charterer. The charterer does not defend on the ground that the underwriter and not the libelant is the real party in interest, in whose name suit should always be brought (Fretz v. Bull, 12 How. 466, 13 L. Ed. 1068) and that payment to the libelant with notice of that fact might not protect it against a subsequent claim by the underwriter, but on the ground that the insurance was to protect it as well as the owner. There is no evidence of this, and when the libelant offered the policy in evidence it was excluded upon the charterer's objection. As the charterer was not liable for the damage, the underwriter could not recover against it in any event. The decree is reversed. On Reargument. PER CURIAM. [1-3] A majority of the court think that the issue of negligence in this case was not presented by the appellant originally and that we should not take that point for him on this appeal, regardless of the merits. It is true that in the proceeding he claimed below that he had not been negligent in leaving the scow as he did, but the assignments of error were not sufficient to raise the point except by what we think to be an undue extension. The only assignment of error which can in any sense be said to raise it is the first, that "the District Court erred in finding respondent was liable for the damages sustained by the libelant." If the case rested merely on that, we might hold that such an assignment was sufficient to raise the question of negligence, but it did not. Upon the first argument the point was not raised at all, and at the conclusion of his proof at page 11 the appellant said in speaking of the judge below, "He should have allowed a recovery against the respondent-appellant only in so far as Kennelly was uninsured." This we consider equivalent to an abandonment of any point except the question of insurance, and upon that we all agree that the case is controlled by White v. Upper Hudson Stone Co., 248 Fed. 893, 160 C. C. A. 651, decided December 11, 1917. The decree will be affirmed, but without costs. (250 Fed. 231) UNION DAIRY CO. v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. February 20, 1918.) No. 2534. 1. FOOD New, vol. 15 Key-No. Series-FOOD AND DRUG ACT-VIOLATION. Under Food and Drug Act (Act June 30, 1906, c. 3915) §§ 2, 6, 9, 34 Stat. 768 (Comp. St. 1916, §§ 8718, 8722, 8725), respectively declaring that the introduction into any state or territory from any other state or territory of any article of food or drugs which is adulterated and misbranded is prohibited, that the term "food" shall include all articles used for food, drink, confectionery, or condiment by man or other animals, and that no dealer shall be prosecuted when he can establish a guaranty signed by the wholesaler, manufacturer, or other party residing in the United States, from whom he purchased such article, that the same was not adulterated or misbranded, a dairy company, which shipped from its receiving plant in Illinois to Missouri milk, which was adulterated by the addition of water and which contained decomposed animal matter, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes cannot defeat a prosecution on the ground that the milk was to be treated in Missouri, and was not an article of food until after treatment. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Food.] 2. FOOD 21-"ADULTERATION"-EVIDENCE-JUDICIAL NOTICE. In view of Food and Drug Act, § 7 (Comp. St. 1916, § 8723), declaring that an article shall be deemed to be adulterated if any substance has been mixed with it, so as to reduce or lower or injuriously affect its quality or strength, it is unnecessary, in a prosecution for the interstate transportation of milk adulterated with water, for the court to receive evidence that the addition of water injuriously affected the quality or strength of the milk. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Adulteration.] In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois. The Union Dairy Company, a corporation, was convicted of violating the Food and Drug Act, and it brings error. Affirmed. Writ of error to review judgment in favor of the government and against plaintiff in error for violation of Food and Drug Act. Plaintiff in error is charged with having shipped 75 cans of milk from Troy, Ill., to itself at St. Louis, Mo., which milk was adulterated through the addition of water, and it was further charged that "filth, putrid and decomposed animal substance," was found therein. L. W. Holder, of Chicago, Ill., for plaintiff in error. EVAN A. EVANS, Circuit Judge. [1] Plaintiff in error contends that it was shipping the milk from a receiving station in Illinois to itself in Missouri, there to be treated, impurities removed, and the milk standardized; that while in transit it was not an article of food such as was defined by the Food and Drug Act, and did not become such an article of food until after treatment. Were we to adopt this conclusion, it would do violence to the plain language of section 2 of the act under which prosecution is brought. The first sentence of section 2 reads: "The introduction into any state or territory or the District of Columbia, from any other state or territory or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited." Section 6 of the act provides: "The term 'food' as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals whether simple, mixed, or compound." Our conclusion is strengthened by another section of the act. Section 9 provides: For other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes "No dealer shall be prosecuted under the provisions of this act, when he can establish a guarantee signed by the wholesaler, jobber, manufacturer or other party, residing in the United States, from whom he purchased such articles, to the effect that the same is not adulterated or misbranded within the meaning of this act, designating it." In Hipolite Egg Co. v. United States, 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364, the court said: "Transportation in interstate commerce is forbidden to them [decayed eggs], and in a sense they are made culpable as well as their shipper. It is clearly the purpose of the statute that they shall not be stealthily put into interstate commerce and be stealthily taken out again destination and be given asylum in the mass of property in the state." * * * at their In passing this act, Congress was endeavoring to protect the public by keeping out of commerce certain illicit articles, debased by adulteration, and it would be an unjustifiable construction of the act to make liability turn upon a difference in identity of consignor and consignee, or the secret intent with which a shipper made the ship ment. [2] Plaintiff in error further contends that the evidence fails to show any adulteration at all, or such an adulteration as injured the milk as food. We have carefully examined the record, and, giving the stipulation of the parties the fair meaning which we believe was intended, the adulteration was clearly established. It was unnecessary for the court to receive evidence to establish the fact that the addition of water to milk injuriously affected the quality or strength of milk. See section 7 of the act. Judgment is affirmed. (250 Fed. 233) FEDERAL COAL CO. et al. v. BALLARD et al. (Circuit Court of Appeals, Sixth Circuit. No. 3138. March 15, 1918.) CORPORATIONS 574-REORGANIZATION OF CORPORATION-PRELIMINARY INJUNCTION. An order granting a preliminary injunction, and appointing receivers in connection with the proceedings for reorganization of an insolvent corporation, affirmed as modified. Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Suit in equity by S. Thurston Ballard and others against the Federal Coal Company, T. R. Preston, C. M. Preston, F. B. Martin, W. A. Sadd, L. A. Powell, and others. From an order for preliminary injunction and receivers, defendants appeal. Modified and affirmed. Charles C. Moore, J. J. Lynch, and Allison, Lynch & Phillips, all of Chattanooga, Tenn., and Harmon, Colston, Goldsmith & Hoadley and Edw. Colston, all of Cincinnati, Ohio, for appellants. T. Kennedy Helm and Stanley E. Sloss, both of Louisville, Ky. (Helm & Helm and Bingham, Sloss, Tabb & Mann, all of Louisville, Ky., of counsel), for appellees. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 162 C.C.A.-24 Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges. PER CURIAM. Appeal from an order for preliminary injunction. and for receivers. We agree with Judge Cochran that the arbiter who gave the "Chattanooga interests" the majority in the meeting of September 15th was disqualified by interest, and that the proceedings of that meeting were incidental to a deliberate plan for overriding an essential provision of the reorganization agreement. We also agree with him that it is unnecessary now to determine the validity of the voting trust. The plainest principles of fair dealing not only require that the Chattanooga interests should co-operate in every reasonable way to make the voting trust valid and effective as they agreed, but also demand that, if the law does not permit this result, the reorganization agreement shall fail entirely, and the property be sold and the proceeds distributed as if that agreement had not been made. We need only say that the voting trust is not so apparently, or so surely, invalid-under the laws of a state to which the parties may resort for organization or under the laws of Kentucky-as to require us now to assume that invalidity. The mandatory provisions for recalling and placing in the custody of the clerk the temporary bonds which were issued just before the bill. was filed, but while the controversy was pending in another form, may well have been thought reasonably necessary to effective maintenance of the status quo during this litigation, and are approved; but those further mandatory provisions, which direct releases, cancellations, or the execution of conveyances, transfers, deeds, etc., seem to go beyond the scope of a provisional order, and they should be suspended, but without prejudice to the re-entry of any or all of them upon final decree, or earlier, if any exigency shall require, and without prejudice. to the broadening of the injunction and receivership in any way that may be necessary to make them efficient. In all other respects, the order is affirmed. No costs are awarded. (250 Fed. 234) DETROIT SHOWCASE CO. v. KAWNEER MFG. CO. (Circuit Court of Appeals, Sixth Circuit. April 5, 1918.) 1. PATENTS 328-VALIDITY AND INFRINGEMENT-STORE FRONT CONSTRUC TION. Patent No. 852,450, for store front construction, held valid and infringed. 2. PATENTS 238-INFRINGEMENT UNITING TWO PARTS IN ONE. While infringement is not avoided by forming in one part two elements of a patented device, if the part thus formed secures the same results in substantially the same way as the two elements, a combination claim is not infringed, where one of its elements is omitted, without the substitution of an equivalent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. PATENTS 328 GLASS PLATES. INFRINGEMENT ORNAMENTAL CONNECTION BETWEEN The Plyin patent, No. 860,150, relating not only to store front but to showcase construction, and designed to provide a simple, strong, durable, inexpensive, and ornamental connection between glass plates, held not infringed. 4. COURTS 290-FEDERAL COURTS-JURISDICTION. Where a patent has been held valid and infringed, the unfair competition feature arising out of that infringement may be included in an accounting for profits and damages, though the parties are citizens of the same state. 5. TRADE-MARKS AND TRADE-NAMES 70(1)—UNFAIR COMPETITION-WHAT CONSTITUTES. Defendant, which appropriated plaintiff's patent for sash rail construction, is not liable for unfair competition, where there was no closer imitation of plaintiff's product than would naturally result from the appropriation. 6. TRADE-MARKS AND TRADE-NAMES 73(1)—UNFAIR COMPETITION-PROTEC TION. Where a word is descriptive of the article sold, it is not the subject of a trade-mark, and it will not receive protection, unless it has been so used as to have acquired a secondary meaning. 7. TRADE-MARKS AND TRADE-NAMES 93(3)—UNFAIR COMPETITION-EVI DENCE. Evidence held insufficient to show that plaintiff had a trade-mark in the term 'almetal," under which it sold its metallic sash rails, etc., so that defendant's use of that word to describe its own metallic sash rail construction was not unfair competition. 8. TRADE-MARKS AND TRADE-NAMES 71-UNFAIR COMPETITION-VALIDITY OF TRADE-MARK. The existence of a valid trade-mark is not essential to a right of action for unfair competition, where defendant palmed off its products as those of plaintiff. 9. COURTS 290-FEDERAL COURTS-JURISDICTION. Where a patent was found not to have been infringed, and the parties to the suit were citizens of the same state, the federal court held, under the facts presented, without jurisdiction over a cause of action for unfair competition arising out of defendant's sale of the alleged infringing articles. Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. Suit by the Kawneer Manufacturing Company against the Detroit Showcase Company. From a decree for complainant (240 Fed. 737), defendant appeals. Affirmed in part, and in part reversed and remanded, with directions. Pagelsen & Spencer, of Detroit, Mich. (Leo M. Butzel, of Detroit, Mich., on the brief), for appellant. W. R. Lane and Clarence J. Loftus, both of Chicago, Ill., for appellee. Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge. KNAPPEN, Circuit Judge. Suit for infringement of United States patents No. 852,450, May 7, 1897, and No. 860,150, July 16, 1907, both For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |