Sohier v. Johnson. sales of provisions or other merchandise, in which they may deal, upon a credit exceeding four months." After the death of William P. Winchester, the defendant continued the business alone until 1854, and after that with partners, using the firm name and trade-mark of "E. A. & W. Winchester," until 1867, when the firm became embarrassed and it was dissolved by the defendant. Since such dissolution the defendant has continued to manufacture soap and to use the trade-mark. In 1868, the executors and trustees under the will of William P. Winchester sold the manufactory at Cambridge with all the fixtures and utensils to Livermore. Upon these facts it may be conceded that in 1847 Winchester had a valuable property in the trade-mark which he might dispose of in connection with the business. But it was property of a peculiar character, closely resembling that which he had in the good will of the business, and we think that by the articles of partnership between Winchester and the defendant, the good will and the right to use the trade-mark passed to the new firm. The trade-mark, being the name of the new firm and an incident of the business of the firm, would pass by implication, there being nothing in the articles showing a different intention. Bury v. Bedford, 4 De G., J. & S. 352. It is true that by the first article if Winchester had elected during his lifetime to dissolve the partnership, the property of the firm, including the trade-mark, would have reverted to him. But while the firm continued the title was vested in it. He did not so elect, and this article becomes inoperative by his death. The death of Winchester worked a dissolution of the firm, and it may be that, if there had been no provision for the continuance of the business, the good will and the right to use the trade-mark would have vested in his legal representatives. But the sixth article of the partnership agree ment and the seventh article of the will make distinct provisions for the continuance of the business under the same firm name. Construing them together, it seems to us clear that both the good will of the business and the right to use the trade-mark, at the death of Winchester passed to the new firm. They both contem plated that a new firm was to be established with the right to con Sohier v. Johnson. tinue the business and to use the old name. The estate of Winchester was not to remain subject to the liabilities of a partner. His real estate in use by the firm at the time of his death, and his share of the personal property of the firm to a limited amount, were to be leased and lent to the new firm, which was to pay six per cent. upon their valuation. It is clear that Winchester did not regard the trade-mark as a part of his share of the personal property to be lent to the firm. It is not mentioned, and no provision is made for determining its value. The will contemplates the possibility that the new firm may continue the business without borrowing any of the personal property of the estate. They are to borrow, if they desire to do so; if the personal property is needed to pay bequests, the trustees cannot lend it to the firm; the trustees had a right to withdraw it at any time they deemed expedient and proper, and it was their duty to withdraw it if all the persons named in the will ceased to be members of the firm, or if the firm transacted any other than a "cash or short credit business." It cannot be supposed that the testator intended that the right to use the trade-mark could be withdrawn from the firm, and that the firm should go on using the old name of E. A. & W. Winchester, while a rival house had the exclusive right to use the same name as a trade-mark. The articles of copartnership and the will gave the new firm the right to continue the business and to use the old name; the effect was to convey to it by necessary implication the good will and the right to use the trade-mark. The trade-mark was the device or symbol used to identify the article manufactured, and the right to use it would pass with the business and good will as an incident, unless something appears to show a different intention of the parties. The plaintiffs contend that the trade-mark "was a property incident and attached the" Provision and Soap and Candle Establishment "at Cambridge; " but we do not think it can be regarded as a local trade-mark, attached as incident to the real estate at Cambridge. It is obvious that if the parties in interest had at any time seen fit to sell that real estate and continue the business at some other place, it would have had no effect upon the character or fitness or value of the trade-mark, but it would remain attached to the good will and business wherever carried on. Robins v. Warde. Upon the whole case we are of opinion that the plaintiffs can. not maintain this bill. They are entitled to the relief prayed for, only upon the ground that the trustees, as the legal representatives of Winchester, have the exclusive right to use this trademark. For seventeen years after the death of their testator the firm of which the defendant was a member owned and enjoyed the exclusive use of the trade-mark. We know of no principle by which upon the dissolution of that firm it reverted to and became the property of the estate of the testator. Bowman v. Floyd, 3 Allen, 76. We do not consider it necessary to decide whether this trademark is so far property that it could be sold, detached from the business in which it has been used, to a stranger, nor whether the defendant retained the right to use it after the dissolution of the firm in 1867. It is decisive of this case that the plaintiffs have no interest in it. Rogers v. Taintor, 97 Mass. 291. Emerson v. Badger, 101 Mass. 82. Bill dismissed. C. T. Russell, for the plaintiffs. RICHARD ROBINS vs. DAVID A. WARDE & others. Entries in the books of a partnership are not evidence against any one to show that he is a member of the partnership. MORTON, J. This is an action against David A. Warde and others, alleged to be partners under the name of the New England Express Company. Warde denied that he was a partner, and this was the principal issue in the case. The plaintiff was permitted, against the objection of the defendant Warde, to put in evidence the cash book of the partnership, in which was an entry charging Warde, Humphrey & Company, in which firm Warde was a partner, with a certain por tion of the capital stock, and crediting them with the services of Warde as a trustee. There was no evidence that Warde had any Reiman v. Hamilton. knowledge of this entry. We are of opinion that this evidence was improperly admitted. The purpose of the evidence was to show that Warde was a partner. It had no bearing upon any other issue in the case. After a partnership is proved to exist, the acts and declarations of each partner, within the scope of the partnership business, are admissible against the others. By the association each is constituted the agent of all, and the act of each is the act of all. But the act or declaration of an alleged partner is not admissible against the others to prove the partnership. The rule is the same as in other cases of agency. The agency must be proved aliunde, and then the acts and declarations of the agent, within the scope of his authority, are binding upon the principal. But they are not admissible to prove the agency. Dutton v. Woodman, 9 Cush. 255. Allcott v. Strong, Ib. 323. Currier v. Silloway, 1 Allen, 19. Baker v. Gerrish, 14 Allen, 201. Robbins v. Willard, 6 Pick. 464. The entry in the cash book of the partnership, whether made by one of the partners or by a clerk or agent of the firm, was not competent for the purpose of proving that Warde was a partner. As it was introduced and used for this purpose, the exceptions must be sustained. We do not consider it necessary to discuss the instructions given at the trial, as the evidence upon another trial and the instructions applicable thereto may be different. Exceptions sustained. T. L. Wakefield & G. W. Estabrook, for the defendants. ROBERT G. REIMAN & others vs. JOHN HAMILTON & wife. If husband and wife own a vessel of which he is master, they are jointly liable on contracts for its employment made by him within the scope of a master's authority. CONTRACT by Robert G. Reiman, Washington Lee and Alfred Poor, against John Hamilton and Mary Hamilton. The declara tion alleged that the defendants were owners of the schooner Reiman v. Hamilton. Albion; that they undertook to carry in the schooner a cargo of coals belonging to the plaintiffs, and represented that the schooner was strong, stanch and seaworthy; that the schooner was not seaworthy, but sank with the coal; and that the defendants did not carry the coal as agreed. At the trial in the Superior Court, before Rockwell, J., the plaintiffs introduced evidence that a contract was made by which John Hamilton agreed to carry the plaintiffs' coal on the schooner Albion; that the contract was made after he had told the plaintiffs that he owned the schooner and she was seaworthy; and that the schooner sunk at the wharf with the coal on board, and never carried the coal. There was also evidence that the defendants were husband and wife, and lived together as such; that the wife owned the schooner, and the husband was the master; that the wife had the earnings; that the earnings supported them and their children; and that she knew nothing of this contract until after the schooner had sunk. The defendants contended that a verdict could not be rendered against them both; but the judge ruled otherwise, and instructed the jury that if the defendants were joint owners of the schooner, and the husband was master and contracted to carry the coal, stipulating in the contract that the coal should be carried in a stanch, sufficient and seaworthy vessel, and the schooner sunk by reason of her defects, and the coal was injured or lost, the plaintiffs might recover. The jury returned a verdict against both defendants, and they alleged exceptions. J. H. Butler, for the defendants. J. Nickerson, for the plaintiffs. AMES, J. As the master of the schooner, and as the agent intrusted with its management, the defendant John Hamilton would have authority to contract for the performance of such a service as he undertook in this case to perform. Any such contract, within the apparent and ordinary scope of his duty and trust as master of the vessel, would be binding upon his employIf he were himself one of the owners of the vessel, a con ers. |