tucket stock, if not already properly transferred to said Greenman, as trustee, shall be properly transferred to him for the purposes mentioned in the trust deed of Cottrell & Babcock to Thomas S. Greenman, dated the twenty-sixth day of August, 1879; and, further, that the machinery now in their factory shall be conveyed to said Greenman in trust, by specific description, in compliance with the laws of this state, to make the same a valid security for the uses and purposes mentioned in said trust deed, and subject to said trust; that said property shall be conveyed to said Greenman for the further trust of securing said Nathan Babcock against any liability, loss, costs, or damage arising on any claim by R. Hoe & Company.

“And said Babcock further agrees to take such necessary steps to execute all c0nveyances that may be necessary for the transfer and conveyance of all his right, title, and interest in the stock of said Pawtucket Manufacturing Company and the said New Williamsburg Railroad Company to said Greenman in trust. And it is further agreed that said Cottrell shall have authority to use the company name of Cottrell & Babcock in liquidation and settlement of all matters growing out of said partnership and its dissolution. and not to be used for the purpose of creating any new liability.

“In witness whereof, we, the said Calvert B. Cottrell and Nathan Babcock, have hereunto set our hands and seals the twenty-seventh day of July, A. D. 1880. C. B. COTTRELL. L. s.

“NATHAN BABCOCK.” [L. s]

Cottrell kept and performed all of the agreements by him made in the above contract, and performed all of the obligations by him therein assumed.

On the sixteenth day of September, 1880, Babcock executed and delivered to Cottrell two instruments in writing for the purpose of carrying out the contract. The first of these instruments, omitting the introductory part, which refers to the contract of July 27, 1880, was as follows:

“Now, therefore, for and in consideration of the sum of one dollar to me in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged, I, the said Nathan Babcock, have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto the said Calvert B. Cottrell all my right, title, and interest in and to each and every of the letters patent set forth in the schedule hereto annexed, which is hereby made a part of this instrument, together with the invention or inventions therein and thereby secured; and also all my right, title, and interest in and to any other letters patent or inventions owned or used by said firm, the said letters patent to be held and enjoyed by the said Calvert B. Cottrell for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which each and every of said letters patent are or may be granted, (including any reissue or reissues, extension or extensions, thereof,) as fully and entirely as the same could have been held and enjoyed by me had this assignment and sale not been made. And for a like consideration, the receipt of which I hereby acknowledge, I the said Nathan Babcock, have sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto the said Calvert B. Cottrell, all my right, title, and interest in and to all trademarks owned or used by the said firm of Cottrell 8t Babcock in the manufacture and sale of printing-presses and printing-machines.

“And it is further covenanted and agreed by the said Nathan Babcock that he will sign, execute, and deliver, (but without expense to him,) any and all petitions, applications, or papers which may be necessary to enable the said Cottrell, his legal representatives or assigns, to obtain and secure any reissue or reissues, extension or extensions, of all or any of said letters patent set forth in the schedule hereto annexed, or which are assigned as aforesaid; it being understood that this sale and assignment is without recourse against

said Babcock. “In witness whereof I have hereunto set my hand and seal this sixteenth

day of September, A. D. 1880. NATHAN BABCOOK.” [L. s.]

The schedule attached was a list of patents, twenty-six in number, all of which were for improvements in printing-presses.

The other instrument above referred to was a quitclaim deed from Nathan Babcock to Calvert B. Cottrell of all his interest in the real estate upon which the business of Cottrell & Babcock had been carried on, and in the personal property of the late firm of every kind, including its stocks, bonds, accounts, and contracts.

Immediately after the dissolution of the firm of Cottrell & Babcock, Cottrell associated with him, in the business of manufacturing and selling printing-presses and printing-machinery, his son, Edgar H. Cottrell, under the name of O. B. Cottrell & Co., and succeeded and carried on as successors the business formerly conducted by Cottrell & Babcock. The rights and interests acquired by Calvert B. Cottrell under the contract of purchase, and the conveyances in pursuance thereof, were valuable in‘carrying on the business.

On July 12, 1882, the Babcock Printing-press Manufacturing Company was organized under the joint-stock laws of this state, and located at New London. in this state; the stockholders of which company consisted of the said Nathan Babcock, one Charles B. Maxon, and one George P. Fenner. Nathan Babcock was secretary and treasurer of the company, and Maxon president, and Fenner superintendent ofthe same. Maxon and Fenner were formerly employed for several years by Cottrell & Babcock, and were subsequently in the employ of C. B. Cottrell Se Co. After the organization of the Babcock Printing-press Manufacturing Company, the corporation commenced the business Of manufacturing and selling printing-presses at New London, and caused to be printed, published, and widely circulated among printers, publishers, and others, an advertising card, of which the following is a copy:

THE BABCOCK PRINTING-PREss MAN’F’G 00.
Manufacturers of
DRUM-CYLINDER, STOP-CYLINDER, AND LITHOGRAPHIC PREssEs,
New London, Conn.

NATHAN BABCOCK,
of the late firm of

Chas. B. Maxon, COTTRELL 8e BABCOCK, Geo. P. Fenner, President. Secty. & Treas. Supt.

Between three and four thousand of these cards were sent by mail, and distributed among printers and publishers, including many of the old customers of the firm of Cottrell & Babcock. Prominence was given to the name of “Cottrell & Babcock” in the printing of the card, and also to the name of Nathan Babcock, by printing these names in more conspicuous letters than any other words upon the card, and also the words “of the late firm of” were printed in much smaller type than any other words on the card. The different sizes of type were used by the printers in printing the card without any instruction from the defendant, and the card was not designed or adapted to mislead any person who read it.

After the sale and conveyances above mentioned, Babcock wrote and sent by mail the following letter to one of the old customers of Cottrell & Babcock, namely, Van Antwerp, Bragg & Co., of Cincinnati, Ohio, soliciting their patronage, which letter was duly received by them:

“NEW LONDON, CONN., October 19, 1883.

“Messrs. Van Antwerp, Bragg di- Co., Cincinnati, O.—-—GENTLEMEN: Your valued favor of the 15th is at hand, and contents noticed. \V e regret that we are not able to send catalogue of stop-cylinder presses, as we have not yet published one of that class. We will mail you a photograph of our new lithograph press, which is now completed, and we intend that our stops shall be similar in style and appearance. “is should very much like to furnish you some stops, and can guaranty them equal in every respect to anything you have seen. We have a new look motion, for which patents are now pending, which works remarkably smooth, and holds the-cylinder very firm. We do not know how many presses you want, but we could furnish you three or four in four to six months. If you could make above time answer, we shall be happy to call on you, and, if possible, arrange to furnish them. We have the patterns to make, which necessitates so much time. We have no need to assure you that we can furnish a first-class press when we say that our Mr. Fenner has made all the working drawings ever used by the late firm of Cottrell 8r. Babock on that class of presses, and that, with the dictation of the writer, he made all the plans, measures, movements, and proportions of said presses. Hence we flatter ourselves that no builders better understand the requirements of a stop-cylinder than we do, and certainly none would exert themselves more to furnish a first-class press. Please let us hear from you, and oblige, .

“Yours, respectfully, THE BABOOOK PR’T’G PREss MFG. Co.”

This letter was in reply to the following from that firm:

“CINCINNATI, October 15, 1883. “Babcock Printing Co., New London, Conn.-—GENTLEMEN: We will be wanting a few presses soon. Please send us one of your catalogues. Our wants are stop-cylinders to print matter 30x41. Do your presses resemble Cottrell & Babcock’s. of which we have a number? What would you make us a press for, as per above, delivered here, set up? Send catalogue. “Very respectfully, VAN ANTWERP, BRAGG & Co."

Babcock also, by visit in response to a letter from them, personally solicited one Yewdale, of Yewdale & Co., of Milwaukee, Wisconsin, to patronize the Babcock Printing-press Manufacturing Company. Yewdale was a member of the firm of Yewdale & Co., who were old customers of the 01d firm of Cottrell 85 Babcock. The Babcock Printing-press Manufacturing Company, by their agents and servants, and by their private circulars, cards, and newspaper advertisements, solicited the general public to purchase printingpresses manufactured by them, and also, in the same manner, and by the same means, solicited the old customers of the firm of Cottrell & Babcock, and of their successors, C. B. Cottrell 85 Co.

After the dissolution of the copartnership, and the purchase by Cottrell of Babcoek’s interest in the partnership assets, Cottrell and C. B. Cottrell 85 Co., as the successors of the firm of Cottrell & Babock, continued for a time to manufacture and sell printing-presses stamped with the trade name of “Cottrell & Babcock, New York,” thereon. Customers of the old firm of Cottrell 8t Babcock, and thereafter of C. B. Cottrell & Co., as their successors, have occasionally written and telegraphed to Cottrell & Co., and addressed them as C. B. Babcock & Co., Babcock 85 Son, and Babcock & Cottrell.

Upon these facts the plaintiffs claimed, and asked the court to rule:

First. That the firm of Cottrell 8t Babcock had acquired a valuable trademark in the name of “Cottrell 8t Babeock,” as so used on their machines;

O

and also a valuable trade name and good-will in the business so advertised and conducted, which it was the duty of a court of equity to protect.

Second. That this trade-mark, trade name, and good-will became vested in and the property of the plaintiffs by the assignments of Babcock, and the association of O. B. Cottrell and his son, Edgar H. Cottrell, under the name of O. B. Cottrell 85 Co., conducting the same business at the old stand.

Third. That thereby C. B. Cottrell & 00. became and were the sole successors to the late firm of Cottrell & Babcock, and, as such, were entitled to all the advantages and benefits of the trade names, trade-marks, and good-will of the old firm.

Fourth. That the advertising card issued by the defendant was calculated, if not intended, to infringe the trade-mark, and also to injure the trade name and good-will so acquired, and the defendant should be enjoined from its use.

Fifth. That the plaintiffs were the lawful and sole successors of the late firm of Cottrell & Babcock, and that the defendant had no right so to advertise or conduct its business as to induce the public to believe that it, or any of its officers, represented or were successors to that firm; and that the advertising card of the defendant was so calculated to deceive and had deceived the public, and had induced the belief that the firm of Cottrell & Babcock had been dissolved, and that Babcock and the defendant were its representatives and successors.

Sixth. That the solicitation by the defendant, by letter and personal appeal to the old and well-known customers of Cottrell & Babcock, and the attempt to divert their custom from the plaintiffs as successors of that firm to themselves, was an unlawful interference with the plaintiffs’ rights'.

The court did not so rule, but found the issues for the defendants. The plaintiffs appealed to this court. The reasons of appeal, as filed, are given in full in the opinion of the court.

Augustus Brandegee‘ and Charles Perrin, for appellants.
J. Halsey and S. Lucas, for appellee.

PARDEE, J. The plaintiff’s appeal presents the following reasons of appeal: (1) That the court erred in ruling that the plaintiffs, upon these facts, had not“acquired a valuable trade name and good-will in the business so advertised and conducted, which it was the duty of a court of , equity to protect;” (2) that the court erred in refusing to rule that the plaintiffs were the lawful and sole successors of the late firm of Cottrell & Babcock, and that the defendant had no right so to advertise or conduct its business as to induce the public to believe that it, or any of its officers, represented or were the successors of said firm; (3) that the court, having found as a fact that “the card gives prominence to the name if Cottrell & Babcockg” that “the words ‘Of the late firm of’ were printed in much smaller type than any other words printed on said card ;” and “that said card was distributed among many of the Old customers of the old firm of Cottrell & Babcock,”—erred in ruling that said card “was not adapted to mislead any person who had it;” (4) that the court, having found as a fact that said Nathan Babcock, after the conveyance aforesaid, personally and by letter, and that the defendants by their circulars, cards, and advertisements, did solicit the patronage of customers Of the old firm to the new firm, erred in ruling “that such an attempt to divert their custom was not an unlawful interference with the plaintiff’s rights.”

Of course, in the use Of similar names, signs, advertisements, labels,

and cards, there is a. wide field for efforts to mislead the public. There is the slight resemblance which would deceive only the most careless, and the almost perfect reproduction which would deceive all save the most careful person of a thousand; and it must always remain a question of fact as to whether the resemblance rises to the degree which constitutes it an injurious deception. Under our practice, in this case the superior court inspected the card, saw the style and size of type, noted what is said and what is left unsaid, and heard evidence as to confusion of names, as to the misleading of possible customers, and as to all other matters, and from the whole deduced and conclusively determined the resulting fact that no person would be led, by the card, to believe that the printing-presses therein mentioned are manufactured by the plaintifi's, or that they have ceased to manufacture, or that the Babcock Printing-press Manufacturing Company had, upon their cessation from the manufacture, taken up and continued the business which they had dropped. By that finding this court is bound, and it answers the first three reasons for appeal.

In the contract terminating the partnership relation which had existed between Cottrell and Babcock, it is provided that no business shall thereafter be carried on in the name of that firm; thus reserving to each the full right to the use of his name. Cottrell did not require Babcock to agree, and the latter did not agree, to abstain from the manufacture of printing-presses. By purchasing the good-will merely, Cottrell secured the right to conduct the old business at the old stand, with the probability in his favor that old customers would continue to go there. If he desired more, he should have secured it by positive agreement. The matter of good-will was in his mind. Presumptiver he obtained all that he desired. At any rate the express contract is the measure of his right; and since that conveys a good-Will in terms, but says no more, the court will not, upon inference, deny to the vendor the possibility of successful competition, by all lawful means, with the vendee in the same business. No restraint upon trade may rest upon inference. Therefore, in the absence of any express stipulation to the contrary, Babcock might lawfully establish a similar business at the next door, and, by advertisement, circular, card, and personal solicitation“ invite 'all the world, including the old customers of Cottrell & Babcock, to come there and purchase of him; being very careful always, when addressing individuals or the public, either through the eye or the ear, not to lead any one to believe that the presses which he offered for sale were manufactured by the plaintiffs, or that he was the successor to the business of Cottrell & Babcock, or that Cottrell was not carrying on the business formerly conducted by that firm.

That he may do this by advertisements and general circulars courts are substantially agreed, we think. But some have drawn the line here, and barred personal solicitation. They permit the vendor of a good-will to establish a like business at the next door, and, by the potential instrumentalities of the newspaper and general circulars, ask the old customers to buy at the new place, and withhold from him only the instru