Bryce v. Joynt.

the time they are negotiated or transferred, it being considered that parties to accommodation paper hold themselves out to the public by their signatures, to be bound to every person who shall take the same for value, the same as if it were paid to themselves. And the fact that the purchaser knew that the paper was so drawn, indorsed, or accepted for accommodation, does not weaken his position. 9 Ex. 690. But inasmuch as the decisions in the United States do not uniformly follow the English rule, and as the facts of the case at bar do not demand a decision of the question, we express no opinion with respect to this last point.

Judgment and order affirmed.

Affirmed. Ross, J., concurred; MCKEE, J., concurred in the judgment.

To prove a partnership the partnership-books alone are not competent evidence, but in connection with evidence tending to prove the partnership and access to and knowledge of the books, are competent.

Chickering & Thomas and Wm. M. Pierson, for respondents.

MCKEE, J. In this case the only issue raised by the impleadings involved the question: Whether Oren Joynt, the appellant, was at the dates of the transactions in controversy a copartner with the other defendants in the firm of Hubard Ward & Company. The transactions with the company took place in March, 1877.

At the trial of the issue, after evidence had been given on behalf of the plaintiffs, tending to prove that on the first of March, 1876, Oren Joynt, George C. Joynt and Hubard Ward formed a partnership, under the firm name of Hubard Ward & Co., and that in March, 1877, Oren Joynt was still a member of the firm and continued therein until the failure of the firm in the fall of 1877,

Bryce v. Joynt.

counsel for the plaintiffs proved the identity of the cash-book, journal and ledger of the firm, and in connection therewith gave evidence tending to prove that the defendant, during the years 1876-77, had had access to the books, and on several occasions had examined them and caused balance sheets to be taken from them and rendered to him. Upon that evidence the plaintiffs then offered some of the entries in the books and the books themselves as evidence, and over the objections of the defendant the court admitted them and the ruling is assigned as error.

In and of themselves the books were not admissible for the purpose of proving partnership. Until there was evidence of the fact, at the times of the entries on the books, the entries are to be regarded as res inter alios, mere declarations of a third person, not made under oath, which are not binding and are inadmissible to prove the fact. Partnership, like agency, must be proved by evidence aliunde. But when there is such evidence, sufficient in the judgment of the court to lay the foundation for the admission of corroborative evidence, then the books and the entries therein may be admitted as the acts and declarations of parties between whom such a relationship exists. Abbott v. Pearson, 130 Mass. 191; Robins v. Warde, 111 id. 244; McNeill's Ex'rs v. Reynolds, 9 Ala. 313.

The case of Hale v. Brennan, 23 Cal. 512, like the case in hand, involved a question of partnership, i. ., whether there existed, between the plaintiff and the testator of the defendant in the case, a copartnership in the business of keeping a hotel. At the trial it was admitted that the plaintiff was owner of one-half of the hotel; evidence was also given tending to prove that the business had been carried on and the books kept in the name of the "Santa Cruz Hotel;" that the entries in the books had been made by the testator and the clerk of the hotel, and that after the death of the testator the plaintiff had taken possession of the books. Upon that proof the books were offered and admitted in evidence, and it was held they were properly admitted. "They may," say the court, "have offered very little evidence upon the main question; * but if they afforded any they were admissible."

[Minor matters omitted.]

Judgment and order affirmed.

Judgment affirmed.

MCKINSTRY and Ross, JJ., concur.

▲ business sign with a row of beer barrels painted on it, with the letters “P. B." on the heads, the words "Depot of the Celebrated" above, and the words "Philadelphia Beer" below, cannot be protected as a trade mark per se.*

A

CTION for violation of a trade-mark. The opinion states the case. The defendant had judgment below.

John H. Dickinson, for appellant. .

William Leviston and T. D. Riordan, for respondent.

PER CURIAM. The action is to recover damages for a violation of the plaintiff's alleged trade-mark, and to restrain the use of it by the defendant in the future. The sufficiency of the complaint is the question for consideration. According to its averments the plaintiff is engaged in conducting a saloon business in the city and county of San Francisco, particularly for the sale of a certain kind of beer known as Philadelphia beer; and what he seeks to protect as a trade-mark, and which is used by him as a sign over the doors of his place of business, and as a label for the beer bottled by him, consists of a row of beer barrels so painted upon the sign and printed upon the labels as to show the top-head and outline of each barrel, with the letters "P. B." indicating and standing for Philadelphia beer, stamped or printed upon the head of each barrel, together with the words "Depot of the Celebrated" over, and the words "Philadelphia Lager Beer" below the row of barrels. The act of the defendant complained of is the erection by hím over his place of business of a sign similar to that of the plaintiff, the chief difference being the insertion of the letters "F. B.," indicating and standing for "Fredericksburger beer," in lieu of the letters "P. B.," and the insertion of the word "Fredericksburger" where the word "Philadelphia" appears on the sign and label of the plaintiff.

*See note and references, 47 Am. Rep. 648; Desmond's Appeal, post

Eggers v. Hink.

The object of a trade-mark is to indicate by its own meaning, or by association, the origin or ownership of the article to which it is applied. Section 991 of our Civil Code provides:

"One who produces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trademark, any form, symbol, or name, which has not been so appropriated by another, to designate the origin or ownership thereof, but he cannot exclusively appropriate any designation, or part of a designation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on." And by section 3196 of the Political Code it is declared:

"The phrase 'trade-mark' as used in this chapter includes every description of word, letter, device, emblem, stamp, imprint, brand printed ticket, label or wrapper, usually affixed by any mechanic, manufacturer, druggist, merchant or tradesman, to denote any goods to be imported, manufactured, produced, compounded, or sold by him, other than any name, word, or expression generally denoting any goods to be of some particular class or description. We do not perceive that either the letters or words upon the plaintiff's sign or label, or the device as a whole, in any manner indicated origin or ownership. A sign placed over a man's place

of business with a row of beer barrels painted on it would indicate that he sold beer; the letters "P. B." stamped on the head of the barrels, and the words "Depot of the Celebrated" placed above, and the words " Philadelphia Beer" placed below the row of barrels, would indicate that he sold Philadelphia beer. It does not appear that the plaintiff is the manufacturer of the Philadelphia beer or the sole agent for its sale. For ought that appears any one else has as much right to sell Philadelphia beer as the plaintiff. In our opinion the sign and label of the plaintiff relates only to the description of the beverage dealt in by him, and therefore cannot be protected as a trade-mark.

VOL. LXIX-13

Judgment affirmed.

City and County of San Francisco v. Central Pacific Railroad Company.

CITY AND COUNTY OF SAN FRANCISCO V. CENTRAL PACIFIC RAILROAD COMPANY.

(63 Cal. 467.)

Constitutional law — construction

roadway, roadbed.”

Steamers used by a railroad company in transporting freight cars across water intervening between the termini of the tracks are not taxable as a part of the "roadway" or roadbed."

THORNTON, J. The decision in this case is as follows: "First. That the assessments mentioned in the complaint in said action were made in due form, and at the proper time, by the assessor of the city and county of San Francisco; and all the forms of law in relation to the assessment of property for taxation in said county have been complied with on the part of said assessor.

"Second. That the defendant is a corporation existing under the laws of the United States, and of this State, and as such is now, and for many years last past has been, the owner of a line of railroad known as the Central Pacific railroad, extending from a point in the city of San Francisco, in the State of California, to Ogden, in the Territory of Utah; that the length of said road in the city and county of San Francisco is four miles from a point within said city to the eastern shore of the southern arm of the bay of San Francisco; that from said point on the eastern shore of the bay of San Francisco, to a point on the western shore of said bay, where the railway of defendant again commences, is about twelve miles; that across said bay no line of railroad has been constructed; and freight and passengers carried upon said road are taken across said bay upon steam ferry-boats; that for more than four years last past, the defendant has owned and possessed the two steamers, to-wit, the Thoroughfare and Transit, mentioned in plaintiff's complaint; that said steamers now are, and ever have