tified that he sent the horse to Moore, with a bill of sale; that Moore sent him back to Dunning with the bill of sale, saying that as he had no other horse, he might keep him till he, Moore, should send for him. The court instructed the jury that according to the case of Hamilton v. Russell, unless possession accompanied a bill of sale it was a fraudulent transaction. Taking the ruling, the court, it may be presumed, also took the reasoning, in the case of Hamilton v. Russell. The case before it warranted a finding of fraud, because the return of the bill of sale indicated a sham transaction, and if it were not such, the transaction was of a kind which the policy of the law would condemn, as being of a nature irreconcilable with propriety or good faith. The court did not say, nor from any thing the case discloses, did it intend to say that possession of itself is conclusive evidence, no matter what the other circumstances, of fraud. That would have been inconsistent with what it had previously ruled in Reed v. Minor, and with what was ruled in Conard v. Atlantic Insurance Company.15

The case of Hamilton v. Franklin16 is too meagerly reported to furnish much light respecting the facts which there existed. There appeared to be a continued possession of a slave after a sale by the party, until he again sold the same to a good faith purchaser. The bill of sale was recorded. There the possession, long continued, of a slave, and a sale thereof to a bona fide purchaser, were elements which doubtless weighed with the court, to hold, despite the fact of recording, that possession in the case was fraudulent. The language of the court in this case seems to warrant the position claimed, that possession is conclusive evidence of fraud, but as that is inconsistent with what the same court had previously ruled in Reed v. Minor, and with what was said in Brooks v. Marbury and Conard v. Atlantic Ins. Co., it would seem to be most reasonable to hold that the court had only reference to the case then before it. In any event that is the proper view to be taken, if the case is to have any weight as an authority. The remarks last offered also apply to the language of Story J., who delivered

15 Travers v. Ramsey, 3 Id. 354, may be taken with the same qualifications as Moore v. Ringgold. 164 Cranch, C. C. 729.

the opinion in Meeker v. Wilson. 17 There the learned judge expressed himself antagonistic to the view herein maintained, but without any proper consideration of the decisions on the question, and when the cause itself did not call for the expression. In perfect accord with the view herein advanced is the wellconsidered case of D'Wolf v. Harris, 18 in which Story, J., delivered the opinion. He said: "The general rule, upon transfers of personal property, is, that possession should accompany and follow the deed. But if, by the term of the contract itself, or by necessary implications, the parties agree, that the possession shall remain in the vendor, such possession is consistent with the deed, and does not avoid its operation in point of law, unless it be in fact fraudulent." In Phettiplace v. Sayles19 Story J., distinguished between real and personal property, respecting the effect of possession, and said: "But possession, after a sale of real estate, does not per se raise a presumption of fraud." "Posses

sion is not here deemed evidence of ownership. The laws of most civilized nations require solemn instruments to pass the title to real property; and in Rhode Island, as in most of the States of the Union, a deed executed with due formalities, and acknowledged before a magistrate, and recorded in the public registry, is indispensible to make a perfect transfer of real estate. The public look not so much to the possession as to the public records, as proofs of the title to such property. The possession, therefore, must be inconsistent with the sale, and repugnant to it in terms or operation, before it raises a just presumption of fraud." These remarks do not, however, furnish us with a full and accurate criterion. For, as fraud must be proved, and as the absence of a record often happens, where a deed or mortgage has been made and not recorded, and actual notice will bind subsequent purchasers, mortgagees and creditors, we can not, speaking accurately, say that absence of possession and of a record of the conveyance of either real or personal property are always presumptive or even evidence of fraud, for deeds are frequently made which are intended to and do, in equity,

17 1 Gallison, 419, 423. 18 4 Mason, 515, et seq. 194 Mason, C. C. 312, 322.

serve only as mortgages, and possession remains, until a given period understood between the parties, in the grantor, notwithstanding which the transaction is sustained, as being in perfect accord with good faith. In re Cantrell, 20 and re Manly21 the courts took positions not inconsistent with the views herein advanced.

If the cases cited prove anything they prove this, that possession is not necessarily either conclusive or prima facie evidence of fraud.22 To speak of possession as being in itself even prima facie evidence of fraud is misleading and improper. Mere possession will not prove fraud, even in respect of personal property; it may be evidence of ownership of personal property, but, as was remarked by Judge Story in Phettiplace v. Sayles, hardly of real estate. There must be accompanying circumstances attending the possession, or as it were coloring it. But possession is always open to explanation. The correct formulation of the law relating to the subject under discussion, in view of the authorities considered, and of all the authorities, when considered aright, is: Possession is a link in a chain of circumstances, pertinent in proving fraud, having greater or less weight according to the circumstances of each case. We are not now inquiring what testimony is admissible to explain possession; that is another question. There may be cases where possession and the surrounding circumstances may indicate a transaction so contrary to public policy that no further testimony of actual intent would be admitted; that, however, relates to the relevancy of testimony. So there may be cases where the evidence indicate may the possession to be a strong, and even unanswerable, circumstance, conclusively indicating fraud. Here, if the case is before a jury, it becomes the province of the court to instruct the jury, hypothetically, respecting the legal effect of such a possession, or, according to the view of some courts, to take the case from the jury by a peremptory instruction to find for a given side. Or, if the court tried the case, the court would apply the law to fit the circumstances of the given case. In

20 4 Ben. 482.

21 2 Bond, 261.

See the remarks in Phettiplace v. Sayles, ante.

short, whether a given transaction is fraudulent is a question of mixed law and fact, in which possession is a circumstance of more or less weight.

A MAN AND HIS NAME. II.

When a name has once been turned into a trade

mark, and a proprietary right acquired therein, this right in the name is capable of protection, even after it has passed away from the person to whom it originally belonged. Thus within the last few weeks the Court of Appeal decided in Massam v. Thorley s Cattle Food Company, 10 Cent. L. J. 211, that the executors of the originator of "Thorley's Cattle Food" were entitled to restrain the use of the name by a company formed for the purpose of manufacturing a similar article, thus practically overruling James v. James, 20 W. R. 434, L. R. 13 Eq. 421. And the same is the case when what has happened is, not the death of the proprietor, but an assignment of the business, carrying with it the right to use the trade-marks, in which a trade-mark consisting of a name, but which has ceased to possess a personal significance, would be included, "A name, though originally the name of the first maker, may, in time, become a mere trade-mark or sign of quality, and cease to denote, or to be current as indicating, that any particular person is the maker. In many cases a name once affixed to a manufactured article continues to be used for generations after the death of the individual who first affixed it. In such cases the name is accepted in the market either as a brand of quality, or it becomes the denomination of the commodity itself, and is no longer a representation that the article is the manufacture of any particular person." Per Lord Westbury in Hall v. Barrows, 12 W. R. 322, 4 DeG. J. & S. 150; Leather Cloth Company v. American Leather Cloth Company, 12 W. R. 289, 4 DeG. J. & S. 144. But it must not be forgotten that the assignability of a name trade-mark entirely depends upon the personal element having been wholly eliminated. Leather Cloth Company's Case, supra, and also in House of Lords, 13 W. R. 873, 11 H. L. C. 523; Bury v. Bedford, 12 W. R. 726, 4 De G. J. & S. 352. Thus, when the founder of a theatre, which he had called after his own name, "Booth's Theatre," and which he had described by that name in various mortgages of the premises, sought to restrain the assignees of the lease of the premises from continuing to call the theatre by that name, the injunction was refused, on the ground that the name had become the name of the establishment, and had ceased to imply any personal interference of the plaintiff. Booth v. Jarrett, 52 How. Pr. 169.

This question of the assignability of name trademarks and of trade-names-which, since the decision of the House of Lords in Singer Manufacturing Company v. Wilson, 26 W. R. 664, L. R. 3 App. Cas. 376, (see 3 Cent. L. J. 706), must be

taken to be pretty much the same thing-has most frequently come up in cases of disputes between persons who have, at some time or other, filled the position of co-partners. Both in England and in America the extent to which a purchaser of a business, or a partner who has acquired his partner's share in the business they have carried on together, acquires with the business or share in the business the right to continue to use, by way of trade-name or trade-mark, the name of the person from whom he has acquired the business or share therein, has been the subject of considerable difference of opinion. By some judges it has been thought that no right in the name passed with the good will (Peterson v. Humphrey, 4 Abb. Pr. 394; Howe v. Searing, 10 Id. 264; Scott v. Rowland, 20 W. R. 508); and in one American case (Reeves v. Denicke, 12 Abb. Pr. N. S. 92), the judge even went so far as to decide that a person who had bought out a partner named E. H. Reeves was not entitled to describe his new firm as successor to the old one, thus: "Robert C. Reeves, successor to E. H. Reeves & Co." No other case, however, goes nearly as far as this; and on the whole, the authorities in favor of the right of continuing to use the name appear considerably to predominate. In Churton v. Douglas, 7 W. R. 365, Lord Hatherly pointed out most clearly the importance of the trade-name as an element of the good-will, and long before this time Lord Thurlow had held that surviving partners could not be restrained from continuing to use the name of their deceased partner in their business, at all events unless his estate would be thereby involved in some liability. Webster v. Webster, 3 Swanst. 490. In Banks v. Gibson, 13 W. R. 1012, 34 Beav. 566, where the plaintiff was the widow of one of the partners in Banks & Co., and the defendant was the surviving partner, Lord Romilly held that as the partnership had been simply dissolved, and neither partner had bought the other out, each could use the old firm name. He said, "The name or style of the firm of Banks & Co.' in which the defendant had been engaged for a period of fourteen years, was an asset of the partnership, and if the whole concern and the good will of a business have been sold, the name, as a trade-mark, would have been sold with it. If by arrangement one partner takes the whole concern, there must be a valuation of the whole, including the name or style of the firm. But if the partners merely divide the other partnership assets, then each is at liberty to use the name just as they did before. It is the same as if two persons who alone carried on the business of "Child & Co.,' thought fit to separate, each would be entitled to use the name by which they carried on their business." Then, again, in McGowan Bros. Pump Machine Company v. McGowan, 2 Cin. 313, it was said in the Superior Court of Cincinnati that there can be no doubt that where one partner sells to another partner a going business, every advantage arising from the fact of the sole ownership of the premises, stock and establishment, including advantages acquired by the old firm in carrying on its business, whether con

nected with the old place or the old name, passes to the purchaser." Lastly, in Levy v. Walker, already cited, it was held that one of two partners who had bought the other partner's interest in the business, was entitled to use the old firm name, in which the names of both partners appeared, and Lord Justice James said distinctly: "I hold that the sale of the goodwill and business did convey the right to the use of the partnership name as a description of the articles sold in that trade, and that that right is an exclusive right as against the person who sold it, and as against all the world, if any person in that world were representing himself as carrying on the same business." Where the purchase has been from a trustee in bankruptcy, it has been held in the Supreme Court of New York (Helmbold v. Helmbold Manufacturing Company, 53 How. Pr. 453) that there is a difference, and that the bankrupt could not be deprived of the right to use his name, though he might have been if the purchase had been from himself; but in Bury v. Bedford no such distinction was recognized.

Of course, when a man has given another a contract right to use his name, he is not entitled to complain if the latter exercises his privilege, as in Ward v. Beeton, 23 W. R. 533, L. R. 9 Eq. 207, where an annual, in which Beeton had had no hand, was allowed to be published under the name of Beeton's Christmas Annual; and where the proprietor of a trade-name or trade-mark goes into partnership with some one else, he carries the trade-name or trade-mark into the partnership with him, as in Coniy v. Mitchell, 26 W. R. 269. It is not with business pursuits in the ordinary sense exclusively that the name claimed must have been connected. In Lord Byron v. Johnston, 2 Mer. 29, the name protected was the name of a poet; in Archbold v. Sweet, 1 M. & Rob. 162, It was the name of an author of legal works; in Christy v. Murphy, 12 How. Pr. 77, and Montague v. Moore, Wood, V. C. March 1, 1865, it was the name of the organizer of a troupe of Ethiopian minstrels. Nor does it make any difference whether the name is a genuine or an assumed one. In Isaacson v. Thompson, 20 W. R. 196, the plaintiff, a milliner, was carrying on business as "Madame Louise;" in Clemens v. Such, N. Y. Supreme Court, July 11, 1873, the plaintiff had written humorous books under the nom de plume of Mark Twain." But whether the name be real or fictitious, the use by the defendant must be such as to be calculated to deceive, so that, where no deception is to be anticipated, no relief will be. granted, as in the case of "Claribel's" songs, Barnard v. Pillow, W. N. 1868, p. 94. In Gouraud v. Trust. 10 N. Y. (S. C.) 627, the plaintiff had changed his name from Trust to Gouraud, under which name he sold "Gouraud's Oriental Cream," and the defendants, who were restrained by injunction, were his sons, who had retained their original name, but had begun to sell a preparation as "Creme Orientale, by Dr. T. F. Gouraud's Sons." And in. such cases as the above the fraudulent use of another's name is criminally punishable, either on a prosecution for false pre

tences or on one for a cheat at common law; but such an offense is not forgery, as was decided in the case of the name of the painter Linnell. R. v. Closs, D. & B. 460.

Even apart from a trade or business, a person whose name has without authority been injuriously used by another is entitled to an injunction, as in Routh v. Webster, 10 Beav. 561; and, even though what the defendant has done amounts to a libel, it seems that, if he does not exercise his right of claiming a jury at the proper time, but allows that opportunity to slip, he will not be allowed afterwards to contend successfully that the court has no jurisdiction under the Judicature Acts to grant an injunction to restrain a libel without the verdict of a jury. Massam v. Thorley's Cattle Food Company. supra; Thomas v. Williams, supra. In Reid v. Sibbald, 18 Journ. of Jurisp. 392, the Scotch count granted an interdict to restrain a name intended to represent the name of a sheriff's officer from being used in such a manner as to bring discredit and ridicule upon the latter, who would thus be injured in his position in life; and it seems, from the decisions referred to, that in a similar case the English court would now sit as a jury and grant an injunction at the hearing of the action, unless the defendant claimed a jury at the proper time and in the proper manner indicated by the acts and rules governing the practice of the court.

ACTION-PRIVITY OF CONTRACT NECESSARY TO SUPPORT.

DAVIS v. CLINTON WATER WORKS CO.

Supreme Court of Iowa, June, 1880.

A entered into a contract with the City of C to supply water to be used by the city in extinguishing fires. Through the neglect of A in supplying sufficient water, the property of B, in said city, was entirely destroyed by fire. Held, that B had no right of action against A.

Appeal from Clinton Circuit Court.

Action at law to recover the value of certain buildings destroyed by fire, upon the ground that defendant was bound by contract with the City of Clinton to supply water to be used in extinguishing fires, and failed to perform its obligation in this respect, which resulted in the destruction of plaintiff's property. A demurrer to the petition was overruled, and defendant appeals from the decision upon the demurrer.

E. S. Bailey and Wright, Gatch & Wright, for 'appellant. J. S. Darling and A. R. Cotton, for appellee.

BECK, J. delivered the opinion of the court:

The petition alleges that the defendant entered into a contract with the City of Clinton to supply water to be used by the city for the purpe of extinguishing fires. The contract is embodied in an ordinance passed by the city authorizing defendant to establish its works for supplying water

to the city, and providing for compensation to be paid defendant by the city for water furnished for public purposes, including the extinguishing of fires. The terms and conditions of this contract need not be recited. It is sufficient to state that the parties thereto were the city and the defendant, and the plaintiff in this case in no sense was a party to the contract. The power of the city to pass the ordinance and enter into the contract is not questioned. The petition alleges that a fire occurred in certain store-rooms owned by plaintiff in the city, and they were entirely consumed, for the reason that the necessary supply of water was not furnished by defendant, and a sufficient pressure of water was not found at the hydrants contiguous to the buildings, which was caused by defective machinery and the negligence of defendant's servants, all of which was in violation of defendant's contract under said ordinance of the city. A demurrer to the petition was overruled.

on.

The only question presented in the case is this one: Is the defendant liable to plaintiff upon the contract embodied in the ordinance? The petition does not allege or show any privity of contract between plaintiff and defendant. The plaintiff is a stranger, and the mere fact that she may find benefits therefrom, by the protection of her property, in common with all other persons whose property is similarly situated, does not make her a party to the contract or create a privity between her and defendant. It is a rule of law, familiar to the profession, that a privity of contract must exist between the parties to an action upon a contract. One whom the law regards as a stranger to the contract can not maintain an action thereThe rule is founded upon the plainest reasons. The contracting parties control all interests, and are entitled to all rights secured by the contract. If mere strangers may enforce the contract by actions, on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon. Exceptions to this rule exist, which must not be regarded as abrogating the rule itself. Thus, if one, under a contract, received goods or property to which another, not a party to the contract, is entitled, he may maintain an action therefor. So, the sole beneficiary of a contract may maintain an action to recover property or money to which he is entitled thereunder. In these cases the law implies a promise on the part of the one holding the money or property to account therefor to the beneficiary. Other exceptions to the rule, resting upon similar principles, may exist. See National Bank v. Grand Lodge, 98 U. S. 123, 8 Cent. L. J. 71.

The case before us is not an exception to the rule we have stated. The city, in exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she receives just as she does

other benefits from the municipal government, as benefits enjoyed on account of improved streets, peace and order enforced by police regulations, and the like. It can not be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damages sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city, and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government. They can not hold such officers and agents liable upon the contracts between them and the city. These views and conclusions are supported by the following authorities: Atkinson v. Newcastle etc. Water Co., L. R. 2 Ex. Div. 441; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; Vrooman v. Turner, 69 N. Y. 280; Wharton on Negligence, §§ 438, 439, 440; Shearman and Redfield on Negligence, § 54. The cases cited by counsel for plaintiff, we think, are not in conflict with the view we have above expressed.

Counsel for defendant base an argument upon the position that the city itself would not be liable to defendant in case it owned and operated the water-works. They argue that the defendant, therefore, would not be liable to plaintiff. We find it unnecessary to consider the argument, or the premise upon which it is based. We are content to rest our conclusion upon the grounds and arguments we have attempted to present.

The circuit court erred in overruling the demurrer to plaintiff's petition. Its judgment is, therefore, reversed.

CONTRACT FOR FANCY SIGNS-DISCRETION GIVEN TO DESIGNER.

THOUBBORON v. LEWIS.

Supreme Court of Michigan, June, 1880.

A, a baker in Detroit, ordered of B, an ornamental sign painter in New York, a quantity of show cards. The contract was entered into by correspondence, and in one of his letters A enclosed a sketch of what he wanted, which among other things contained a shield with the word "established" on one side of it and the figures "1875" on the other. The letter stated that A wanted "something of this style," referring to the sketch, and concluded by saying, "Give us a clean, neat label." The cards were completed and forwarded to A, who refused to receive them, for the reason that the word "established" and the figures "1875" were placed at the top instead of in the position indicated by the sketch. Held,that the contract gave B a discretion as to the artistic arrangement of the figures, and that A's refusal to accept could not be sustained.

Error to Detroit.

James O'Brien and John Atkinson, for plaintiff in error; H. A. Harmon and H. A. Chaney, for defendants in error.

GRAVES, J., delivered the opinion of the court: The defendants, who are bakers in Detroit, refused to accept and pay for a quantity of fancy signs made for them by the plaintiff, an ornamental sign painter in New York. The negotiation between the parties was carried on by correspondence. The defendants, under date of April 12, 1879, wrote for samples of show cards about the size and style of Hathaway & Son's "Gloss Polish" card, with black ground and red letters, leaving out the picture and putting in "plain, bold letters." The plaintiff replied under date of the 14th, and enclosed a sample of signs just made for a coffee-house, and observed that he could design for defendant's trade, and finish up in the style of the coffee-house sign, at certain rates specified.

The defendants, under date of the 17th, sent a rough plan which they desired the plaintiff to sketch for them and return as soon as possible, when, as was added, "we will send you order for same," and the plaintiff thereupon drew a pencil sketch and sent it on the 21st. On receipt of this the defendants wrote, on the 28th," Enclosed we return you sketch for label with the words Established 1875' added," and on inspecting the sketch the word "established" appeared in written characters on one side of the shield and figures "1875" on the other. The communication proceeded as follows: "We would like to have our name and crackers a little more prominent; that is, have the letters shaded, so that they will stand out bold and distinct, viz. (giving a pen and ink illustration of the style of letter meant), or something of that style. Please advise us when we may expect them. Give us a clean, neat label."

The plaintiff replied May 1st that he would make the alteration required and get the signs out without delay, and suggested that it would take about two weeks. A week later the defendants wrote that they had been told that some show signs faded soon, and they desired him to use a color which would not fade by exposure to the sun, and nearly a week thereafter they wrote again that a person whom they named was then at work on a show card for certain establishments which were competitors of defendants, and they observed: "We want something that will beat theirs. C. (the person getting up the other card) said yours would all fade out in a short time." The plaintiff, five days later, forwarded from New York to defendants 1,013 of the signs, and on their arrival at Detroit the defendants refused to accept them, and among the grounds of their refusal the most material was that the word "established" and the figures "1875" were placed at the top instead of being put in the positions where they were noted on the sketch by defendants. The plaintiff then brought this action for the price, and the jury, under a charge which in substance required them to find for defendants, unless, in their judgment, the defendants left the placing of the new matter before mentioned to the plaintiff's discretion, returned their verdict in the defendants' favor.

The essential question is whether the learned judge, in leaving this point to the jury, and they