of the name could rightfully use them without authority from him. The trademark of the defendants consisted also of the initials of the founder of the business done by them, W. H. Weeks, and it is described in the answer and in the statement registered in the United States patent office as consisting of the letters "W. H. W.,' made in script, in white, on a dark ground." The defendants are engaged in the manufacture of confectionery, and state in answer that their goods include stick candies, toy forms, caramels, and plain confections, candied fruits, leaves, nuts, and the like. These, when prepared for use, are packed in boxes of various sizes and forms, each of which bears a slip or label indicating the variety of confectionery it contains, and another slip or label displaying the trademark, which affords to the purchaser an assurance that the goods one is about to buy are the genuine product of the defendants' establishment.

our trademark is the letters 'P. C. W."" Those are what indicate the ownership and origin of the goods, and they carry their assurance to the public without regard to their own shape, arrangement, or color. A tradesman can have no exclusive right to mathematical lines, to styles of printing, or colors.

The master finds that the defendants have adopted boxes and packages quite like those used by the plaintiffs. The same is no doubt true of most of the confectioners in the commonwealth. The boxes and packages are made by box manufacturers to contain an even num ber of pounds, or fractions of a pound, and are necessarily uniform in size and general ap pearance. They are made for the trade, and are sold to the trade, without discrimination. The plaintiffs and the defendants have an equal right to buy from the manufacturers; and they must buy boxes of the sizes and shapes made for, and in use by, confectioners generally. The similarity in size and shape of the boxes does not, therefore, justify the master in finding that they were selected for an improper or fraudulent purpose; for the size and shape of the boxes are determined by the makers, and fixed upon with a view to the accommodation of the largest number of purchasers.

The other circumstance to which the master refers as justifying his decree is the use of the same names for varieties of candies that the plaintiffs had previously used, and perhaps devised. But one who invents a machine or a new combination, or devises a new article, contributes the result of his skill and his inventive powers to the public if he does not take the necessary step to secure himself an exclusive right to use and vend his invention. If he does not do this, he must not complain if his neighbor appropriates his invention or device to his own use, and enters into competition with him in its production and sale. The ground on which the courts will interfere in such cases is to protect the inventor from the attempt of his neighbor to sell his own work as and for the work of the inventor. This would be enjoined as a fraud upon both the inventor and the public; but, so long as he sells his own work as his own, any man may imitate the unprotected work of any other man as closely as he is able. We think the injunction awarded in this case cannot be sustained upon the findings of the learned master, and should be set aside. If the defendants are really attemping to sell their own confectionery by representing it to the public as the production of the plaintiffs, this, and not an imitation or infringement of the trademark, should be charged in the bill as the ground of relief. The decree is reversed.

As a general proposition, the right of W. H. Weeks to the use of his name or initials as a trademark is as clear as that of P. C. Wiest to the use of his name or initials. Hoyt v. Hoyt, 143 Pa. 623, 13 L. R. A. 343. They are not the same. They do not even bear a close resemblance to each other. And the master reached the correct conclusion that there was neither imitation nor infringement shown by the evidence. If the initials had been the same, we do not see how the defendants could have been restrained from using his own; although in that case, we think, there should have been something in the manner of use to distinguish, and enable the public to distinguish, the product of the rival establishments from each other; and it is probable that without it a court of equity would have restrained the second comer. But in a recent case in New York (Chas. S. Higgins Co. v. Higgins Soap Co. 144 N. Y. 462, 27 L. R. A. 42), it was held that the prior use of one's name by other persons in the same business does not destroy the right of him whose name it is to use it. The right to use one's name seems to have been held to be a personal right, as clear in business as in personal correspondence. We have, however, no such question here. The master has recommended, and the court below has issued, an injunction against the defendants restraining them from the use of the letters W. H. W.,' printed in script, in white, in a horizontal line, npon a red background." This decree says to the defendant, "You have a right to your trademark, and may lawfully use it;" but going beyond the claim of the plaintiffs as stated in the bill, it adds, "You must not use the same kind of letters or mode of arrangement or colors used by the plaintiffs." Now, these accessions constitute no part of the plaintiffs' trademark. The description filed in the United States patent office states that the letters are generally used in script, but may be used in any other way. They are put upon a effort of appellants to get a part of plaintiff's This is a perfectly clear case of fraudulent background of "any suitable color," no color whatever being named. If this injunction can lettering, coloring, etc., as will deceive and trade, by such imitation of his boxes, labels, be sustained on the ground on which it was mislead intending purchasers. It is an effort put in the court below, there is no style of let- which equity ought to, and usually does, enter, no mode of arrangement, no color in the solar spectrum, to which the plaintiffs cannot join, without reference to the strict doctrine of lay equal claim. But, as the plaintiffs them-trademarks. For this reason I would affirm selves say in the description from which we

have quoted, "the essential characteristic of

No order is made in relation to costs.

Mitchell, J., dissenting:

the decree.

Dean and Fell, JJ., concur.

NEW YORK COURT OF APPEALS.

NOTE. As to assignments of life insurance pol- | (Ind.) 9 L. R. A. 663; also Brick v. Campbell (N. Y.) icies made payable to a wife, see a considerable 10 L. R. A. 259, and note.

Frank v. Mutual L. Ins. Co. 102 N. Y. 266, 55! Am. Rep. 807; Brummer v. Cohn, 86 N. Y. 11, 40 Am. Rep. 503; Brick v. Campbell, 122 N. Y. 337, 10 L. R. A. 259; Champlin v. Laytin, 18 Wend. 412, 31 Am. Dec. 382; Weed v. Weed, 94 N. Y. 248.

Mr. William Kernan, for respondent: The assignment of the policy by the plaintiff, with the written consent of her husband, to the defendant, Myers, was valid, and the defendant, Myers, was entitled to the policy and is entitled to the proceeds thereof.

Laws 1879, chap. 248, § 1.

In the interpretation of statutes the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances.

People, Wood, v. Lacombe, 99 N. Y. 43; People, Westchester F. Ins. Co., v. Davenport, 91 N. Y. 574; People, Commonwealth Ins. Co., v. Coleman, 121 N. Y. 542.

The policy was issued within the meaning of the act of 1879, "within the state of New York, upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the state."

So far as our courts have discussed and passed upon this question, they have sustained such assignment of policies issued by companies of other states and assigned in this state. Wilson v. Laurence, 13 Hun, 238, 76 N. Y. 585; Brick v. Campbell, 122 N. Y. 337, 10 L. R. A. 259; Connecticut Mut. L. Ins. Co. v. Van Campen, 32 N. Y. S. R. 1125; Miller v. Campbell, 140 N. Y. 457.

Our courts have not held that outside of the act of 1840 such policies are not assignable. They have held that their nouassignability was due to the act itself, that the designs of the act were to provide for widowhood, and the intention was that the wife could not fustrate that design by assignment.

Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395; Living v. Domett, 26 Hun, 151; Wilson v. Lawrence, 13 Hun, 238; Barry v. Equitable L. Assur. Soc. 59 N. Y. 587; Brummer v. Cohn, 86 N. Y. 11, 40 Am. Rep. 503; Frank v. Mutual L. Ins. Co. 102 N. Y. 266, 55 Am. Rep. 807. If the plaintiff claims the benefit of the act of 1840 making the policy nonassignable, then she must submit to the act of 1879, which did away with the nonassignability of the policy under the act of 1840 and rendered it assignable.

The assignment of such policy by the wife was allowed by the law of Connecticut and is valid, and the defendant is entitled to the proceeds under such law.

Continental L. Ins. Co. v. Palmer, 42Conn. 66, 19 Am. Rep. 530: Connecticut Mut. L. Ins. Co. v. Westervelt, 52 Conn. 586; Barry v. Equitable L. Assur. Soc. 59 N. Y. 587.

The provision in the policy "that no assignment of this policy shall be valid" does not affect the assignment to the defendant Myers. Leinkauf v. Calman, 110 N. Y. 50.

O'Brien, J., delivered the opinion of the

court:

The plaintiff claimed to be entitled to the proceeds of a policy of insurance upon the life of her husband, and the learned trial judge sustained her claim. The general term reversed the judgment, having arrived at a different conclusion, upon what seems to us to be a very reasonable construction of a statute which is involved. On the 28th of October, 1880, the plaintiff's husband insured his life for her benefit in the Connecticut Mutual Life Insurance Company. The policy was issued at Hartford. and sent by mail to one of the agents of the company in this state, to be delivered to the husband, who had made the written application upon which it was issued. The insured died in January, 1890, with the policy in force. The plaintiff claimed the money payable under the policy amounting to $2,000, as widow of the insured, and the payee named therein. The defendant also claimed it under a written assignment from the plaintiff, to which her husband, the deceased, had consented in writing executed in due form. Both parties claiming the money, the company refused to pay either, and the plaintiff brought the action against it alone. Subsequently it paid the money into court, and the assignee was made a party. The controversy is, therefore, between the widow and her assignee, and turns upon the validity of the assignment. It is quite true, as urged by the learned counsel for the plaintiff, that prior to the statutes (Laws 1873, chap. 821; Laws 1879, chap. 248) a married woman was incapable of assigning a policy of insurance for her benefit upon the life of her husband. Miller v. Campbell, 140 N. Y. 457: Romaine v. Chauncey, 129 N. Y. 574, 14 L. R. A. 712; Brick v. Campbell, 122 N. Y. 343, 10 L. R. A. 259; Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395. But the obvious purpose of these statutes was to remove this disability, and it is not contended that the incapacity still exists in general, but only in particular cases. The learned counsel for the plaintiff has devoted a considerable part of his argument to establish the proposition that the policy was issued and delivered in the state of Connecticut, and not in this state, and therefore is a Connecticut contract. For the purposes of this case we will assume that he is correct in this contention. But we think that is not a material circumstance in the determination of the rights of the parties in a controversy between them with respect to the right to receive the money. Such a policy is assignable by the wife under the laws of Connecticut. Continental L. Ins. Co. v. Palmer, 42 Conn. 66, 19 Am. Rep. 530: Connecticut Mut. L. Ins. Co. v. Westervelt, 52 Conn. 586; Barry v. Equitable L. Assur. Soc. 59 N. Y. 587. The law of the place where the contract is made is sometimes important when questions concerning its validity or construction are involved. But in this The sole ques

The fact that the hubsand and wife had a child to whom the insurance was payable in case the wife did not survive the husband did not affect the validity of the assignment. The contingent interest of the child did not arise, and by the assignment the defendant Myers became vested with the whole interest in the pol-case no such questions arise. icy.

Anderson v. Goldsmidt, 103 N. Y. 618.

tion is whether it was transferable, and whether the defendant, by the assignment, has acquired

the right and title to the proceeds. Nor is there | created, assignable. It is scarcely possible that any question made with respect to the suffi- the question as to which side of the boundary ciency of the instrument of assignment, in form line of the state the policy was made or delivand substance, to pass the beneficial interest, if, ered could have been present to the legislative by the laws of this state, the policy could be mind. transferred under any circumstances. In what- It is said that statutes changing the common ever state or jurisdiction the obligation had its law with respect to the rights and disabilities legal origin, it was held within this state as prop- of married women must be strictly construed. erty.and was subject, in all respects, to the laws That, of course, is a well-settled principle, but of this state. The plaintiff's contention must is hardly applicable here. That the common rest entirely upon the proposition that by the law has been changed by the statute, there is laws of this state she was incapable of making a no dispute, and can be none. It is admitted valid assignment, and this we understand to that the intention was to remove the incapacity be the ground upon which she relies to sustain of a married woman to assign an insurance this appeal. The act of 1879 (chap. 248) is en-policy issued for her benefit on the husband's titled An Act for the Relief of Policy Holders life. What is claimed is that the power thus in Life Insurance Companies," and the 1st conferred is not generally applicable to all such section reads as follows: "All policies of in- policies, but special, depending entirely on the surance heretofore or hereafter issued within place where they were issued,-a circumstance the state of New York upon the lives of hus- that cannot be supposed to have had any inbands for the benefit and use of their wives, influence upon the legislation or the choice of pursuance of the laws of this state, shall be, language for the expression of the thought in from and after the passage of this act, assign the legislative mind. The rule does not reable by said wife with the written consent of quire courts in any case to seize upon some her husband; or, in case of her death, by her word or expression in a statute, and, by giving legal representatives, with the written consent to them a narrow or literal meaning, defeat of her husband, to any person whomsoever, or the general purpose and manifest policy inbe surrendered to the company issuing such tended to be promoted. It being conceded policy, with the written consent of the hus- that the intention was to enable a married band." That this statute has removed the dis- woman to transfer her interest in certain propabilities of married women to assign insurance erty, we are not required to resort to strict policies upon the lives of their husbands, at construction for the purpose of limiting the least to some extent, is not, and of course can- power to obligations created in this state, when not be, denied. But the learned counsel for we can see that its convenience and necessity the plaintiff insists that it applies only to pol-are equally applicable to contracts made else icies issued within the state of New York;" where. In such a case we should be guided that is to say, that it extends no further than by the general and well-settled principles for to enable them to assign policies issued by our the construction of statutes. They were well domestic companies; and that, since the policy stated in the case of People, Wood, v. Lacombe, in question was issued by a foreign company. 99 N. Y. 43, in this language: In the interand in another state, the disability to assign pretation of statutes, the great principle which still exists, and existed when the plaintiff made is to control is the intention of the legislature the assignment in question. We think that in passing the same, which intention is to be such a construction of the statute is altogether ascertained from the cause or necessity of too narrow. It rests entirely upon a close ad- making the statute as well as other circumherence to the literal meaning of words, and stances. A strict and literal interpretation is fails to take into consideration the policy and not always to be adhered to, and where the general purpose of the statute. Of course, it case is brought within the intention of the was passed for the purpose, as indicated by the makers of the statute, it is within the statute, title, of relieving married women from the dis- although by a technical interpretation it is not ability referred to. But what good reason is within its letter. It is the spirit and purpose there for saying that the legislature intended, of a statute which are to be regarded in its inIn a case where two policies were issued upon terpretation; and if these find fair expression the husband's life for the benefit of the wife, in the statute, it should be so construed as to one by a foreign and the other by a domestic carry out the legislative intent, even although company, that the latter was to be transferable such construction is contrary to the literal and the former not? At the time of the pas- meaning of some provisions of the statute. A sage of the act probably one half the policies reasonable construction should be adopted in for the benefit of married women within the all cases where there is a doubt or uncertainty state had been issued by foreign companies, in regard to the intention of the lawmakers. and they were being constantly issued in the These general rules are upheld by numerous same proportion. It is difficult to suppose any authorities." People, Westchester F. Ins. Co., practical or rational purpose that the legisla- v. Davenport, 91 N. Y. 574; People, Commonture could have had in view if it intended to realth Ins. Co., v. Coleman, 121 N. Y. 542; remove the disability to assign as to one half Smith v. People, 47 N. Y. 330. The stipulathese policies and retain it as to the other half. tions in the policy against an assignment do not Nor can the purpose of discriminating against affect the question as to the defendant's rights. foreign companies and favoring our own be Whatever force these clauses had, the comimputed to the lawmaking power with any pany alone can take advantage of them, and, It must be assumed that the in- as it has declined to, and paid the money into tention of the statute was to make obligations court, they do not concern the plaintiff. We of this character held in this state, wherever think that the assignment of the policy to the

more reason.

MINNESOTA SUPREME COURT.