colorable or any imitation of any trade-mark of the plaintiffs, and rendered judgment in favor of the defendants, dismissing the complaint. The plaintiffs moved for a new trial, upon the ground that the decision of the court was not sustained by the evidence. This motion was denied, and the plaintiffs have appealed.

A trade-mark may be appropriated by any one dealing in an article of commerce, "to designate the origin and ownership thereof;" but such dealer cannot exclusively appropriate any designation or part of a designation which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced or the business is carried on. Civ. Code, § 991. There is a marked distinction between the appropriation by an individual of some mark or symbol, coined or invented by him, to designate an article or proprietary compound which he manufactures, and his appropriation of a mark to designate an article of commerce dealt in by him in common with others. There can be no exclusive right to put up or sell tea in packages of any particular form or size, or to designate the packages by any particular arrangement of words, which indicate no more than the name or amount or quality of the tea, or the place where it is produced or sold. The plaintiffs did not give any evidence in the court below tending to show that they had invented or devised the trade-mark called by the witness the "sawbuck" or "cross-bar" mark or brand, but merely that they had made use of it,

with their initials in the angles, for many years; nor did they show that they were the first who had made use of this brand as a distinguishing mark for their goods; and there was evidence before the court that this mark had been used by dealers in tea long anterior to the time when the plaintiffs claim to have first made use of it, and that it had been used in San Francisco as a brand or mark upon packages of tea for upwards of 20 years by other persons who were dealing in tea in San Francisco and on the Pacific slope. The court finds that the only parts of the labels which were invented or designed or solely used by the firm of Macondray & Co. are the combination of the Xshaped character with the letters "M. M. & Co.," and the name "Macondray & Co." This is, indeed, all of the label that could be appropriated by the plaintiffs as a trade-mark, and is what is claimed by them in the complaint to be their trade-mark, and to which the evidence at the trial was directed. It was also shown that the packages in which both the plaintiffs and the defendants, as well as other importers, are accustomed to have the tea imported, are of the shape and size in which it is usually put up and sold; that the paper in which it is wrapped is manufactured in Japan, and that the labels thereon are printed there; that these labels are in the usual form of type used upon tea labels, and are printed in alternating colors, such as are commonly used in that country, and are surrounded with a gold border; that the only distinguishing mark of the several importers is their own name printed upon the label, or their initials in the angles of the X. It was also shown, and the court found, that the defendants had sold to dealers tea put up in packages marked with labels containing the names of such dealers, instead of the names of the plaintiffs, and having their initials in the angles of the X, instead of the initials "M. M. & Co.," and having also the same descriptive name of the tea; that the size and shape of the packages and the labels thereon were similar to those on the packages of tea sold by the plaintiffs, and were of the form and character in common and general use in the tea trade, and used by most importers and dealers in tea; that all of these teas were so packed and marked at the direction of the dealers to whom they were sold, and the initial letters placed in the angles of the X were in each case the initials of the name or firm name of such dealer. The teas thus put up and sold by the defendants were of a quality equal, if not superior, to those put up and sold by the plaintiffs; and the court finds that the defendants acted in good faith, and were free from any fraudulent intent, in their dealings in the teas. It was also shown that persons wishing to buy tea were governed by the initials within the X, or by the name of the in porter stamped upon the packages, and that the different colored letters on the labels

had no significance with those purchasing teas; and the court found that no person had been, or was likely to be, deceived by any resemblance between the packages of tea sold by the defendants and those sold by the plaintiffs. We are of the opinion that the evidence fully sustains the findings of the court, and that its judgment is correct. The judgment and order appealed from are affirmed.

We concur: GAROUTTE, J.; McFARLAND, J.

(103 Cal. 125) RUGGLES v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO et al. (No. 15,682.) (Supreme Court of California. June 15, 1894.) CONTEMPT-WHAT CONSTITUTES - EFFECT OF AP

PEAL.

Where the superior court makes an order for family allowance from which an appeal is taken, an administrator is not guilty of contempt for not paying said allowance pending an appeal. Beatty, C. J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge.

Petition by James Ruggles for a writ of prohibition against the superior court of the city and county of San Francisco, and J. V. Coffey, judge thereof. Writ allowed.

M. T. Moses and Chas. A. Sumner, for petitioner. Garret W. McEnerney and Stanley, Hayes & Bradley, for respondents.

VAN FLEET, J. Application for prohibition. Petitioner is the administrator of the estate of one Henry Welch, deceased, in course of administration in the department of said respondent superior court presided over by said Hon. J. V. Coffey, judge thereof. On February 16, 1894, an order was made and entered in said estate directing petitioner, as such administrator, to pay to the widow of said deceased $7,375, as accrued and unpaid family allowance. From this order the administrator on February 20, 1894, perfected an appeal to this court. Thereafter the widow moved this court to dismiss said appeal, which motion was subsequently, on the 5th day of March, denied, and the appeal is still pending and unde termined. Subsequent to the denial of said motion, the respondent judge, on the 7th day of March, at the instance of the widow, caused a citation to be issued and served upon petitioner, requiring said petitioner to show cause before the respondent superior court, on the 8th day of March, 1894, why he should not be punished for contempt in failing and refusing to obey the order of February 16th requiring him to pay said family allowance. On the last-mentioned date petitioner, in obedience to the citation, appeared before said court, and in response thereto brought properly to the attention of the court

the said appeal and the order of this court denying the motion to dismiss the same, and then objected that neither the superior court nor the judge thereof had any power or jurisdiction to proceed with or hear said matter of contempt, or to enforce said order for the payment of family allowance, by reason of the pendency of the appeal. But notwith standing the showing so made by petitioner, and disregarding his objections, said superior court and the judge thereof, respondents, threatened to proceed in said matter, and to punish petitioner for his refusal to obey said order; whereupon this application for prohibition was made.

The sole question arising is as to whether the superior court is acting in excess of its jurisdiction in the premises. Under the facts stated, we are constrained to hold that it is. The appeal from the order in question operated as a supersedeas, and stayed all further proceedings in the court below in the particular matter involved in the order appealed from. By the appeal the order or decree is set at large, and the subject-matter removed from the jurisdiction of the lower court until the appeal has been determined and the matter remitted back from the appellate court. In the case of Pennie v. Superior Court, 89 Cal. 31, 26 Pac. 617, the lower court made an order for family allowance, from which an appeal was taken. Pending the appeal, the lower court made an order directing the administrator to pay the money allowed by the previous order. The latter order was annulled by this court on certiorari, upon the ground that the appeal had removed the subject-matter of the order from the jurisdiction of the superior court, and it had not authority to further proceed with its enforcement pending the appeal. And in the recent case of Ex parte Orford (opinion filed in department 2 of this court, June 8, 1894), 36 Pac. 928, the same question arose. An administratrix of an estate in probate had been ordered to pay a certain claim against the estate; she appealed from the order, but, notwithstanding her appeal, the lower court proceeded against her as for a contempt in refusing obedience to its order, and punished her by imprisonment until she should comply with the order. This court discharged her on habeas corpus, holding that "the petitioner, having appealed and stayed all proceedings upon the order which she is charged with violating, cannot, pending her appeal, be punished for a failure to obey it." It is urged here by the respondents, however, as it was on the motion to dismiss the appeal, that the appeal attempted to be taken by petitioner herein is ineffectual to stay the hand of the lower court, because no appeal lies from an order such as the one under consideration. But that question does not arise in this proceeding. An appeal from the order has been taken to this court, and this court has refused to dismiss it; this determination is as

effectual for the purposes of this case as if determined for all purposes. Its effect is that this court is thus far entertaining the appeal, and while it does so the respondents are not at liberty to proceed in the matter. Whether the order in question shall be ultimately held appealable is a question that will properly arise in the matter in which the appeal is pending, but, for the reason stated, it is not involved here.

The proceedings complained of being in excess of the jurisdiction of respondents, a peremptory writ should issue as prayed. It is so ordered.

We concur: BEATTY, C. J.; DE HAVEN, J.; GAROUTTE, J.; HARRISON, J.; McFARLAND, J.; FITZGERALD, J.

On Rehearing.

(July 17, 1894.)

PER CURIAM. Rehearing denied.

BEATTY, C. J. I dissent from the order denying a rehearing of this cause, and, having concurred at the time in the decision heretofore pronounced by the court, I desire to state the grounds of my present conviction that said judgment was erroneous. When the superior court has made an order or judgment from which there is no appeal, and which is therefore a final adjudication of the rights of the litigants, the prevailing party is entitled to demand the enforcement of such order or judgment; and it is not only the right but the duty of the superior court to accord the proper relief by the appropriate process. That court is not relieved of such duty by the fact that the defeated party has attempted to appeal to this court, and thereby to stay the proceedings. When asked to enforce its order, and the fact is brought to its knowledge that an appeal has been taken or attempted, a question is then presented as to its jurisdiction to proceed, dependent for its solution upon the further question whether the order is final and unappealable or not; and this question it must decide. If it should erroneously decide that the order is not appealable when it is appealable, then alone has this court the power to interpose by prohibition and arrest its process. No one denies the truth of this proposition, as applied to a case where there has been no motion made in this court to dismiss the appeal upon the ground that the order is nonappealable; but because in this case the prevailing party in the superior court raised the question here by a motion to dismiss, which was disposed of without any decision of the question involved, a distinction is made, and it is held that the superior court is exceeding its jurisdiction in enforcing the order in question, whether it is final and nonappealable, or not; in other words, that it is exceeding its jurisdiction in enforcing an

order which it holds to be final, and which we have never held, do not now hold, and may never hold to be appealable. For it should be understood-a fact which does not clearly appear from the opinion of the court -that the order overruling the motion to dismiss the appeal was made expressly without prejudice, which, whatever else it may or may not mean, certainly does mean that the question involved in the motion was left open and undecided. That is to say, the motion was disposed of, and taken as completely out of the case, for all purposes, as if it had never been made, but the question whether the -order of the superior court is final or appeal able was left at large; neither party was es topped; nothing was foreclosed. Such being the case, the party claiming the benefit of the order, having been turned out of this court without a decision of a question which undoubtedly he could have presented in the first place to the superior court, returned to that tribunal and demanded the enforcement of its order, a right to which he is clearly entitled if it is final. I can see nothing in the proceedings here which relieved the superior -court of the duty of hearing and determining the question so presented. The fact that we were "entertaining the appeal" is no answer to this proposition. It might just as truly, and with as much meaning, have been said that we were "entertaining the appeal" if no motion to dismiss it had ever been made. We are always entertaining appeals in cases in which no motion to dismiss has been made, and in which there is a question whether the order or judgment of the lower court is appealable or not. In all such cases, the question of our jurisdiction is pending and undetermined in the same sense and to the same -extent that it is pending and undetermined in this case. But no one would contend for a moment that in such a case we could properly prohibit the enforcement of the order ap pealed from without determining that it was appealable, for unless we did hold it appealable we could not say that the lower court was exceeding its jurisdiction. If a proposition so plain needed authority to support it, such authority is found in the case of Tyler V. Connolly, 65 Cal. 28, 2 Pac. 414.

In every appeal in which a question may be raised as to the finality of the order or judgment of the lower court, that question must be ultimately decided here, but, upon the question of enforcing the order or judgment pending the appeal, the lower court not only can, but must, decide in the first instance whenever its decision is properly invoked. This court may decline to decide the question upon a preliminary motion, and in the absence of a full record, as was done in this case, but when it chooses to take that course (disposing of the motion, but reserving the right upon the final submission of the cause to consider the question of jurisdiction then, and meantime leaving it undetermined) the case is put in precisely the same condi

tion as if the motion had not been made, and no valid distinction can be raised by the sug gestion that we are "entertaining the appeal."

For these reasons I am of the opinion that, until we are prepared to say that an appeal lies from the order of the superior court, we have no right to prohibit its enforcement.

WARNER v. F. THOMAS PARISIAN DYEING & CLEANING WORKS. (No. 15,

266.)

(Supreme Court of California. July 9, 1894.) Motion to set aside judgment, and to reinstate cause. Granted.

For original opinion, see 37 Pac. 153.

PER CURIAM. The appellant's brief in this cause having been heretofore stricken out by the court, by reason of objectionable matter contained therein, and appellant having been thereafter, upon application, granted permission to file a brief in said cause, omitting such objectionable matter, and the opinion in said cause having inadvertently been filed, and judgment entered, before appellant had opportunity to file said brief, it is ordered that the judgment herein, and the submission of said cause, be, and the same are hereby, set aside, and said cause restored to the calendar; that appellant have 10 days from this date within which to file brief; and that, thereupon, said cause stand submitted.

(103 Cal. 187) VALLENS et al. v. TILLMAN et al. (No. 15,458.)

(Supreme Court of California. June 23, 1894.) BREACH OF CONTRACT-DAMAGES.

Defendants, being indebted to plaintiffs, agreed to buy from them 50,000 cigars per month until the profits thereon paid the debt; cigars to be of specified brands, and to correspond to samples. After defendants received a part of the cigars, they wrote plaintiffs they were not according to sample, and that they would take no more. Plaintiffs replied that if the cigars were not according to sample they would send them some that were, which defendants refused to accept. Held, plaintiffs could recover the debt, less the profits on the cigars accepted by defendants.

Department 2. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Eugene Vallens and another against Frederick Tillman and others for damages for breach of contract. Judgment for defendants, and plaintiffs appeal. Reversed.

Edmund Tauszky, for appellants. Daniel Titus, for respondents.

PER CURIAM. The plaintiffs are manufacturers of cigars at Chicago; the defendants, wholesale dealers at San Francisco.

Prior to February 4, 1889, defendants had purchased goods from plaintiffs, and, differences having arisen between them, a compromise was made through an agreement in writing of that date. In that agreement, among other things, it was stipulated that the plaintiffs claimed to have lost in the settlement $2,983.75, which defendants were willing "to assist in making up to them," and therefore agreed to purchase from plaintiffs 50,000 cigars per month for two years, "or until said party makes up said loss." The contract then proceeds to specify the brands to be furnished, which were to correspond to samples, and it was agreed "that the goods shall be equal in size, shape, and quality to said samples." The profit per 1,000 upon each brand was fixed in the agreement. It then states: "Should said party of the second part [defendants] conclude to go out of business of vending cigars at any time hereafter, or for any other reason, it may be released from its agreement to buy 50,000 cigars per month by paying to the said party of the first part the said sum of $2,983.75, or such part thereof as may remain unpaid at the time of so electing to discontinue such purchases." It is alleged by plaintiffs in their complaint that, since this agreement, the defendants have purchased from plaintiffs 180,000 cigars, the profits on which amount only to $380, and that defendants have refused to purchase any more, wherefore plaintiffs demand judgment for the sum of $2,603.75, which is the said sum of $2,983.75, less the said profits. The answer admits the contract; denies that plaintiffs have performed its conditions, that defendants have failed to perform, or have refused to purchase any more cigars from plaintiffs, or that plaintiffs have been willing to sell cigars in accordance with said agreement. Defendants aver that they performed the conditions of said contract in good faith until the plaintiffs committed a breach thereof by sending goods inferior in quality to the samples; that the defendants bought 180,000 cigars, but the goods were not like the samples, nor equal in size, shape, or quality; that defendants called plaintiffs' attention to the breach of the contract, and required them to furnish goods of the quality, size, and shape of the samples, which plaintiff's refused to do. The cause was tried with the aid of a jury, and the verdict and judgment were for defendants. Plaintiffs appeal from the judgment, and from an order refusing a new trial. Appellants contend that the court erred in admitting certain testimony over their objections, in giving instructions asked for by defendants, in refusing instructions asked for by plaintiffs, and in the instructions given of its own motion. Also, that the verdict is against the evidence.

It appears from testimony which is not disputed that, under the contract, defendants continued to take cigars from plaintiffs until July 18, 1889. At that time they had

received 160,000 and had paid for 120,000. There had been no complaint in regard to the goods furnished. On that day, however, they sent a telegram to plaintiffs, as follows: "Do not ship any more cigars. Will write particulars." July 29th plaintiffs received at Chicago a letter from defendants explaining the telegram. They complained of the cigars sent as not being like the samples in quality or shape, and say they had suffered heavy loss, and add: "Although by rights we should hold the goods subject to your order, we will keep them and bear the loss ourselves, rather than have any more trouble with you; but at the same time positively withdraw from the contract, and terminate it right here, and will not receive any more cigars from you. Our transactions with you thoroughly satisfy us not to have any more to do with you whatsoever. Our statement

as regards the quality of the goods can be substantiated by any reliable and square dealer or manufacturer of cigars who understands his business. Please return contract on receipt of this, and we will withhold payment of bill of June 25th until we hear from you." Two days later Tillman wrote another letter, reiterating the complaints in regard to the goods, and concluding: "Under the circumstances will not receive or purchase any more goods from you, as I certainly shall not deal with parties that I cannot trust.” July 27, 1889, plaintiffs replied to the two letters, asserting that the goods sent were according to contract, but admitting that defendants had a right to retire from the contract upon paying the sum of $2,983.75, upon which they admitted defendants were entitled to a credit of $380. They demanded payment of the bill acknowledged to be due and the balance of the $2,983.75. August 7th plaintiff's received a reply to this letter from defendants, in which defendants say that they wish no further argument in the matter, and that they hold the goods not paid for subject to plaintiffs' order. November 29th plaintiffs replied, saying: "If you have any goods which you claim we did not make in accordance with the contract now existing between us, you can return them to us, and we will make others in place of them. We firmly insist upon the completion of this contract, and will either furnish the goods to you as specified in said contract, or you may pay us the amount in cash which is due us on the contract." December 13th defendants replied, taunting the plaintiffs for not having sued, but at the same time consenting to pay for all the cigars they had received, and also to accept 20,000 others which had been stopped in transitu, although not up to the contract. They add: "In withdrawing from the contract which you did not keep we are fully justified, and think that in paying for all the goods that you sent us, at your own price, we are treating you with liberality." This must be held a refusal to accept more