at a time when no particular question indicating what was sought to be elicited was before the court for determination.

2. It is contended that the testimony of the witnesses Jones, Tackey, and Day in relation to letters received was incompetent, and the admission of such letters improper. It is difficult from the brief to make out what precisely is the point relied upon. Turning to the assignment of error bearing on Jones' testimony, we find that error is assigned in admitting the testimony of Jones that "he took out of the post-office box of the Boston Piano & Organ Company at Coshocton, Ohio, a letter addressed to Boston Piano & Organ Company, and signed 'F. A. Booth'; that the envelope was postmarked Rochester, N. Y.; that it was stamped with the postoffice stamp in the regular way; that the stamp consisted of black marks." Turning to the record, we find that the witness produced the letter referred to, and testified that it was taken by him from the post-office box of the piano company, inclosed in an envelope; that (for reasons which he explained) he examined the envelope carefully, and, after taking the letter out, destroyed the envelope. The objections interposed were that the testimony was "not the best evidence, improper, incompetent, no evidence that it was ever deposited in the mail by defendant, no evidence that any post-office department had ever placed any postmark upon the letter." They were overruled, and exception reserved. Of course, additional evidence would be required to warrant a finding that the defendant deposited the letter in the mail, but it is difficult to understand upon what theory it could be held that the letter was not admissible, nor why the witness should not be allowed to describe the appearance and state the contents of a document (the envelope) which was lost or destroyed. The brief discloses no sound reason for the exclusion of this testimony, or of the testimony as to other letters and envelopes referred to under this point.

3. It is contended that the reception in evidence of the judgment roll in the action of Moline Pump Company against F. A. Booth was immaterial to the issue, and was improper, in that it was a violation of the fifth amendment of the Constitution of the United States and section 860, Rev. St. U. S. [U. S. Comp. St. 1901, p. 661]. Reference to the statement of facts, supra, will sufficiently indicate the materiality of the testimony. The other objections were not interposed when the proof was offered and admitted, the only exception reserved being "as immaterial, incompetent, improper." Other objections not then reserved cannot now be considered. An objection based on the Constitution and on a provision of the Code. of Civil Procedure of the state of New York protecting persons from having testimony given by them upon supplementary proceedings used against them in a criminal proceeding was interposed to a question put to the lawyer who had entered the judgment referred to. It is of no moment, because no evidence was given or offered of any testimony elicited upon supplementary proceeding. All that was shown was that Booth had been examined in such a proceeding, and that the judgment was still unsatisfied.

4. It is contended that it was error to admit a letter head of a

firm known as "Booth Bros.," which had been in business for many years at Rochester, N. Y., the place named in defendant's letter heads. The Booth Bros. letter head reads: "Booth Bros., Shoe Machinery Manufacturers. Beading Machines a Specialty." We are unable to discover how this piece of evidence was in any way relevant or material towards establishing the issue that defendant had (by the use of his letter heads) pretended that he was engaged in a variety of businesses, when in fact he was not so engaged. It was manifestly error to admit it under the pleadings. And we cannot satisfy ourselves that such error was not prejudicial to defendant. The Booth Bros. heading had a tendency, however slight, to indicate an intention on defendant's part so to devise his letter head as to induce a person reading it to think that he was in some way connected with a concern bearing the same name "Booth," and engaged in the shoe machinery business in Rochester; which concern, as the evidence showed, had a good rating in Dun's Commercial Register. But no such fraudulent intent was charged against him in the indictment, and he came into court to try no such issue. Evidence tending to establish a different sort of fraud from that charged in the indictment was immaterial, and should have been. excluded.

We think also that it was error to admit in evidence, apparently solely because it was found in defendant's office, a long typewritten list of names of firms and individuals, with amounts following their names, the list being headed with the word "Firms who want their money" written in pencil, and not shown to be in the handwriting of defendant. In the absence of any proof of handwriting, it could not be received as an admission of defendant; nor was it in any sense proof of the ordering or of the receipt of goods, or of their resale, or of failure to pay for the same. A like exception (incompetent and immaterial), which was reserved to nine packages of papers, not printed in the record, but said to contain bills and accounts, not receipted, from many dealers throughout the United States, is well taken. Presumably they were offered to show that defendant had ordered and obtained several thousand dollars worth of merchandise which he had not paid for; but they were not competent evidence to prove such fact. If the government thought it at all important to strengthen its case by si.owing that, in addition to the instances covered by the indictments, defendant had on many other occasions obtained and disposed of goods in the same way without paying for them, it might have established that fact by proof similar to that already introduced in the case of the Moline Machine Company, the piano company, and the oil company. The error must have been prejudicial to defendant. It must have helped to induce a belief in the jury's mind that defendant had carried on the same scheme in scores of instances, to the extent of thousands of dollars. Indeed, it is one of the assignments of error that in his summing up the District Attorney, holding the typewritten list in his hand, said to the jury, "If the defendant had paid any of these people, why had he not scratched their names from this list?"

Inasmuch as these errors in the admission of evidence require a

reversal it is unnecessary to consider any errors assigned for refusals to charge as requested. Defendant's counsel submits the point that the proof does not correspond to the facts set forth in the indictments, for the reason that all the acts specified in the indicments were committed at Stanley, N. Y., while the proof shows that at the time the acts were alleged to have been committed the defendant resided in Rochester, N. Y. What defendant's residence has to do with the offense charged we are wholly at a loss to conceive. The brief presents neither argument nor authority to support this point.

The judgment is reversed, and cause remanded for a new trial.

VON FABER-CASTELL V. FABER.

(Circuit Court of Appeals, Second Circuit. June 28, 1905.)

No. 180.

1. UNFAIR COMPETITION-FRAUDULENT USE OF NAME.

Defendants, having the undisputed right to use the name "Eberhard Faber" on their goods, are not chargeable with fraud constituting unfair competition because of the use of the name "E. Faber."

[Ed. Note.--For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 75, 84.

Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]

2. SAME-SUIT TO RESTRAIN-RIGHTS GOVERNED BY CONTRACT.

*

The parties entered into a contract to settle their respective rights with respect to the use of the name "Faber" on lead pencils made and sold by them, which provided that "the firm of Eberhard Faber [defendant] binds itself to stamp all manufactures connected with lead pencils * * not without first name, or at least with the initials of the first name." Defendant afterward used the name "E. Faber" on its goods as it had previously done. Held, that the use of such name was not in violation of the contract, but, even if so, the remedy of complainant was by a suit for its enforcement, or an action to recover damages for its breach, and that he could not ignore the contract and maintain a suit for unfair competition. Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 124 Fed. 603.

This is an appeal by the defendant from a decree of the Circuit Court for the Southern District of New York, entered July 19, 1904. The decree is for an injunction and an accounting and enjoins the defendant from using the name "Faber" in connection with the manufacture and sale of pencils and stationers' rubber goods unless prefixed by his Christian name "Eberhard,” “J. Eberhard" or "John E." The facts are carefully collected in the opinion of the Circuit Court (124 Fed. 603), and need not be repeated here.

Charles T. Haviland and Benjamin F. Tracy, for appellant.
F. W. Hinrichs, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. The bill was filed to restrain unfair competition in trade. The entire controversy centers about the right of the defendant to use the name "E. Faber" in connection

139 F.-17

with the business of making and selling lead pencils. The right to use his full name, "Eberhard Faber," is not now disputed; the decree of the Circuit Court permits such use and the complainant has not appealed. Neither does the complainant deny the right of the defendant to use the name "E. Faber" in connection with penholders made by him.

When it is realized that the principal accusation against the defendant is that he prefixed his surname with "E." instead of "Eberhard" it will be seen that the charge of fraud rests upon an exceedingly narrow and insecure foundation. In the recent case of Howe Co. v. Wyckoff (decided April 24, 1905) 25 Sup. Ct. 609, 49 L. Ed., the Supreme Court has reasserted and reaffirmed in clear and unequivocal language the right of everv man to use his own name in all legitimate ways.

For reasons hereafter stated we are of the opinion that this action cannot be maintained as one to restrain unfair competition, but, assuming that it can be, the evidence fails to establish fraud on the part of the defendant, and fraud is the foundation of such an action. He may use the name "Eberhard Faber" indiscriminately in his business, he may use the name "E. Faber" in connection with part of the articles manufactured and sold by him, but the moment he uses "E. Faber" in the sale of lead pencils he commits a fraud on the complainant and the public. This is the proposition, but the evidence fails to sustain it. We are unable to say that the defendant used the initial of his Christian name, rather than the name in full, with a fraudulent intent, or that he has reaped any unfair advantage therefrom or that the public has been deceived thereby. The controversy, in so far as it is based upon a distinction so attenuated, seems to us inconsequential. We find the testimony quite insufficient to warrant the finding of a fraudulent purpose in the substitution of the initial of the name for the name itself. If the use of "Eberhard" be honest the use of "E." cannot be fraudulent. But the action cannot, in any view, be maintained as one for unfair competition.

On the 16th of March, 1898, the parties entered into an agreement settling their more important differences and, among them, the controversy which is the subject of this action. Paragraph 5 is as follows:

"The firm of Eberhard Faber binds itself to stamp all manufactures connected with lead pencils traceable to its establishment, not without first name, or at least with the initials of the first name, and under all circumstances to avoid anything which could tend to confusion as to the manufactures of the two firms."

If, then, the defendant has complied with the terms of this contract no action of any kind will lie against him. If he has broken the contract the complainant's remedy is twofold-either in equity for specific performance or at law for damages for the breach. The present action is neither.

It is said that the contract was originally written in German and that the word translated "initials" should have been translated "initial," but the court is not sufficiently versed in the intricacies of the

German language to determine this question. We think, however, that irrespective of the alleged inaccuracy in translation the defendant fully complied with the contract when he stamped his manufactures "E. Faber." It will be observed that the contract was not between individuals but between firms-the firm of A. W. Faber on the one side and the firm of Eberhard Faber on the other. This distinction is pointedly emphasized in the last clause of the contract which provides that "this agreement shall have full validity only after Mr. John Eberhard Faber, as copartner of the firm of Eberhard Faber, shall have added his signature here below." The contract is signed: "A. W. Faber, Lothar W. Faber, Eberhard Faber." It is not, therefore, necessary to look beyond the contract to see that the firm of Eberhard Faber was composed of himself and Lothar W. Faber as copartners, that the covenants and agreements were made by the firms respectively and that when the defendant signed his name as copartner on behalf of the firm it was Eberhard Faber simply. What then is the fair construction of the contract?

"The firm of Eberhard Faber binds itself" to stamp all lead pencils and so on made by it "not without," namely, "with," its first name, or at least with the initials of its first name. The firm name was Eberhard Faber, the first name was Eberhard and the initial of the first name was E. When, therefore, the defendant stamped his goods "E. Faber" he was within the terms of his agreement. The language of the contract, due perhaps to the translation, is infelicitous and inexact, but any other interpretation leads to more serious complications. It can hardly be maintained that when the contract states explicitly that the firm binds itself, it meant that one member of the firm binds himself. If the firm agreed to stamp its goods with the name of but one of the partners, which partner was referred to? It is most improbable that it was intended that the names of both partners should be used for that would have required "Lothar W. Faber and Eberhard Faber" or "L. W. and E. Faber" to appear on each pencil-a most clumsy and inartistic mode of stamping. Moreover, if it were the purpose of the contract to provide for the use of the names of the partners rather than the name of the firm the words "first name" would not be twice repeated in the paragraph in question. It seems improbable that the partners. would have used the language of this paragraph if the complainant's contention be correct. There would have been no ambiguity if they had provided that "the firm of Eberhard Faber binds itself to stamp all its manufactures Eberhard Faber, J. Eberhard Faber, John E. Faber or J. E. Faber."

The fact that the defendant had for many years prior to the contract used the trade-name "E. Faber" and has consistently refused. to change it, together with the complainant's acquiescence in the use of such name after the contract, is in strong corroboration of the construction contended for by the defendant. We think this construction is sustained by the great preponderance of reasoning, but assume that it is not; how then stands the case? If the complainant's construction be correct he holds a contract whereby the defendant has promised and agreed not to use the name "E. Faber."