constitute a fraudulent representation, deceiving the public and injuring plaintiff. Theo. Bacon, for applt. LEWIS, J.-The referee has found that the cans and labels used by defendant were so dissimilar to those in use by plaintiff as to be readily distinguished or recognized by a casual observation or inspection on the part of a purchaser of or dealer in such commodities, and that defendant had not been shown guilty of any fraudulent representation in the sale of its oil. Specimens of the respective packages were produced and submitted to our observation. There is a similarity in the shape and size of the cans; they are both made of tin and painted red. Plaintiff's specimen is perceptibly larger than defendant's, and its color a number of shades lighter. There is not a sufficient dissimilarity in size as to be readily distinguishable from each other unless viewed when standing side by side. They are both of the common cylindrical form; cans of similar form and shape may be seen upon the shelves of all grocery stores. Their form is such as would be naturally suggested for strength, durability and convenience in handling. There is nothing peculiar in the color, it is common red. There is nothing, therefore, in the size, shape, form or color of plaintiff's cans which it could appropriate and prevent others from using. 89 N. Y., 297. Plaintiff's and defendant's labels are a black color, but with a differ ent tinge. Black is a color which for obvious reasons would be selected; a lighter color would easily soil and show stains. Plaintiff could obtain no exclusive right in the use of such a color. When we come to examine the printed matter upon the respective labels, and the ornamentation thereof, we fail to find evidence of any fraudulent intent to imitate plaintiff's label. The labels are applied in the ordinary manner and entirely surround the can. The ornamental borders are of quite different style and pattern. Plaintiff's label reads as follows: "Patented April 4, 1865; Sept. 11, 1866. The celebrated Vacuum Harness Oil for softening and preserving harness, boots, shoes, buggy tops, etc. Manufactured by Vacuum Oil Company, Rochester, N. Y." The words, "Patented" etc., are in small type, as is the word "celebrated." The words, "Vacuum Harness Oil" are in large conspicuous type. In the center of the label is the figure of a horse harnessed to a sulky, with a man in the sulky driving the horse at a rapid gait. Upon one side of the figure is the word "Dexter," in small letters, and upon the other side, the figures "2:17," in small figures. Defendant's corresponding label reads: "The celebrated Acme Harness Oil for softening and preserving leather, made by the Vacuum process and excels any oil in use for harness, buggy tops, boots, shoes etc." Upon one side of the label within circular lines are the words, "Manufactured by Buffalo Lubricating Oil Company, Limited, Buffalo, N. Y." The features of plaintiff's label which would naturally attract the eye of a purchaser are the words, "Vacuum Harness Oil" and the horse, sulky and driver. The features of defendant's label which would first attract the eye are the words. "Harness Oil," which are in large letters and are placed upon the label in a very different manner from the words, "Vacuum Harness Oil" upon plaintiff's label, and the words contained within the circular lines. The conspicuous words on the reverse side of plaintiff's can are: "Advantages claimed for the Vacuum Harness Oil." "Directions for use." These are in large letters, the balance of the contents being in small letters. The label of defendant corresponding with this of plaintiff's, reads: "Use the Acme Harness Oil. Because" (here follows a statement of its qualities). "Directions." (here follows the directions.) The letters on the labels are nearly the same size, but plaintiff's has very nearly twice as many words as defendant's. The conspicuous words are those just quoted. The borders upon these two labels are entirely unlike, plaintiff's being a narrow, continuous gilt line and the defendant's a wide, ornamental border. While there is a resemblance between the cans of plaintiff and defendant, there is not a sufficient similarity to indicate an attempt at imitation. Any person of common, ordinary understanding exercising ordinary care could not mistake one for the other. When ordinary attention on the part of customers will enable them to discriminate between the trademarks of different parties, the court will not interfere. 66 N. Y., 69. There was no evidence that any person had purchased one of defendant's cans supposing he was buying plaintiff's. It appears that other dealers manufactured oils by the vacuum process before plaintiff did. Judgment affirmed. Haight and Bradley, JJ., con cur. APPEAL. N. Y. COURT OF APPEALS. Reed, respt., v. Trowbridge, applt. Decided June 14, 1887. On the trial plaintiff established a claim for $1,465.47, less a counterclaim admitted on the trial of $1,265, and recovered a judgment for the balance, $200.47 and costs, in all $429.38. Held, That the amount in controversy was the $1,465.47, and being for more than $500 the case is appealable to the Court of Appeals. This was a motion to dismiss defendant's appeal on the ground that the amount in controversy was less than $500. The judgment was for $200.47 and costs, making in all $429.38, This verdict was secured by plaintiff after a trial, in which he established a claim of $1,465.47, less a counterclaim of $1,265, which was admitted on the trial. Theodore F. Miller, for motion. Held, That the motion should be denied; that the amount in con troversy is the sum of $1,465.47 and being under § 191, Code of Civ. Pro., more than $500 the case is appealable to this court. Motion denied. Mem. per curiam. All concur. MORTGAGE. PRIORITY. N. Y. COURT OF APPEALS. Seymour, respt., v. McKinstry et al., applts. Decided June 7, 1887. A party claiming the benefit of the position of a purchaser in good faith and for a valuable consideration is bound to allege and prove that fact. Plaintiff sold certain premises to one S. under agreement by which he was to be paid the proceeds of a $5,000 mortgage to be given on the premises, and a second inortgage of $3,000 should be given to his wife. McK., with knowledge of this arrangement, took a $5,000 mortgage, assigned it and paid part of the proceeds to S., retaining the balance to apply to claims against S. Held, That McK. was not a bona fide incumbrancer for value beyond the sum so paid by him, and that if his assignee relied on the fact that he took without notice he should have alleged it in his answer. Affirming S. C., 21 W. Dig., 77. This is a controversy between plaintiff as an unpaid vendor of real estate, and defendants, one as mortgagee, and the other as assignee of the mortgage given by the vendee of the land. The controversy relates to the priority of their claims. It appeared that on It appeared that on Aug. 7, 1872, plaintiff conveyed the premises in question to his son I. by warranty deed for $9,100, $5,000 of which was to be paid in the following manner: Plaintiff and I. agreed with Eq. L. Ins. Society that I. should execute to it a first mortgage upon the premises for $5,000, which sum was to be paid directly to plaintiff. Relying upon this arrangement, plaintiff delivered the deed to I. The company refused to make the loan, and I. had the deed recorded, and on Sept. 23, without plaintiff's knowledge or consent, I. executed to the defendant McK. a mortgage for $5,000, which was recorded that day, the consideration of which was an account of $2,400 due from I. to McK., two judgments of $300 against I., and a check for $2,100.37 payable to I., which he the same day indorsed and gave to plaintiff, who still remained in possession of the premises. The court found that before McK. advanced any of the consideration of the mortgage he knew that plaintiff claimed to be entitled to $5,000 as part of the purchase price of the premises. On Sept. 28 McK. sold the mortgage to defendant S. for $5,000 and covenanted that there was unpaid and owing thereon $5,000. It did not appear that S. when he took the assignment had not notice of plaintiff's equitable rights or the facts from which they arise. He did not deny such notice. Louis Marshall, for applts. Held, That McK. was not a bona fide incumbrancer or purchaser for value beyond the sum of $2,100.37; that the fact that plaintiff was in the actual possession of the premises was sufficient to put S. on inquiry, and it was his duty to ascertain if plaintiff had any interest therein, and for this purpose to have some communication with or from him, 20 N. Y., 400; 6 Paige, 383; that if S. relied upon the fact that he took without notice, it should have been set up in the answer. 49 N. Y., 286. When there is fraud the presumption is that he who is guilty will part with the instrument for the purpose of enabling some third person to recover upon it, and such presumption operates against the holder, and it devolves upon him to show affirmatively the facts essential to overcome that presumption. 43 N. Y., 298; 55 id., 441; 45 id., 762; 3 Johns. Ch., 332. Simpson v. Del Hoyo, 94 N. Y., 189; Fisk v. Potter, 41 id., 64, distinguished. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Danforth, J. All concur, except Ruger, Ch. J., not sitting. PROMISSORY NOTE. DE- N. Y. SUPREME COURT. GENERAL Decided June, 1887. The fact that the plaintiff is not the owner of a note is an available defense, but to defeat such defense it is sufficient that plaintiff's title is merely colorable, and such as to bar another action against the defendant upon the subject of the action. Where a note has been transferred to a plaintiff without right or authority from the true owner, such defense would be effectual unless plaintiff by the transfer became a bona fide holder of the note, and the mere taking a transfer of a note upon or on account of a precedent debt will not constitute the transferee such holder. An agreement to take a note and extend the time of the payment of a debt due from the transferrer to the transferee until the transferred note becomes due would render the transferee a bona fide holder, but where the evidence of such an agreement rests upon the testimony of the plaintiff in the action, it becomes a question of fact to be determined by the jury whether such an agreement was made or not, and it is error for the court to dispose of the question as one of law. Appeal from a judgment entered upon a verdict directed in favor of plaintiff. Action on a promissory note made by defendant by which he promised to pay Henry Swink or bearer $300 fifteen months after date. There was evidence tending to show that when the note was made it was delivered to Jennie Green, pursuant to an agreement between her and her husband, Frederick Green, by which she was to receive it in consideration of her release of her inchoate right of dower in lands conveyed by him, she joining, to defendant; that she handed the note to her husband to put in a safe to keep for her, and that her husband before the note became due, without her knowledge or consent, transferred the note to plaintiff, who held a past due note against him for $110 on which some indorsements had been made, under an agreement as testified to by plaintiff as follows, to wit, that at the time of the transfer to him the husband proposed to let plaintiff have it on what he owed him and to collect it when due, take out of the pro ceeds the amount owing him, and keep the balance until called for by the husband, and that plaintiff replied that he would take the note for his pay, "and keep the rest until he called for it. I was going to wait on him until it was due." It did not appear that there was any other consideration for the transfer. The defense was that plaintiff was not the owner of the note. It was contended that by the arrangement as sworn to plaintiff was not a bona fide holder of the note in question, and defendant asked to go to the jury on the questions as questions of fact. Verdict directed for plaintiff and defendant excepted. Bingham & Payne, for applt. J. A. Vanderlip, for respt. Held, That if plaintiff was not in fact the owner of the note that fact was a defense to the action available to defendant, but to defeat that defense it is sufficient that the title and transfer are merely colorable, and such as to bar another action against defendant upon the subject of the action, because in such cases inquiry will not be made into the equities arising out of the apparent relation produced by the transfer, when it is made by the person who has title or right to make it. Code Civ. Pro., § 449; 74 N. Y., 486; 16 Hun, 592; 30 id., 488; 36 id., 362; 39 id., 378. That the evidence permitted the conclusion that Jennie Green was the owner of the note at the time of the transfer, and that the transfer was made by her husband without right or authority, and the defense would be effectual unless by the transfer plaintiff became a bona fide holder of the note, and in this State the rule is well established that a person taking the transfer of a note upon or on account of a precedent debt is not a bona fide holder. 53 N. Y., 50; 65 id., 438. That the agreement as testified to by plaintiff might be construed as an agreement to take the note and extend the time of payment of the debt due him until the transferred note became due, with a view to the payment of the debt out of the proceeds; such an agreement, if in fact made, would constitute a new consideration for the transfer and render plaintiff a bona fide holder of the note with a right to proceed and collect it, and if the wife was in fact the owner at and before the transfer she might treat plaintiff as a trustee for herself so far as relates to the proceeds of the note beyond the amount due him from her husband, 40 Barb., 369; 43 id., 379; but in view of the relation of plaintiff as such to the action, the credibility of plaintiff's testimony was one for the jury, and the question was one of fact for the jury to determine upon the evidence, which was sufficient to support a verdict for plaintiff if they found that such an agreement was made. The court, however, disposed of the question as one of law and refused the request to submit it to the jury. This was error, and for this error the judgment should be reversed and a new trial granted, costs to abide event. |