see Final decree in trademark cases, 1. A secondary meaning of a trademark, indicating the owner's product alone, may be acquired by long use, so as to entitle it to protection in equity against infringement, whatever may have been the original weakness of such trademark. CocaCola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 2. The right of plaintiff to equitable relief against infringement of his trademark, where that is contested on the ground of his own fraudulent misrepre sentations to the public, must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 3. The right to relief against palpable fraud by imitation of a trademark for a beverage will not be denied on the ground that the beverage itself had formerly been sold under the false representa tion that it contained cocaine after that element had been eliminated, where all such deception had ceased before the suit was brought, and the public had been warned by advertising that it must not expect to find that drug in it, merely because of the possibility that, here and there, an ignorant person might call for the drink with the hope of incipient cocaine intoxication. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 4. The continued use of the trademark Coca-Cola and a label containing a picture of coca leaves and cola nuts, in connection with a beverage which originally contained cocaine, but in which coca leaves are now used only after they have been subjected to a drastic process that removes from them every characteristic substance except a little tannin and still less chlorophyl, and whatever of cola nut is employed furnishes but a small part of the caffein that is now the only element having appreciable effect, is not such misrepresentation as debars the owner of the trademark, which has acquired a secondary significance, indicating his product alone, from equitable relief against infringers, where, whatever may have been true of earlier advertising, the public is now told that it must not expect and will not find cocaine, and everything tending to suggest cocaine effects except the name and the picture of the leaves and nuts has been eliminated. Coca-Cola Co. v. Koke Co. 254 U. S. 143, 41 Sup. Ct. Rep. 113, 65: 189 5. Both the account of profits and the damages in a suit for the infringement of a registered trademark, brought in a Federal district court without diversity of citizenship, are limited to the date when notice was given of the registered mark, by the Trademark Act of February 20, 1905, § 28, which makes it the duty of the registrant to give notice to the public by attaching certain specified words or abbreviations to the trademark, or to the receptacle wherein the article is inclosed, and provides that "in any suit for infringement by a party failing so to give notice of registration no damages shall be recovered except on proof that the defendant was duly notified of infringement and continued the same after such notice," notwithstanding an earlier notice calling on the defendant "to discontinue the unfair competition and infringement on our rights," and the wilful Bros. Nurseries & Orchards Co. v. Stark, 255 character of defendants' wrongdoing. Stark U. S. 50, 41 Sup. Ct. Rep. 221, TRADE UNIONS. 65: 496 Effect on aliens, see Aliens. 1. Treaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals, and are to be executed in the utmost good faith, with a view to making effective the purposes of the contracting parties, and all parts of the treaty are to receive a reasonable construction, with a view to giving a fair operation to the whole. Sullivan v. Kidd, 254 U. S. 433, 41 Sup. Ct. Rep. 158, 65: 344 2. While the question of the construction of treaties is judicial in its nature, 1 Conversion by carrier, see Carriers, 11. TRUSTS. and courts, when called upon to act, should TROVER. TRIAL. Error in instructions, see Appeal and Error in directing verdict, see Appeal Right to trial by jury, see Jury. Question for jury. 1. A railway company sued for dam ages for personal injuries received in the Republic of Panama does not get less than it is entitled to when the court, in view of contradictory testimony from lawyers on the two sides, leaves to the jury the questions whether, under the law of Panama, the exercise by the railway company of due care in the selection of its employees relieves it from liability in damages for in juries resulting from the negligence of such employees, and whether, under such law, damages for physical pain are recoverable. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 2. It is for the jury to decide whether proper care required a railway company to have a flagman or gate at a much frequented street crossing, the view of which was par tially obstructed by a hedge, and to have a lookout when an engine is backing a car over the crossing, and to give warning by bell or whistle. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 3. Extreme youth of a child who was run over when attempting to cross a railroad at a street crossing may justify the court in permitting the jury to attribute his misfortune to the railway company's conduct alone, whatever difficulties there might be in the case of an older person. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. Rep. 199, 65: 400 4. The fact that plaintiff, in a suit upon an assigned claim in which the defense is champerty and maintenance, moved, as did the defendant, for a directed verdict, did not preclude him from also asking to go to the jury if the court held a contrary view concerning the evidence, and such request should have been granted where some sub stantial evidence strongly tended to show that the assignment was taken in extinguishment of an existing indebtedness, and not for mere speculation upon the outcome of intended litigation. Sampliner v. Motion Picture Patents Co. 254 U. S. 233, 41 Sup. Ct. Rep. 79, 65: 240 TRIAL DE NOVO. See Appeal and Error, 52. Trustees in bankruptcy, see Bankruptcy. Income tax on testamentary trustee, see Internal Revenue, 10, 15. Incidental relief in establishing trust, see Judgment, 2. Monopolistic trust, see Monopoly. Creation; termination. 1. An agreement between railway companies entering a city for the purchase, construction, and maintenence of terminal facilities at the joint expense of the railway companies, to be held and used in common, followed by the incorporation of a terminal company which was to exercise all its powers in accordance with the terms and spirit of such agreement, the conveyance to it of all the terminal properties by deeds absolute in form, and the issuance of stocks and bonds in payment, establish a trust under which the terminal company was vested, as trustee, with complete legal title, but without beneficial ownership, subject to the duty to maintain and operate the property and exercise all its corporate powers for the common use and benefit of the proprietary railway companies. cago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, Chi 65: 219 2. No particular form of words is essential to create a trust, provided there be reasonable certainty as to the property, the objects, and the beneficiaries. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 3. If the subject of a trust be a legal interest in property, and capable of legal transmutation, the trust is not perfectly created unless the legal interest be actually vested in the trustee. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 4. It is not necessary that the trust be expressed in the same instrument that transfers the title to the trustee. Various instruments may be read together in order to ascertain the intention to establish the trust. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 5. A working agreement between a terminal company and the proprietary railway companies which had created it to carry out a trust to maintain and operate the terminal property, and exercise all its corporate powers for the common use of the railway companies, at their joint expense, which agreement fixed the terms upon which the terminal property should be managed and the terminal services performed for a specified terms of years, and provided for the allotment of the stock of the terminal company to the proprietary companies,-did not set aside the trust, or place a time limit upon it. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 6. It would require a clear case to warrant a court of equity in declaring that the trustees of an express trust, in the very course of their administration of the trust, had acquired a dominant interest in the trust property, and in effect a discharge of the trust, through mere inattention or even negligence, not raising an estoppel or amounting to laches, on the part of the parties beneficially interested, or their executive officers. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 Dealing with trust estate. 7. Officers and directors of a terminal company which was created by certain railway companies entering a city to carry out a trust to maintain and operate the corporate property, and exercise all its corporate powers for the common use and benefit of the proprietary railway companies to whom was apportioned all the terminal company's capital stock, could only purchase such stock subject to all qualifications arising out of such trust that pertain to the property and franchises of the terminal company. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, Rights of beneficiaries. 65: 219 UNITED STATES. Federal operation of railroads general- Claims against, see Claims. Liability to interest, see Interest, 1. Right to trial by jury in suit against Party to suit against Indians, see Par- Private land claims, see Private Land Public Lands of, see Public Lands. Bribery of rederal officers or person exercising official function, see Brib ery. Jurisdiction of suit founded on tort of Federal officer, see Claims, 1, 2. Trading with Indians, see Indians, 2, 3. Enjoining action of Land Department, see injunction, 13. Return of marshal, see Writ and Proc ess. 1. The United States Shipping Board 8. Rents, switching, and other terminal Emergency Fleet Corporation, controlled charges which a terminal company created and managed as it was by its own officers, by certain railway companies to carry out and appointing its own servants and agents, a trust to maintain and operate a terminal who became directly responsible to it, must property and exercise all its corporate | be regarded as an entity separate from the powers for the common use and benefit of United States, notwithstanding the ownerthe proprietary railway companies received ship by the government of all its capital from outside railway companies and others stock, and a person employed by such Fleet should be credited to the proprietary rail- Corporation as an inspector is not an agent way companies upon a wheelage basis, the of the United States, within the meaning trust agreement providing that, in making of the Criminal Code, § 41, which forbids up the net cost of maintenance and opera- any person from acting as tion chargeable to the proprietary lines on agent of the United States in the transaca wheelage basis, there shall be deducted tion of business with a business concern with which he is connected as member, the amount, if any, which other railway companies may be under obligation to pay by virtue of contracts for the use of said property or parts thereof. Chicago, M. & St. P. R. Co. v. Des Moines Union R. Co. 254 U. S. 196, 41 Sup. Ct. Rep. 81, 65: 219 Liability of trust estate. 9. For proper professional services rendered and expenses incurred in promoting legislation that has for its object and effect the rescue of substantial property interests for a class of beneficiaries under a trust of a public nature it is equitable to impose a charge for reimbursements and compensation upon the interests of those beneficiaries who receive the benefit the same as if a like result had been reached through successful litigation in the courts. Winton v. Amos, 255 U. S. 373, 41 Sup. Ct. Rep. 342, 65: 684 UNFAIR COMPETITION. an officer or officer, or agent, or in which he has a 65:368 Right to maintain creditors' bill, see 2. The United States, though without pecuniary interest in the relief sought, may maintain a suit to enforce statutory and administrative restrictions on the disposal and leasing of allotments to Indians who have not been fully emancipated, but are still wards of the United States. La Motte v. United States, 254 U. S. 570, 41 Sup. Ct. Rep. 204, Immunity from suit. 65: 410 3. A suit by a railway company to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity Injunction against, see Injunction, 14, lands under a railroad land grant, which 15. See also Trademark. UNIFORMITY, In tax measures, see Taxes, 2, 3. the Land Department had ordered canceled solely on the ground that the land selected had, before approval by the Secretary of the Interior, been included in a subsequent temporary executive withdrawal for a water-power site, is not one against the ury appropriated for the specific purpose, United States, not maintainable without its and of §§ 3732 and 5503, and of the Act of consent, but is one to restrain such officers June 30, 1906, that no act shall be confrom canceling a valid indemnity selection strued to authorize the execution of a conthrough a mistaken conception of their au- tract involving the payment of money in thority, and thereby casting a cloud on the excess of appropriations made by law unless plaintiff's title. Payne v. Čentral P. R. Co. such act shall, in specific terms, declare an 255 U. S. 228, 41 Sup. Ct. Rep. 314, 65: 598 appropriation to be made, or that a con4. The objection of government controi tract may be executed. Sutton v. United of the railroads cannot defeat jurisdiction States, 256 U. S. 575, 41 Sup. Ct. Rep. 563, of a suit upon a reparation order of the 65: 1099 Interstate Commerce Commission where the 7. An unauthorized payment to a govshipments for which reparation was al-ernment contractor may be deducted from lowed moved prior to the taking over of the payments thereafter made to the same conrailroads by the government, since, under tractor for work under a wholly different the provision of § 10 of the Federal Rail-contract. Sutton v. United States, 256 U. road Control Act, "Actions at law or suits S. 575, 41 Sup. Ct. Rep. 563, 65: 1099 in equity may be brought by and against implied contracts. such carriers, and judgments rendered as now provided by law; and in any action at aw or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government." Vicksburg, S. & P. R. Co. v. Anderson-Tully Co. 256 U. S. 408, 41 Sup. Ct. Rep. 524, 65: 1020 8. The United States does not impliedly promise to compensate persons engaged in stock raising for the destruction of their business, or the loss sustained through the enforced sale of their cattle, the result of the inundation of their lands by the construction of a dam which arrests flood waters. Bothwell v. United States, 254 U. S. 231, 41 Sup. Ct. Rep. 74, 65: 238 Priority as creditor. 9. No contractual obligation on the part Appellate jurisdiction in suit under of the United States to pay for anti-hogLever Act, see Appeal and Error, 9. cholera serum, anti-cholera virus, and serum 5. The United States, having been giv-blood, seized without agreement to puren by U. S. Rev. Stat. § 3466, priority over chase by agents of the Bureau of Animal other creditors of an insolvent debtor, is Industry, and thereafter destroyed, can be entitled to such priority, as against a sure-implied from the provisions of the Act of ty on the debtor's bond to the government, March 4, 1915, that, in case of an emerfor the amount of its claim remaining un-gency arising out of the existence of certain paid after the surety has paid the full contagious or infectious diseases of aniamount of the liability on the bond, although by § 3468, when a surety pays to the United States the money due upon a bond, such surety is given like priority for the recovery of the money as is secured to the United States. While the priority given the surety by such statute attaches as soon as the obligation upon the bond is discharged, it cannot ripen into enjoyment unless or until the whole debt due the United States s satisfied. United States v. National Surety Co. 254 U. S. 73, 41 Sup. Ct. Rep. 29, 65: 143 Contracts generally. Appropriations for work already done, see Appropriations. mals, which, in the opinion of the Secretary 10. No government official can, by his acts or omissions, render the United States liable as upon an implied contract for work done by a government contractor after the appropriation therefor was exhausted, where no such official could have rendered the United States liable for such work by express contract. Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. Rep. 563, 65: 1099 6. The making of a contract binding the government to pay more than the amount appropriated was not within the power of the Secretary of War, under the River and Harbor Act of July 25, 1912, making an appropriation for completing a specified improvement, and providing in § S that whenever the appropriations made or authorized to be made for the completion 11. The subsequent use by the governof any river and harbor work shall prove ment of excavation work in a navigable insufficient therefor, the Secretary of War channel, done by a government contractor may, in his discretion, on recommendation after the appropriation therefor was exof the Chief of Engineers, apply the funds hausted, does not imply a promise to pay so appropriated or authorized to the prose for such excess work if, at any time therecution of the work,-especially in view of after, Congress should appropriate money the provisions of U. S. Rev. Stat. § 3733. to be applied in completing the improvethat no contract for any public improvement. Sutton v. United States, 256 U. S ment shall bind the government to pay a 575, 41 Sup. Ct. Rep. 563, 65: 1099 larger sum than the amount in the Treas- 12. Approriations by Congress for the construction or completion of a project for quantities," from a ship channel, which creating a navigable channel in accordance with the designs and specifications of a named corporation which had abandoned its own effort to obtain the desired channel clearly implies that Congress intended to give an experimental patented construction embodied in such designs and specifications a fair trial, and justifies the inference of a disposition, but not a contract, to pay for the use of the patented form of construction if it should prove to be valuable. Haupt v. United States, 254 U. S. 272, 41 Sup. Ct. Rep. 66, 65: 266 13. The United States cannot be held liable as upon a quantum meruit to the owner of a patent for the use which he claims the government made of his invention in creating a navigable channel, where not only did the construction as ultimately completed, which produced the desired channel, not embody any of the devices of the patent, but there is nothing from which a promise by the government to pay for the use of such devices can reasonably be implied. Haupt v. United States, 254 U. S. 272, 41 Sup. Ct. Rep. 66, 65: 266 construction and obligation. 14. No intention to bind the government for any amount in excess of that appropriated by Congress for completing an improvement can be deduced from provisions in a contract for doing the work at unit rates for dredging soft material and for excavating rock that, within the limits of available funds, the United States reserves the right to require the removal of such yardage as will complete the work, be it more or less than the quantities estimated. Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. Rep. 563. 65: 1099 - extra work; loss. 15. If, through mistake of the government's representatives, more work is done and work is continued for a longer period than was contracted for or authorized, the expenses of superintendence incident to the mistake should be borne by the government, and the contractor should not be made to suffer by the depletion of the appropriation. The fund otherwise available for work actually performed should be applied to that purpose. Sutton v. United States, 256 U. S. 575, 41 Sup. Ct. Rep. 563, 65: 1099 16. A government contractor cannot recover damages from the United States, occasioned by delays ordered by the government, where the contract gave large discretion to the United States to suspend performance, or change the work or material. providing for a compensating extension of time for performance, and in addition expressly declared. "No claim shall be made or allowed to the contractor for any damages which may arise out of any delay caused by the United States." Wells Bros. Co. v. United States, 254 U. S. 83, 41 Sup. Ct. Rep. 34, 65: 148 17. Despite provisions in a contract with the United States for excavating "sand, gravel, and boulders, all in unknown make final the decision of the government UNITED STATES SUPREME COURT. Freedom of speech or press in war time, see Constitutional Law, 74. |
