(254 Pa. 597) In re KISNER'S ESTATE. ATTESTING without issue, and leaving cousins as his next of kin, one of whom, David P. Kisner, is (Supreme Court of Pennsylvania. July 1, 1916.) the appellant. On February 3, 1911, said de1. WILLS 116 - EXECUTION ceased made and executed his last will, by COMPETENCY OF WITNESSES-EVIDEnce. which he bequeathed his entire estate, exThe minutes of a corporation showing the cept some minor bequests, to three local ornames of persons us corporate director and life The United Charities, member make a prima facie case of their in- ganizations, to wit: capacity as subscribing witnesses to a will mak- Young Men's Christian Association, and the ing bequests to the corporation. Presbyterian Congregation, all of Hazleton. S. E. Jones and C. W. Kline were witnesses to the will. [Ed. Note.-For other cases, see Wills, Cent. Díg. §§ 284-298; Dec. Dig. 116.] 2. EVIDENCE 425-PAROL EVIDENCE-CORPORATE RECORDS. On an issue as to the competency of witnesses to a will, making a bequest to a charitable corporation, though the corporate minutes show that they are respectively director and life member of the corporation, parol evidence that the minutes were incorrect, and that the witnesses were not connected with the corporation, is admissible. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1862; Dec. Dig. 425.] 3. WILLS 324(4)—EXECUTION-COMPETENCY OF WITNESSES-QUESTION OF FACT. Evidence held to present a question for the jury whether a witness to a will, making bequests to a corporation, had resigned his directorship of the corporation before becoming a witness. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 225, 770; Dec. Dig. 324(4).] 4. WILLS 116-EXECUTION OF WITNESSES-INTEREST. COMPETENCY That one became captain of a team to collect funds for a charitable corporation or took a general friendly interest therein does not render him an interested party, so as to make him an incompetent witness to a will in which the corporation was a legatee. Appellant contends that they were not at the time disinterested witnesses, and that therefore, under the act of April 26, 1855 (P. L. 328), said bequests to religious and charitable uses are void and pass to the next of kin. The United Charities of Hazleton was a corporate body, and appellant avers that Mr. Jones was then a director and Mr. Kline a life member thereof, which averment is denied by appellees. The auditing judge and court below found that Mr. Jones was not a director, and Mr. Kline not a member, and that both witnesses to the will were disinterested. The correctness of such finding and the admissibility of parol evidence to contradict the corporate minutes of the United Charities are the main questions raised by this appeal. Mr. Kisner was a member of the bar and a man of exceptional ability. He drew his own will and was deeply interested in the objects for which he therein provided. There was not the slightest suspicion with reference to the will or its execution; and probably no testator was ever more anxious than 170-MEMBERSHIP-CON- he to make his will effective. Nevertheless [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 284-298; Dec. Dig. 116.] 5. CORPORATIONS SENT OF MEMBER. No one can be compelled to become a member of a charitable corporation without his knowledge or consent. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 624-632; Dec. Dig. 170.] 6. CORPORATIONS 292-OFFICERS - DIRECTORS-RESIGNATION. The resignation of a director of a corpora- | tion need not be in writing. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1255-1257; Dec. Dig. 292.] Luzerne Appeal from Orphans' Court, County. the case must be, as it was by the court below, passed upon purely as one of law and fact. The minutes of the United Charities of Hazleton show that Mr. Jones was, at the annual meeting in March, 1909, elected a director thereof for the term of four years; that he attended one meeting of the board during the year 1910; that on the date of the will he was named as captain of a team to collect funds for the association; that his name appeared as a member of the home In the matter of the estate of Elliott P. committee; and that at the annual meeting Kisner. From a decree dismissing excep- in March, 1912, his resignation was referred tions to the account of executors, David P. to as having been tendered during the preKisner appeals. Affirmed. ceding year. Mr. Kline's name when he witArgued before POTTER, STEWART, MO-nessed the will was and had been for some SCHZISKER, FRAZER, and WALLING, JJ. J. Q. Creveling and D. L. Creveling, both of Wilkes-Barre, and Gilroy & Duffy, of Wilkes-Barre, for appellant. J. T. Lenahan, of Wilkes-Barre, and R. L. Bigelow, F. P. Boyle, and J. H. Bigelow, all of Hazleton, for appellees. years on the corporate minutes as a life member of said United Charities. [1] We agree with the court below that such minutes or corporate records make a prima facie case of incapacity in the subscribing witnesses. But the court permitted parol evidence tending to show that the corporate minutes were incorrect, and that as a matter of fact Mr. Jones was not a director nor Mr. Kline a member of said United Charities when they witnessed the will. WALLING, J. This is an appeal from a partial distribution of the estate of Elliott P. Kisner, late of Hazleton, Luzerne county, Pa., who died March 22, 1911, unmarried and [2] In our opinion such evidence was com petent. It is not a question as to the effect the minutes as a life member, of which Senaof corporate records against the corporation, tor Kline had no information until this conbut as to the validity of these legacies; and troversy arose. if as a matter of fact the witnesses to the will were disinterested, then the legacies stand, otherwise they fall. The testator was not bound by the corporate records, but by the facts. His right to dispose of his own property was not lost because of mistake in the minutes to which he was not a party. No one was misled, and the case does not come within the rule as to estoppel. Mr. Jones was then one of the commissioners of Luzerne county, and as such joined in voting an annual appropriation to said United Charities of Hazleton. For which reason he testifies that he resigned as a director thereof in 1909, and never acted as such thereafter; that his resignation was made orally to the secretary of the United Charities, and he details the circumstances; that he never afterwards attended a meeting of the board or did any act as a director; that he was present once as a private citizen to protest against a criminal prosecution which the United Charities was conducting, and admits he was captain of a team to collect funds for the society. [4] The fact that Mr. Jones as a matter of public spirit or public interest became captain of a team to collect funds for the United Charities or took a general friendly interest therein would not render him an interested party so as to be an incompetent witness to a will in which it was a legatee. Many good citizens take an interest in local charities and join in campaigns to raise funds therefor, but that is not a disqualifying interest within the statute, which refers to some legal interest. Comb & Hankinson's Appeal, 105 Pa. 155; Jordan's Estate, Bear's Appeal, 161 Pa. 394, 29 Atl. 3. Neither would the fact that his name appeared as a member of the home committee render him legally interested in the corporation. [5] In the case at bar neither witness was named in the will or given any duty or power with reference to the bequests therein named; so the principle of Stinson's Estate, No. 1, 232 Pa. 218, 81 Atl. 207, 36 L. R. A. (N. S.) 504, has no application, and the finding that Senator Kline was not a member of the corporation was warranted under all the evidence. No man can be compelled to become a member of such corporation without his knowledge or consent. [3] The secretary died before this controversy arose, and the president testifies in effect that Mr. Jones did not act as a director to his knowledge after April, 1909, although he does not recall that Mr. Jones spoke to [6] The resignation of a director of a corhim about his resignation, which might nat-poration need not necessarily be written. urally be, as the president is a man advanc- "Putting a resignation in writing is the more ed in years and busy with other matters. orderly and proper mode of procedure, but There is however other testimony tending to if the fact exists, and is adequately proven, corroborate Mr. Jones as to the fact of his resignation. The evidence on both sides of that question made it one of fact proper for the determination of the auditing judge and court below. The circumstances, that his alleged resignation was not in writing, that the secretary died soon thereafter, and that there were 28 directors, make it not improbable that Mr. Jones' name might be carried along on the minutes as a director some time after he had actually resigned. Mr. Kline, who was formerly a member of the state Senate from that county, testifies positively that he never was a life member of said United Charities, never joined the same or applied for membership or knew of his election as such, never knowingly contributed specifically thereto, although he usually made annual contributions for the charities of the city, making his checks payable to one of a committee of ladies who waited upon him for that purpose. The evidence tends to show that at one time he so gave his check for an amount sufficient to entitle him to life membership in said United Charities, and that the lady, without his knowledge, turned the check over to the said corporation, and in that manner his name was placed on the result is necessarily the same, as applied to this case." Briggs v. Spaulding, 141 U. s. 132, 154, 11 Sup. Ct. 924, 931 (35 L. Ed. 662). "A director" is the agent of a “business corporation and can resign orally or in writing unless there is some provision to the contrary in the charter or by-laws." Fearing v. Glenn, 73 Fed. 116, 19 C. C. A. 388. On the whole case we see no reason to differ with the conclusion of the court below, that the subscribing witnesses to the will of Elliott P. Kisner were disinterested and the legacies therein given valid. The assignments of error are overruled, and the judgment is affirmed. (255 Pa. 53) BUTZ & CLADER v. UNITED STATES METAL PRODUCTS CO. (Supreme Court of Pennsylvania. July 1, 1916.) PRINCIPAL AND SURETY 9-DISCHARGE OF SURETY-TIME OF EXECUTING CONTRACT. A bonding company as surety on a bond for the faithful performance of a contract is not discharged merely because the bond was shown that the financial condition of the prinexecuted before the contract, where it is not cipal became worse by the time of the execu tion of the contract, or that the surety sustain- | condition of the principal was worse in Oced any loss from the delay. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 19-21; Dec. Dig. 9.] Appeal from Court of Common Pleas, Lehigh County. Action of assumpsit by Solomon Butz and another, trading under the name of Butz & Clader, against the United States Metal Products Company and another on a bond. From a judgment for plaintiff for $3,500, de fendant Massachusetts Bonding & Insurance Company appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, FRAZER, and WALLING, JJ. Murdoch Kendrick and Joseph J. Tunney, both of Philadelphia, and George W. Aubrey, of Allentown, for appellant. Frank Jacobs and A. W. Hagenback, both of Allentown, for appellee. WALLING, J. This is an action on a surety company bond. In 1914 plaintiffs had the contract for erecting an addition to the Le high county courthouse, and let a subcontract, amounting to $22,000, to the United States Metal Products Company. Said subcontract was reduced to writing, early in September of that year, but not then executed. It specifies that: "The contractors shall furnish a satisfactory bond of a surety company to the owners in the sum of $11,000 for the faithful performance of the contract." A duplicate copy of the contract and its accompanying specifications were given the Massachusetts Bonding & Insurance Company; and on September 8, 1914, it joined the subcontractor in executing to plaintiffs the bond in suit, conditioned for the faithful performance of the contract, which was referred to in said bond as "a written contract dated September, 1914." When executed the bond was delivered to the agent of the subcontractor for the purpose of delivery to plaintiffs. The bonding company then knew that said contract had not been executed and stipulated no time for its execution or for the delivery of the bond to plaintiffs. On October 22, 1914, the blank in the date of the contract was filled in as of September 5, 1914, and the contract was then executed and together with said bond delivered to plaintiffs. Thereafter said subcontractor, United States Metal Products Company, failed, and never performed the contract or attempted to do so; and plaintiffs were compelled to relet the same at an extra cost of $3,500, to recover which this suit was brought. The bonding company took no steps to ascertain the whereabouts of said bond, or to recall the same, until after the failure of the said contractor some months subsequent to the execution of the bond. The surety failed to prove that the financial tober than in September, 1914, or that it sustained any loss by the delay in the execution of said contract. The jury found for the plaintiffs, on which judgment was entered. The expressed intent of the bond is to "in demnify the obligee against any loss or damage directly arising by reason of the failure of the principal to faithfully perform said contract." 1914, refers to and identifies this particular The bond made September 8, contract, which the officers of the bonding Company knew had not then been signed. Its execution and delivery with the bond to plaintiffs in October was not an unreasonable delay, as there was no stipulation that it must be done in September. There was no change whatever made in the bond and none in the contract, except inserting the, "5th," so that the contract as executed purports to have been made the 5th day of September, 1914, instead of the day of September, 1914, which we regard as immaterial. The bond was delivered to plaintiffs for the purpose for which it was executed, and no reason is shown to relieve the surety thereon from liability. We agree with the court below that: "Under the principle as laid down in Young v. American Bonding Co. of Balto., 228 Pa. 373 [77 Atl. 623], and followed in Philadelphia, to Use, v. Fidelity & Deposit Co. of Balto., 231 Pa. 211 [80 Atl. 62, Ann. Cas. 1912B, 1085]. contracts of this nature should be construed most strictly in favor of the obligee. To release the surety, there must have been some substantial change in the terms of the conbetween the signing of the bond and the execu tract. There was no evidence that in the period tion of the contract by the plaintiffs there was any material difference in the financial condition of the United States Metal Products Company. The defendant's surety depends entirely upon the theory of what might have been. As before stated, it delivered the executed bond without any stipulation. The contract was executed within a reasonable time, and, in the absence of any evidence that the said Massachusetts Bonding & Insurance Company was injured by the contract not having been executed in September, it was liable for the damage suffered by the plaintiff." See, also, Brown v. Title Guaranty & Surety Co., 232 Pa. 337, 81 Atl. 410, 38 L. R. A. (N. S.) 698. It is not deemed necessary to discuss in In detail the various assignments of error. our opinion, under the facts of this case, none of them should be sustained. The judgment is affirmed. ceive the public and lead them to suppose they 2. TRADE-MARKS AND TRADE-NAMES 97- of its trade-name and abbreviations thereof. 3. TRADE-MARKS AND TRADE-NAMES 97- That one guilty of imitating the registered trade-name of another, has discontinued the practice ten months before suit brought, does not destroy the right of the owner of the tradename to an injunction, where defendant on notice to discontinue the practice had promised to do so, but had not acted in good faith, but continued the wrongful practice and contested the suit for infringement, offering evidence in support of their answer that they had not been using plaintiff's trade-mark or injuring his busi INFRINGEMENT REMEDIES INJUNCTION. In a suit to restrain defendant from unfair trade competition, a decree restraining defendants from selling or offering for sale parts for use in stoves manufactured by plaintiff without informing the purchaser that they were not manufactured by plaintiff is too broad, no question of patent rights being involved, since the manufacture of the articles in question without mark indicating that they were manufactured by plaintiff was within the rights of defendant. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. 97.] Appeal from Court of Common Pleas, Luzerne County. Bill in equity by the Scranton Stove Works against John B. Clark and another, doing business as the Luzerne Manufacturing Company, to restrain unfair trade competition. From a decree awarding an injunction, defendants appeal. Affirmed. it has used the name "Dockash," "Wyoming Dockash," and other trade-names, all of them having been registered as trade-marks and continuously used by plaintiff in connection with the manufacture and sale of its wares. The names are stamped in full on the stoves and ranges in plain letters, but abbreviated on certain smaller parts. In 1905 defendants purchased the property of the Luzerne Manufacturing Company and continued to conduct the business as copartners under that name. A large proportion of the firm's business consisted in casting and selling repair parts for the various makes and styles of stoves used in that region. On these parts appeared the identification marks contained on the genuine parts as manufactured by plaintiff, while other patterns were without marks. Plaintiff's bill is to restrain defendants from using its trade-marks and the representation that they were of plainprevent them from selling repair parts on tiff's manufacture. The court below entered a decree enjoining defendants and their agents and employés from selling or offering for sale parts of stoves or ranges manufactured and sold by plaintiff bearing the marks belonging to the latter, and also from selling or furnishing, in response to requests for repair parts, any part not manufactured by plaintiff, whether containing its trade-mark or not, without distinctly informing the purchaser that such parts are not of plaintiff's manufacture. From the decree so entered, defendants appealed. Appellants lay particular stress on the contention that the allegations of the bill are not broad enough to cover the decree in so far as it relates to the abbreviations of trademarks and unfair trade competition, and, as there was no evidence that defendants used the full trade-marks, the decree was improperly entered. An examination of the bill convinces us this view cannot be sustained. The third paragraph avers plaintiff in the manufacture of stoves and ranges has stamped its trade-marks thereon and has placed "abbreviations of the said trade-marks on the various parts of the stoves and ranges." The same paragraph then avers that by reason of the long-continued use by plaintiff "the same have become widely known to dealers and the public generally, and are associated in their minds with the said stoves and ranges and the parts thereof manufactured by complainant." The fifth paragraph avers defendants with intent to injure plaintiff's business and "to unfairly secure part of its established trade" manufactured large quantities of parts of stoves so like corresponding parts manufactured by plaintiff as FRAZER, J. Plaintiff corporation is en- to be indistinguishable therefrom, which they gaged in the manufacture of stoves and rang- are selling upon the false representation that es in the city of Scranton and for a period of they were manufactured by plaintiff. These many years has manufactured and sold stoves averments are ample to cover both infringeof a certain design in connection with whichment of trade-marks and unfair competition Argued before POTTER, STEWART, MOSCHZISKER; FRAZER, and WALL ING, JJ. G. J. Clark, of Wilkes-Barre, for appellants. R. W. Archbald, of Scranton, W. N. Reynolds, Jr., of Wilkes-Barre, and Walton Pennewill, of Philadelphia, for appellee. by acts tending to deceive the public, and thereby substitute defendants' goods for the products of plaintiff. Although it is not alleged the abbreviations used on the smaller parts of the stoves and ranges were themselves registered as trade-marks, there can be no doubt these abbreviations were effective as a means of identifying the articles and products of plaintiff's works, and that defendants' use of them, in casting duplicate parts, was calculated to deceive the ordinary purchaser into believing they were manufactured by plaintiff. parts from defendants for the purpose of In March, 1913, on discovering plaintiff was investigating their method of doing business and that proceedings would probably be instituted against them, defendants ceased manufacturing castings with plaintiff's mark on them and thereafter removed the imprints or letters from such parts in the process of making up the moulds. The method used by defendants in imitating, the various pieces was to take a genuine part manufactured by plaintiff and use it as a pattern to make an impression in sand, thus forming a mould into which molten iron was poured to make the casting. In this manner the design on the original article was reproduced on the copy. The removal of plaintiff's mark on the part was accomplished by "smoothing down" the imprint in the sand made by the lettering before pouring the molten iron into the [1] To constitute an infringement of a trade-mark a literal copy is not necessary. The test is whether the label or mark is cal-manufactured by plaintiff. culated to deceive the public and lead them to suppose they are purchasing an article manufactured by a person other than the one offering it for sale. Pratt's Appeal, 117 Pa. 401, 11 Atl. 878, 2 Am. St. Rep. 676. The same principles apply to unfair trade competition. "The general rule is that anything done by a rival in the same business by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another's manufacture, would be in fraud on that other's rights, and would afford just ground for equitable interference." Juan F. Portuondo Cigar Mfg. Co. v. Vincente Cigar Mfg. Co., 222 Pa. 116, 132, 70 Atl. 968, 973. A fraudulent intent in such cases need not always be shown. "There are two classes of cases involving judicial interference with the use of First where the intent is to get an unfair and fraudulent share of another's business; and, second, where the effect of defendant's action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the complainant. In both cases courts of equity administer relief without regard to the existence of a technical trade-mark." American Clay Mfg. Co. V. American Clay Mfg. Co., 198 Pa. 189, 193, 47 Atl. 936, quoted in Suburban Press v. Phila-contend no occasion exists for the entry of a delphia Suburban Publishing Co., 227 Pa. 148, 75 Atl. 1037. Tested by these principles the bill in the present case is sufficiently broad to warrant the relief asked for, consequently it becomes unnecessary to decide whether the use of the abbreviations should be regarded as a technical infringement of plaintiff's trade-mark. names: [2] A consideration of the findings of the court below and the evidence in the case mould. [3] Defendants, in their answer, aver that since March, 1913, no parts bearing plaintiff's marks or abbreviations have been manufac tured or sold by them, and that they have no intention of manufacturing or selling in the future parts on which plaintiff's trade-marks or abbreviations appear. The present bill was filed January 8, 1914, about ten months subsequent to the time defendants say they ceased using plaintiff's marks, and they now decree or injunction restraining them from To sustain them in this position defendants rely on several federal court cases. In Sewall & Day Cordage Co. [C. C.] 142 Fed. one of which (Dodge Manufacturing Co. v. 288) the use of plaintiff's trade-mark had been immediately discontinued on request. shows a clear violation of plaintiff's rights In Ferguson-McKinney Dry Goods Co. v. J. A. by defendants. A purchaser who came to Scriven Co., 165 Fed. 655, 91 C. C. A. 491, defendants' store to buy a "Dockash" water more than two years had elapsed between the front, for example, was given a correspond- discontinuance of the use of plaintiff's tradeing part manufactured by defendants and mark and the filing of the bill. In Van Raalt bearing the same marks or initials used by v. Schneck (C. C.) 159 Fed. 248, defendant in plaintiff. Beyond dispute this general prac- good faith believed himself to be entitled to tice continued for a considerable time, and the use of the mark in question, and, upon an during the year 1912 plaintiff sent a number adverse decision by the patent office, promptof its agents, at various times, to purchase | ly filed a disclaimer and executed a release 1 |