And Vice Chancellor Van Fleet, in the Wirtz Case, 50 N. J. Eq. at page 168, 24 Atl. at page 659, puts it thus: "If it appears that the resemblance between the two labels is such that it is probable, in the sale of the goods of the parties, the one will be mistaken for the other, enough is shown to make it the duty of the court to interfere. Edelsten v. Edelsten, 1 De G. J. & S. 185, 200. As was said by Mr. Justice Clifford in McLean v. Fleming, 96 U. S. 245 [24 L. Ed. 828]-a case in which all the principles pertinent to the case in hand were stated with great clearness and fullness-no rule, as to what degree of similarity must exist in order to constitute an infringement, can be laid down which may be applied to all cases. All that can be done in that regard is to say that where the similarity is sufficient to convey a false impression to the public mind, and is of a character to deceive the ordinary purchaser, buying with the caution usually exercised in such transactions, there sufficient ground exists to entitle the injured person to redress. There are cases which lay down a more liberal rule in favor of persons claiming protection, and declare that if the resemblance is only such as is calculated to deceive the careless and unwary, a sufficient degree of similarity will exist to justify the court in interdicting the use of the counterfeit." The facts in the case sub judice, in my judgment, abundantly establish that the defendant's cartons and carton wrappers, its seal trade-mark and trade-name, associated as they are, tend towards deceiving, and are likely to deceive, the purchasing public into the belief that the defendant's crackers and biscuits are those of the complainant. using wooden boxes to inclose for shipment an assembled assortment of filled cartons, the complainant used paper shaped into box form. The only service in this case of the imitation of the carton package and the bundle package is to emphasize the trend of the defendant towards copying the complainant's style. ing the defendant, including the director [6] There will be an injunction restraindefendants (for the sake of convenience I have heretofore referred to all of the defendants as one), from putting up and selling or offering for sale: (a) Any carton of bakery products having thereon an imitation of complainant's "Iner-Seal" trade-mark, calculated to mislead or deceive, like the defendant's "Swastika" trade-mark. This shall not be construed to restrain the defendants from selling such cartons with their asserted trade-mark thereon, provided the trade-mark is so differentiated in general appearance and application from the complainant's trade-mark that it is not calculated to deceive the ultimate ordinary purchaser. (b) Any carton of bakery products having thereon an imitation of complainant's "Uneeda Biscuit" trade-name, calculated to mislead or deceive, like those on defendant's carton "Abetta Biscuit." thereon an imitation of complainant's trade(c) Any carton of bakery products having names "Uneeda Milk Biscuit," "Oysterettes," "Marshmallow Dainties," "Cocoanut Dainties," and "Oatmeal Crackers," calculated to mislead or deceive, like those on defendant's cartons respectively, "Abetta Milk Biscuit," "Toke Point Oysterettes," "Marshmallow Dainties," "Cocoanut Dainties," and "Abetta Oatmeal Crackers." (d) The particular forms of cartons or packages referred to in the bill of complaint and identified therein as "Complainant's Exhibit Defendant's Abetta Biscuit and RedEnd Seal Carton No. 2" and "Complainant's Exhibit Defendant's Infringing Packages Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, respectively," which shall, by reason of the collocation of size, shape, colors, lettering, spacing, and ornamentation, present a general appearance as closely resembling complainant's exhibits, respectively, referred to in the bill of complaint and marked as "Complainant's Exhibit Complainant's Cartons Trade-Name Uneeda Biscuit Wrapper No. 2" and "Complainant's Exhibit Complainant's Cartons Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16," as do the said defendant's respective infringing packages [5] The carton formation and the bundle packages are not the subject of exclusive appropriation by the complainant, as devices to mark and indicate its products. The cartons known as the "Peter's Patent" were declared in Union Biscuit Co. et al. v. Peters, 125 Fed. 601, 60 C. C. A. 337, as not a patentable invention. There can, of course, be no monopoly of the shape, size, or capacity of a box. The lining of such boxes, with wax or paraffin paper superimposed thereon, and forming a unitary structure capable of interfolding at the ends, for the inclosing of perishable goods, is a system or method which, it seems to me, must necessarily be common to all bakers. I have not a doubt but that the complainant used this form of package before the defendant, and that the secondary purpose of the defendant in adopt-above-mentioned, but this shall not be coning it was a part of its general plan of imitating the complainant's line of operation. Nor do I think it can be disputed that, in connection with the other simulations which have already been pointed out, this particular one failed of its mission. This may also be said of the bundle package. Instead of strued as restraining the defendants from selling packages or cartons of the size, weight, and shape of complainant's packages, nor from using the respective colors as wrappers for such packages, provided such pack. ages are so differentiated in general appearance from said complainant's respective pack ages that they are not calculated to deceive the ultimate ordinary purchaser. The complainant's prayer for an accounting will be denied, upon the grounds and for the reason stated by Vice Chancellor Stevenson in International Silver Co. v. William H. Rogers Corporation et al., 66 N. J. Eq. 140, 57 Atl. 725. The complainant is entitled to costs. (86 N. J. L. 41) COGHLAN v. SUPREME CONCLAVE IM- [erwise, permitting the designation of the bene- Cent. Dig. § 1855; Dec. Dig. § 719.*1 7. INSURANCE (8 726*)-CONTRACT-FORFEI- So far as fair construction of the language used will permit, the provisions and conditions of a contract of insurance with reference to forfeiture should be strictly construed in fa (Supreme Court of New Jersey. July 1, 1914.) Vor of the insured and against the company. (Syllabus by the Court.) [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1870-1872; Dec. Dig. § 726.*] 1. INSURANCE (§ 795*) CONSTRUCTION OF 8. INSURANCE (8 719*)-CONTRACT-CONSTRUC CONTRACT-BENEFICIARY. Where a contract between a fraternal beneficial association and a member provides that a benefit fund shall be paid on the death of the member to his "estate," it is payable to his executor or administrator. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1973; Dec. Dig. § 795.*] TION. An agreement by an applicant for a benefit certificate of a fraternal benevolent association, to be bound by after-enacted by-laws, refers only to such by-laws as tend to further the subsistence of the contract between the associa tion and the member, and not to such by-laws as defeat or impair the contract. [Ed. Note.-For other cases, see Insurance, 2. STATUTES (§ 263*)-CONSTRUCTION-RETRO- Cent. Dig. § 1855; Dec. Dig. § 719.*] SPECTIVE EFFECT. CIARY. Statutes are not to be given a retrospec-9. INSURANCE (§§ 719, 780*)-IMPAIRMENT OF tive effect or operation if their language reaCONTRACTS-RIGHT TO DESIGNATE BENEFIsonably admits of another construction. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 344, 349; Dec. Dig. § 263.*] 3. INSURANCE ($ 719*)-BY-LAWS OF BENEFICIAL ORGANIZATION-RETROSPECTIVE OPER ATION. The established rule "that words in a statute ought not to have a retrospective operation, unless they are so clear, strong, and imperative that no other meaning can be annexed to them," should be applied to the interpretation of by-laws of social and beneficial organizations in controversies with members in the civil courts. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*] 4. INSURANCE (§ 719*)-BY-LAWS OF BENEFICIAL ORGANIZATION-RETROSPECTIVE OPERATION. A by-law of a fraternal beneficial association, limiting the designation of beneficiaries in its endowment certificates to a certain class, and providing that "any designation of beneficiaries, except by their individual names, shall render the endowment certificate absolutely void," has no retrospective operation, so as to affect the validity of a prior contract not in harmony therewith. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*] 5. INSURANCE (§ 719*)-BENEFICIARIES-RETROSPECTIVE OPERATION OF STATUTE. The provision of section 210 of the Maryland statute Code Pub. Gen. Laws 1904, art. 23 (Laws 1894, c. 295, § 143e) that "payments of death benefits may be made only to the widow," and certain others of a class in which the plaintiff is not included, has no retrospective operation, so as to affect the validity of a prior contract not in harmony therewith. for a valuable consideration, has issued to one Where a fraternal beneficial association, of its members a benefit certificate payable on his death to a stated beneficiary, it is incompetent for the association by by-laws, or for the Legislature by statute, thereafter, without such member's consent, to impair the obligation of such contract by depriving the member of the valuable property right of such designation of the beneficiary of the certificate. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1855, 1946; Dec. Dig. §§ 719, 780.*] 10. PLEADING (§ 5*)-ANSWER DEFENSE The opinion of another court in another case is not a defense to be pleaded in answer to an action. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 7; Dec. Dig. § 5.*] Action by Jasper Coghlan, executor of the will of A. Judson Clark, deceased, against the Supreme Conclave Improved Order Heptasophs. Motion to strike out defenses. Certain defenses ordered stricken. Argued February term, 1914, before GARRISON, TRENCHARD, and MINTURN, JJ. Young & Bigelow, of Newark, for plaintiff. W. Holt Apgar, of Trenton, and Olin Bryan, of Philadelphia, Pa., for defendant. TRENCHARD, J. This is a motion to strike out five separate defenses contained in the defendant's answer on the ground that they disclose no defense to the action. The action is brought by the executor of the will of A. Judson Clark, deceased, against the Supreme Conclave Improved Order Hep [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1855; Dec. Dig. § 719.*] 6. INSURANCE (§ 719*) - BY-LAW OF FRATERNAL BENEFICIAL ASSOCIATION-RETROSPECTIVE OPERATION. A by-law of a fraternal beneficial associa- tasophs, a fraternal beneficial association of tion, providing that no entry shall be made in Maryland, operating by the usual subordinate any application or benefit certificate, or oth-lodge method. Plaintiff claims $2,000, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe The complaint alleged and the answer does not deny, that the contract was made in Newark in this state. amount due on a contributor's endowment, by-laws, as they were at the time of the iscertificate made by the defendant as follows: suance of the certificate, do not appear in "This certifies that A. J. Clark has been the record, they throw no light on the meaninitiated, and is a contributing member of Unity ing of this contract. Conclave No. 189 in good standing. In accordance with and under the provisions of the laws governing the order, the sum of two thousand dollars will be paid by the Supreme Conclave Improved Order Heptasophs as a benefit, upon due notice of his death and the surrender of this certificate, to such person or persons as he may, by will or entry on record book of this Conclave, or on the face of this certificate, direct the same to be paid, provided he is in good standing when he dies." On the face of the certificate is the following direction: "To the Officers and Members of Supreme Conclave Improved Order Heptasophs: It is my will that the benefits named in this certificate be paid to estate [Signed] A. J. Clark." The application for membership also directs that: "In case of my decease all benefits to which I may be entitled from the Improved Order Heptasophs be paid to my estate." The certificate is dated April 2, 1889. The first defense alleges that defendant adopted a by-law in June, 1889, restricting the class to whom endowments might be made payable to certain relatives and dependents; that the plaintiff's testator was notified to surrender his certificate and failed to do so. The second defense sets forth a statute of Maryland enacted in 1894 of similar import to the by-law mentioned in the first defense. The third defense recites a decision of the Maryland Court of Appeals construing a by-law of the Knights of Columbus. The fourth defense states that defendant, in June, 1893, amended its bylaws so as to prohibit designation of beneficiaries by will. The fifth defense is that, by reason of defendant's constitution and by-laws revised in 1911 and in force at the death of A. Judson Clark, defendant is indebted, not to plaintiff, but to Mr. Clark's next of kin. All of these by-laws and the statute were adopted after the endowment certificate had been issued. We shall hereWe shall hereafter state more fully their provisions. We are of opinion that the matters above mentioned constitute no defense to this action; that the statute and by-laws are not retrospective or intended to affect the certificate in question; that even if so intended, neither plaintiff nor his testator consented thereto or was bound thereby. The endowment certificate created a contract between the defendant and Mr. Clark. In essence it is a contract of a life insurance. Holland v. Chosen Friends, 54 N. J. Law, 490, 25 Atl. 367; O'Neill v. Supreme Council, 70 N. J. Law, 410, 57 Atl. 463, 1 Ann. Cas. 422; Sautter v. Supreme Conclave, 76 N. J. Law, 763, 71 Atl. 232. It differs from the ordinary insurance contract only in that its terms are interpreted in the light of the application for membership, and of the constitution and by-laws of the association. Inasmuch as the constitution and [1] By the contract the defendant agreed with Mr. Clark to pay $2,000, at his death, to his "estate." While the word "estate" is not very apt, its meaning is clear. The parties undoubtedly meant that the money should be paid to the insured's executor or administrator, to be administered as a part leave at his death. Sulz v. Mutual Reserve, of the property which the insured might 145 N. Y. 563, 40 N. E. 242, 28 L. R. A. 379: Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166. As there is no suggestion in the record that this designation of a beneficiary was improper when made, it only remains to be considered whether any subsequent matter alleged in defense avoids this contract. [2] It is a familiar and important principle, always to be kept in mind in the construction of statutes, that they are not to be given a retrospective effect or operation if their language reasonably admits of another construction. Frelinghuysen v. Morristown, 77 N. J. Law, 493, 72 Atl. 2. [3] The established rule "that words in a statute ought not to have a retrospective operation, unless they are so clear, strong, and imperative that no other meaning can be annexed to them" should be applied in the interpretation of by-laws of social and beneficial organizations in controversies with members in the civil courts. Roxbury Lodge v. Hocking, 60 N. J. Law, 439, 38 Atl. 693, 64 Am. St. Rep. 596, [4, 6] The by-law adopted by the defendant in June, 1889, and recited in the first defense, with unimportant omissions, reads: "Sec. 3. The endowment may be made payable to the following classes of persons only, viz.: (a) To a member's father, mother, wife, or sisters, or any, or as many of them as the children, grandchildren, grandparents, brothers member shall desire and specify; in any of which cases no proof of dependency shall be required by the Supreme Secretary before issuing the endowment certificate. (b) To any person or persons *** who may be dependent altogether or in part upon the member * * * in which latter cases * * written evidence of the dependency ** * * must be furnished to the satisfaction of the Supreme Secretary before the endowment certificate shall be issued "Sec. 4. All beneficiaries shall be designated in accordance with the foregoing regulations; * ** and any designation of beneficiaries, except by their individual names, shall render the endowment certificate absolutely void and of no effect." Clearly this by-law is not retrospective. It limits the class to whom benefits may be made payable, but does not attempt to avoid or alter certificates theretofore issued. The use of the word "shall" in the last clause indicates that a prospective operation only was intended. No doubt if this clause had been intended to affect outstanding certificates, it would have so declared. The fact that the improper designation is made to render the certificate absolutely void makes it clear that outstanding certificates are not intended to be affected, for the defendant cannot be supposed to have had the extraordinary intention to make absolutely void certificates which were valid when issued, and which were accepted and paid for in good faith. [5] The gist of section 210 of the Mary land statute (Laws 1894, c. 295, § 143e) cited in the second defense, is the provision "Payments of death benefits may be made only to the widow," and certain others of a class in which the plaintiff is not included. This sentence is part of a lengthy statute regulating fraternal organizations, prescribing the method of their incorporation, the privileges they shall enjoy, the reports they shall make to the insurance commissioner, etc. There is nothing in this statute as a whole to indicate that the Assembly of Maryland intended to vitiate any past transaction, or to alter the effect of any outstanding certificate. The obvious purpose of the provision quoted is to limit and regulate the future activities of fraternal organizations, and it should be so interpreted. The superior court of Delaware, in a wellconsidered opinion by Chief Justice Lore, discussed the act now before the court, and also the by-law pleaded in the first defense, and held that they were not retrospective, and did not affect certificates issued before their enactment. Emmons v. Supreme Conclave, 6 Pennewill (Del.) 115, 63 Atl. 871. The fourth defense sets up an amendment to the defendant's by-laws, made in 1893, providing that no entry shall be made in any application or benefit certificate, or otherwise, permitting the designation of the beneficiary by reference to a will, and further providing that no will shall be permitted to control the appointment of the beneficiary. The two clauses of this amendment have one purpose, to prevent appointments by will, and the first clause indicates that this purpose is prospective only, and does not relate to prior outstanding certificates. The foregoing observations apply with full force to the matter set up in the fifth defense, and dispose of it. But even if the by-laws and statute before mentioned were intended to have a retroactive operation, they would still be ineffectual to defeat the plaintiff's claim. The endowment certificate evidenced a contract. That contract, like all other contracts, could only be altered by the consent of both parties, by a new meeting of minds. There is no suggestion in the answer that Mr. Clark, or the plaintiff, ever consented, after the making of the contract, to a change in it. On the contrary, the first defense states that Mr. Clark was notified to surrender his cer [7] The agreement to "conform" contained in the application requires more consideration. This application was for membership in a fraternal organization. The natural meaning of the agreement by the applicant to conform to the by-laws, is that he shall conduct himself as a Heptasoph, in his relations with the society and his fellow members, in conformity with its rules in force at the time of his election, or thereafter adopted. That Mr. Clark conformed to the rules of the society is indicated by the admitted fact that he was a member in good standing at his death. It would certainly be a strained construction of the agreement to conform in all respects to the laws to construe it to mean that the applicant's insurance policy may be altered by the insurer at its pleasure. So far as fair construction of the language used will permit, the provisions and conditions of a contract of insurance with reference to forfeiture should be strictly construed in favor of the insured and against the company. Harris v. American Gas Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70; Bohles v. Prudential Ins. Co., 84 N. J. Law, 315, 86 Atl. 438. [8] The rule is established in this state that an agreement by an applicant to be bound by after-enacted by-laws refers only to such by-laws as tend to further the subsistence of the contract between the association and the member, and not such by-laws as defeat or impair the contract. O'Neill v. Supreme Council, 70 N. J. Law, 410, 57 Atl. 463, 1 Ann. Cas. 422; Sautter v. Supreme Conclave, 76 N. J. Law, 763, 71 Atl. 232; Poole v. Supreme Circle, 85 Atl. 821, affirmed 80 N. J. Eq. 259, 87 Atl. 1118. Moreover it has also been decided in those cases that such contract conferred upon the member a property right; "that even the power of appointment (of a beneficiary) incidental to the status of membership in a fraternal association is a valuable property right." O'Neill v. Supreme Council, 70 N. J. Law, 410, 417, 57 Atl. 463, 1 Ann. Cas. 422. Argued before GUMMERE, C. J., sitting alone, by consent of parties. Clark McK. Whittemore, of Elizabeth, for prosecutors. McCarter & English, of Newark, for defendants. [9] Mr. Clark had by his original contract the City of Newark to execute to them a the right to have the amount of his policy deed. From an order directing the execution paid on his death to his executor, to be dis- of the deed, Charles L. Jacobus and others tributed according to his will to such of his bring certiorari. Affirmed. kindred and friends or to such charities as he preferred. This was the motive which induced Mr. Clark to make the contract, and when the defendant sought to take away Mr. Clark's freedom of disposing of the benefit, and to restrict payment to certain next of kin, for whom he may have had no affection, it attacked the very essence of the contract. Clearly, therefore, if the by-laws and Maryland statute in question be regarded as intended to apply to prior contracts between the defendant and its members, they are ineffectual for such purpose, since it was not competent for either the defendant or the Legislature to impair the obligations of such contracts. Ball v. Board of Trustees, 71 N. J. Law, 64, 58 Atl. 111; 15 A. & E. Enc. of Law (2d Ed.) 1044. [10] The fifth defense, sets up the opinion of the court in Mathieu v. Mathieu, 112 Md. 625, 77 Atl. 112. But this opinion, while of course worthy of the consideration which we have given it in the decision of this present case, does not constitute a defense to be pleaded. The result is that the first, second, third, fourth, and fifth defenses will be stricken out, with costs. JACOBUS et al. v. CAHILL et al. (Supreme Court of New Jersey. May 27, 1914.) 1. MUNICIPAL CORPORATIONS ($ 981*)-TAXATION-REDEMPTION FROM SALE. The tax adjustment act. commonly known as the Martin act (Act March 30, 1886 [P. L. p. 149], as amended by Act April 18, 1883, § 3, [P. L. p. 309]), prescribing the procedure for redemption of land from municipal tax sales, is applicable where the owners are unknown. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 2134-2139; Dec. Dig. § 981.*] 2. MUNICIPAL CORPORATIONS (§ 981*)-TAXA TION-REDEMPTION FROM SALE. Under the tax adjustment act, commonly known as the Martin act (Act March 30, 1886, [P. L. p. 149], as amended by Act April 18, 1889, § 3 [P. L. p. 309]), prescribing the procedure for redemption of land from municipal tax sales in case of unknown owners, and providing that if such owner, or any person interested, fails to redeem within the time limited. the circuit court shall make an order directing the comptroller to make a deed to the purchaser which shall convey the lands free from all interest of such unknown owners, the order is final, and hence the land cannot be redeemed subsequent thereto, even though the deed has not been executed and delivered by the comptroller. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 2134-2139; Dec. Dig. § 981.*] Certiorari to Circuit Court, Essex County. Application by Florence E. Cahill and others for an order requiring the Comptroller of GUMMERE, C. J. The writ in this case brings up proceedings had before the circuit court of Essex county instituted by Florence E. Cahill, one of the defendants, for the purpose of obtaining from that court an order directing the comptroller of the city of Newark to execute and deliver to her a deed of conveyance for certain lands in the county of Essex purchased by her at a tax sale held by the city comptroller on the 28th of May, 1906, including the final order made therein directing the execution and delivery of such conveyance by the comptroller. At the hearing had before the circuit court Adams, J., delivered the following opinion: "The petitioner, Florence E. Cahill, bought at a tax sale the property known as the Moses and bought also premises known as the JonRoberts tract, and received certificate No. 7215, athan Lyon tract, for which she received certificate No. 7218. In each case, after the preliminary proceedings required by law in the case of unknown owners, the petitioner obtained orders to show cause directed to unknown owners and persons in interest, which were duly published, and upon the return of the order in each case a final order was made in each case on December 19, 1908, for the execution of a deed. "The comptroller of the city of Newark, acting under legal advice, has refused to execute the deeds, upon the ground that the premises had been already redeemed from the sales upon which the proceedings were based. Accordingly, in order to test the question, petitions have been filed in this court, and the comptroller has been called on to show cause why he should not give a deed pursuant to the direction of the previous order. The "It appears that on December 19, 1908, the granted, one H. A. De Raismes deposited with same day upon which the orders for deeds were erties. The question at issue between the petithe comptroller the moneys to redeem his proptioner and the city is, therefore, whether the redemption was, in each case, effectual. position of the comptroller is that the time for redemption from a tax sale does not expire until he has actually delivered a deed to the purchaser, and that, as these moneys were deposited in the comptroller's office before the execution and delivery of the deeds which the court has directed the comptroller to give, the redemption was effective. "The answer to this question must depend upon the language of the statute which regulates the procedure in the case of unknown owners. I will refer, for convenience, to Griffith's edition of the tax adjustment act, commonly called 'Martin act,' with its supplements. "In 1905 an act was passed, approved June 2, 1905, which is to be found on pages 490 to It 492 of the Pamphlet Laws of that year. amends section 6 of the act commonly known as the Martin act, which in Griffith's edition is designated by the Roman numeral VI, and con *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |