as surety and by the association as principal, in the sum of $60,000, the obligee named being those who had theretofore and who should thereafter become subscribers for crypts and spaces in the mausoleum, and reciting that the association has undertaken to build the mausoleum "free of mechanics' liens, in accordance with the plans and specifications." The condition of the bond is that, if the association shall build and complete the mausoleum according to the plans and specifications, and "if the said principal shall pay as they become due all just claims for all the work performed, and for all skill, tools, machinery, and material used or employed in the construction of said building, and shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from its failure to construct and complete said mausoleum as aforesaid, and to promptly discharge such claims, then the above obligation shall be void." Then follows a proviso that, in case of default of the principal, the surety shall have the right to assume and complete or procure the completion of the building, and shall be subrogated to all rights and properties of the principal arising out of the undertaking and otherwise, and all deferred payments due the principal by the terms of the subscriptions. Under date of January 9, 1917, the marble company contracted with the association to supply the marble for the mausoleum at the price of $39,000. The marble was duly delivered, and the mausoleum fully completed in accordance with the plans and specifications. No liens or other demands were filed or claimed against the cemetery property or the mausoleum. In a contract dated October 28, 1922, between the association and the marble company, it is recited that there was then due and owing the marble company, on account of the marble so furnished, the sum represented by five notes, dated September 27, 1918, given by the association to the marble company, due respectively one, two, three, four, and five years from their date, each for $5,973.90, with interest at 6 per cent., save that two payments thereon, aggregating $725, had been made; that the association was then unable to pay the notes, and to secure payment "does hereby deliver to the Vermont Marble Company a deed conveying to said Vermont Marble Company" certain enumerated spaces and crypts in the mausoleum, reciting prices therefor aggregating $58,950, with provision for the sale of the spaces and crypts and application of the proceeds on the debt to the marble company, and for reconveyance to the association of unsold spaces after the debt is paid. But it appears that the marble company had realized nothing from this security, and that the association made no further payments on the debt. Under the laws of Minnesota, property in that state used for cemetery purposes is exempt from seizure on attachment and from sale under execution, and from liens for labor or materials supplied for any building or improvement thereon. It appears no subscriber or obligee under the bond has made any claim thereunder against surety company. The complaint was filed in the state court of Wisconsin, May 7, 1923, and the cause removed to the District Court. The facts were all stipulated, and each party moved for a directed verdict, which the court granted on behalf of the marble company, and verdict given for $32,442.79, and judgment thereon rendered. Jackson B. Kemper, of Milwaukee, Wis., for plaintiff in error. Otto Kueffner, of St. Paul, Minn., and A. B. Houghton, of Milwaukee, Wis., for defendant in error. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ALSCHULER, Circuit Judge (after stating the facts as above). [1,2] The bond was executed and delivered in Minnesota, was between a Minnesota corporation and a foreign corporation authorized to transact business there, the mausoleum in question was to be constructed there, and the contract was there to be carried out. The bond is clearly a Minnesota contract, and its scope and the liability thereunder must be tested by the laws of Minnesota. In Jefferson et al. v. Asch et al., 53 Minn. 446, 55 N. W. 604, 25 L. R. A. 257, 39 Am. St. Rep. 618, it appears that a landowner leased the land to one Benz, who in turn sublet it to persons who employed a contractor to make improvements thereon; the contractor giving to Benz for the use of the landowner "and all persons who may do work or furnish material," a bond conditioned that the contractor pay all just claims for work done and material furnished, and indemnify Benz and the owner from mechanics' liens. One who sold the contractor lumber for the job sued on the bond for its unpaid price. The court, while expressing the view that the bond was for the indemnity only of the named obligee, stated that, since the parties to the cause presented it on the theory that 16 F. (2d) 83 the primary purpose of the bond was to secure payment to those doing work or supplying materials on the job, it would upon this theory consider whether there was liability on the bond to the person who sold the lumber to the contractor. It held that, since Benz and his lessees could not be held liable for the lumber, and since, under the law, his interest was not subject to lien therefor, it was a matter of indifference to him whether the materials were paid for or not. The court then propounded the question: "Where, in a contract between two persons, one promises the other to do something for the benefit of a stranger to the contract, and the promisee has no relation to the thing to be done, nor to the stranger to be benefited, can such stranger bring an action to enforce the promise?"—and following discussion of the authorities, concluded: "Without undertaking to lay down a general rule defining when a stranger to a promise between others may sue to enforce it, we are prepared to say that, where there is nothing but the promise, no consideration from such stranger, and no duty or obligation to him on the part of the promisee, he cannot sue upon it." In the instant case we have not even the promise to materialmen, on the theory of which the court considered Jefferson v. Asch. Surely there was here no consideration passing from the marble company to the obligee, and no duty or obligation to the marble company, which, to all intents, was a stranger to the bond transaction. We have here, also, the circumstance there appearing of the obligee of the bond being, after the building was completed, legally indifferent to "whether the work and materials were paid for or not." The mausoleum was finished, and under the law of Minnesota no lien thereon could be asserted, and no execution or attachment levied, and surely individuals of the class constituting the obligee of the bond were not personally liable. There is apparently no dispute that the Jefferson-Asch Case, unless afterward modified, indicates the law of Minnesota as to the right of defendant in error to sue on the bond; but it is contended that subsequent decisions of the same court have so far departed therefrom as to sustain this action. Michaud et al. v. Erickson et al., 108 Minn. 356, 122 N. W. 324, is claimed to indicate such a departure; but we do not see wherein this is so. It appeared there that others had an interest with the obligee in the subject-matter of the bond, and that the obligee acted in the matter, not only for himself, but as agent for these others, among them those who asserted liability to them under the bond, and the court there said: "The contract is with Read [the obligee of the surety bond]; but these third parties were to receive a benefit therefrom, and under the rule in Jefferson v. Asch they are entitled to maintain the action, providing there was an obligation to them on the part of Read." We may again state that no similar relation appears between obligee of the bond here and the marble company. The other cases principally relied upon to establish the departure are Clark v. Clark, 164 Minn. 201, 204 N. W. 936, and Harriet State Bank et al. v. Samels et al., 164 Minn. 265, 204 N. W. 938. But these cases do not indicate any such conflict or departure. The circumstances of the first make it quite inapplicable. The second, while more nearly in point, seems rather to confirm than conflict with Jefferson v. Asch. The opinion states: "In Jefferson v. Asch • it was held that a stranger to a contract to whom the promisee is under no duty or obligation, who is not in privity with the parties, and who has paid no consideration, cannot recover upon a promise to do something for his benefit. That doctrine is firmly established in this jurisdiction" (citing cases). Moore v. Mann et al., 130 Minn. 318, 153 N. W. 609, is in its facts strikingly similar to the instant case. The bond there sued on by a stranger to it, who had done work on the premises, was in all essential particulars like that here. Respecting his right to sue, the court said: "We construe the bond to be one of indemnity only. Dittenhofer was the sole obligee. It did not intend to secure Moore or others who might do work included in it. It intended to indemnify Dittenhofer. It did not intend to give any one else the right to sue upon it. Under this construction there is nothing left for profitable discussion. The question of a consideration passing to the surety is immaterial. Nothing is to be gained by investigating the cases where one is permitted to sue on a promise made to another for his benefit. It was not intended that any one but Dittenhofer should be indemnified, or that any one other than he might sue." Whatever may be the law thereon in other jurisdictions, that of Minnesota is too well estalished by its Supreme Court to warrant our departure from it. So tested, defendant in error, who was a stranger to the bond, who had paid no consideration, and to whom the obligee was under no duty, and was not in privity, acquired no rights under it. None of the exceptional circumstances here appear whereunder it has been held that a stranger to a contract may recover thereon. In Error to the District Court of the United States for the Eastern District of Pennsylvania; Thompson, Judge. Action by Walter Peirson against A. B. Leach & Co., Incorporated. Judgment for plaintiff, and defendant brings error. Affirmed. In briefs for defendant in error it is earnestly urged that, since there could be no lien on the cemetery property, the parties to the bond must have intended thereby to secure payment to those supplying material and work therefor, as neither they nor the contractors would, without right of lien, or to execution on judgment, undertake to supply materials or work for the premises; also that the marble company knew of and Brown, both of Philadelphia, Pa., for de contracted with reference to and on the faith of the security of the bond. The stipulation does not indicate whether or not it had such knowledge, nor would these considerations make any difference in the legal relations. Besides, it would be strange indeed if, relying on this security, it permitted five years to pass before attempting to assert it against this responsible and accessible surety, in the meantime accepting serial notes with maturities up to five years, and after three years making a new agreement for the acceptance of evidently doubtful security from the cemetery company. While it is probable that it knew of the existence of the bond, its reliance upon it is extremely doubtful. Indeed, the circumstances strongly indicate the contrary. But, whatever the merit of these contentions, it is apparent to us that the mausoleum, having been completed without any lien or charge upon it, and without loss to the obligee or to any member of the class as defined in the bond, the marble company is not under the laws of Minnesota entitled to sue thereon. The judgment must be, and it is, reversed, and the cause is remanded, with direction to proceed in conformity herewith. Francis Rawle and Joseph W. Henderson, both of Philadelphia, Pa., for plaintiff in error. Brown and Henry P. John Arthur fendant in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. This case grows out of a purchase of bonds from A. B. Leach & Co., the defendant, by Walter Peirson, the plaintiff. The latter claimed that when he bought the bonds from Leach & Co.'s agent, Mather, the latter agreed that if Peirson was dissatisfied with them, Leach & Co. would repurchase at the purchase price. Having become dissatisfied with them, Peirson tendered Leach & Co. the bonds, and on their refusal to repurchase brought this suit. On their part, Leach & Co. denied that Mather had so agreed, and also averred he had no authority to so agree. The case was tried on these issues and a verdict rendered for the plaintiff. Whereupon Leach & Co. sued out this writ. The facts, issues, and questions involved were very clearly stated in the court's charge: "Mr. Peirson claims that when the bonds. were sold that Mr. Mather made this agreement with him as to the repurchase of the bonds by the defendant. Mr. Mather denies that he made such an agreement, so there you have contradictory statements of the fact 1275744.120, 72 8.Ed. 75 from either side, and it is a question for you 48Au To. ET. ST, air Tica Cated Evidence 271*(19)—Letter reciting agreement on which action was based, which evoked no denial by defendant, held properly admitted in evidence, though self-serving. In action by buyer of bond from seller's agent to recover on alleged agreement of seller to repurchase, where agent's authority to make agreement, if made, was in issue, letter written by buyer to seller, reciting agreement which evoked no denial by seller, though selfserving, held properly admitted. *Certiorari 'granted 47 S. Ct. 95, 71 L. Ed. —-. in all cases to determine which side you will believe. The questions of fact all through the case will be for your determination. "If you determine that fact in favor of the defendant, if you find that Mr. Mather did not make any such agreement, that ends the plaintiff's case entirely so far as his claim for damages is concerned. If, however, you find that there was such an agreement made, then you have the further fact to find as to whether or not that agreement was made in pursuance of authority given by A. B. Leach & Co. "There is no general authority-I think it will be conceded by both sides-in an agent for the sale of anything, to make an agreement of that sort. It must be through special 16 F. (2d) 86 authority given by his principal to him, and it may be either express or implied. When a plaintiff comes into court and is suing on a contract alleged to have been made by an agent, the burden is on him to show the agent's authority, and if he has any doubt in his mind as to the agent's authority, then he naturally is put upon inquiry, and if he comes into court without having established any authority on the part of the agent to do what he claims the agent did, his case falls. In order to establish that authority the plaintiff has offered evidence from which he asks you to find that the defendant was notified by a letter from Mr. Peirson to the defendant, dated May 9, 1921, of which a copy is produced which the plaintiff claims is taken from his letter book, in which he states, in addressing Leach & Co.: 'Dear Sirs: When I purchased from you the Massachusetts Oil & Refining Company bonds it was agreed by Mr. Mather that any time I so desired you would take them off my hands at cost, 98. I have need of some money and will avail my self of this privilege. When shall I deliver them to you? Very truly yours, Walter Peirson.' "The plaintiff's contention is that that letter was sent by mail to the defendant, and there being the presumption that a letter put in the mail is received by the party to whom it is addressed, the plaintiff relied on the evidence he had produced to show you that the letter had come to A. B. Leach & Co., and that, A. B. Leach & Co. having failed to disaffirm what was stated in that letter, that was acquiescence upon their part to the statements made by Mr. Peirson as to their agent's authority to make this agreement. This letter, therefore, has a very important bearing upon the whole case. If A. B. Leach & Co. received that letter and had notice that their agent had made this agreement and failed to disaffirm the statement made by Mr. Peirson as to what their agent had done or what Mr. Peirson said he had done, then you would be justified in finding that A. B. Leach & Co. acquiesced in the agreement made by their agent and that he had authority to do what Mr. Peirson said he had done. "But the defendant has offered evidence to show that it never received that letter, so that whether the letter was written at the time, whether it was mailed or not, is entirely immaterial unless you believe from the evidence that A. B. Leach & Co. did receive it. If they did not receive the letter, then, of course, it had no notice of the plaintiff's assertion that Mr. Mather had made this agreement, and so far as the effect of the letter on the case is concerned the plaintiff has failed in the proof of authority on the part of Mr. Mather to do what Mr. Peirson claimed he did in making the contract." By the finding of the jury, the question of receipt of the letter by A. B. Leach & Co. and their failure to disaffirm it is established in the plaintiff's favor and no error is shown in the verdict, unless the court erred in receiving the letter in evidence. If it was so in error, it follows that the defendant was entitled to binding instructions. Strong objection is made to the admission of the letter, that it was inadmissible because selfserving. The court recognized that, standing by itself, the statements of the letter were self-serving and could not affect Leach & Co., and so instructed the jury, saying, as quoted above, that if Leach & Co. did not receive it, "the plaintiff has failed in the proof of authority on the part of Mr. Mather to do what Mr. Peirson claimed he did in making the contract." On the other hand, if this letter, self-serving though it be, was received by Leach & Co., then in the peculiar circumstances of this case the more self-serving it was in its assertions, the more insistently it called for disaffirmance by Leach & Co., and if not disaffirmed and repudiated, its self-asserting statements created an acquiescing and consenting situation against Leach & Co. from which a jury might infer that Mather had been authorized to make the statements, or that, having made them, Leach & Co. had ratified them. Being pertinent and evidential on the question of ratification, we are of opinion the judge committed no error in admitting the letter. We may add that we have not overlooked the fact that the court in admitting the letter did not limit its effect to the bonds mentioned therein, but as such point was not raised either in objections to testimony or exceptions to charge, the matter is not before us for review. The judgment below is affirmed. FEIL v. AMERICAN SERUM CO. (Circuit Court of Appeals, Eighth Circuit. November 10, 1926.) No. 7226. I. Trade-marks and trade-names and unfair 2. Trade-marks and trade-names and unfair It is not always fatal to the qualification of a trade-mark for registration that it is composed of parts of two words. 3. Trade-marks and trade-names and unfair competition 59(5)-Registered trademark "Wormix," for stock remedy, held infringed by trade-mark "Worm-X" (Comp. St. § 9501). "Worm-X," used by defendant as the name of a live stock remedy sold in competition with that made and sold by complainant under the registered trade-mark "Wormix," held a colorable imitation, and an infringement, under Comp. St. § 9501. 4. Trade-marks and trade-names and unfair competition 93(1)—Fraudulent intent and misleading of public by infringer will be presumed, when on notice he refuses to cease use. In suits for infringement of registered trade-marks, where defendant has refused on notice to cease the use of an infringing device, and has continued to infringe, neither a fraudu lent intent to injure complainant nor an actual misleading of the public need be proved, but both will be presumed. Appeal from the District Court of the United States for the Northern District of Iowa; George C. Scott, Judge. Suit in equity by Sidney R. Feil, doing business as the Ivo-San Laboratory, against the American Serum Company. Decree for defendant, and complainant appeals. Reversed and remanded, with directions. For opinion below, see 6 F. (2d) 643. dismissal of a suit by the complainant, Feil, the owner of the trade-mark "Wormix," No. 161,134, registered November 7, 1922, to recover damages inflicted upon him by the defendant, American Serum Company, a corporation, by its infringement of his trademark by its use of the colorable imitation "Worm-X," and for an injunction against further infringement. The court below dismissed the bill on the ground that "Wormix" was incapable of becoming a trade-mark, because it was descriptive. In this court the case presents two questions: (1) Was "Wormix" so descriptive that it was disqualified from becoming a trade-mark? and (2) if it was not, was the use by the defendant of "Worm-X" in competition with it a colorable imitation and an infringement of that trade-mark? In the year 1920 the complainant was and ever since has been engaged under the name of the Ivo-San Laboratory at Cleveland, Ohio, in the manufacturing, compounding, and selling of remedies for the diseases and afflictions of hogs, other livestock, and poultry. One of these remedies, manufactured and sold by it, was for the treatment of hogs, horses, sheep, and cattle for worms in the alimentary tract. This remedy the complainant made in the form of a powder packed in boxes on which it securely placed this mark "Wormix," and sold the remedy so marked in commerce among the states from about March, 1921, until the present time. On November 7, 1922, he registered "Wormix" as his trade-mark and obtained his certificate of registration thereof. He advertised his remedy under this mark in many trade papers at great expense, and built up a valuable good will and very profitable business. He has succeeded in selling his remedy so marked in more than threefourths of the states in the United States. In 1922 the defendant commenced to make and sell in a liquid form, in bottles and like containers, a remedy to expel worms from the alimentary tracts of hogs. The defendant called, placed on, and secured to its containers in which it sold this remedy the mark "Worm-X," and advertised and sold it under that name in competition with the complainant's remedy, and thereby diminished and injured the business of the complainant, and continues so to do. On May 26, 1923, the complainant in writing notified the defendBefore SANBORN, Circuit Judge, and ant that he owned and was using this tradeWOODROUGH, District Judge. B. M. Kent, of Cleveland, Ohio (Kwis, Hudson & Kent, of Cleveland, Ohio, on the brief), for appellant. G. T. Struble, of Sioux City, Iowa (Jepson, Struble, Anderson & Sifford, of Sioux City, Iowa, on the brief), for appellee. WALTER H. SANBORN, Circuit Judge. This is an appeal from a decree of mark "Wormix," and requested it to desist from the use upon its remedy of the mark "Worm-X," on the ground that it was an infringement of the complainant's mark. The |