mony brought out by complainant from the defendants whom he called upon to testify. The fact that the Coonrod mortgage does not come within the exception of the statute, that is, that it was not placed upon record in the proper office for recording deeds, at the time, or prior to the recording of the Howlett mortgage,-is indisputable, and the priority of record must control the priority of lien, as between these two mortgagees. The complainant, however, further contends that the savings institution had notice of the Coonrod mortgage, before it took the assignment of the Howlett mortgage, and before it paid its money, and that this fact was enough to put the savings institution upon inquiry in regard to the Coonrod mortgage. It is not contended that the savings institution had actual notice of the facts in regard to the execution and delivery of the Coonrod mortgage, or that it was a participant in any actual fraud. The sole contention is, that its attorney, in making a search of the records for the condition of the Booth title, prior to its taking the assignment of the Howlett mortgage, or paying a consideration therefor, must have discovered upon the record the Coonrod mortgage, dated May 1, 1899, and recorded May 6, 1899, three days after the record of the Howlett mortgage. As to this contention, we need only say that the counsel who made the search, and the savings institution, were justified in standing upon the priority of lien that presumptively attaches to priority of record, and when complainant failed to show that the mortgagee of the mortgage, of which it took the assignment, had not paid a valuable consideration, or that he had notice of this prior mortgage, its rights under the assignment were secure, and it stood in the shoes of the mortgagor. Assuming that the presumption of innocence on the part of Howlett, as mortgagee of the subsequent mortgage, either as to the payment of valuable consideration or as to notice, has not been overthrown, as in this case it has not been, then, even if the savings institution, upon inquiry, had discovered the real fact as it existed, to wit, that the Coonrod mortgage had been delivered a few hours prior to the execution and delivery of the Howlett mortgage, it would still hold the title of its innocent assignor. It should be observed, however, in this connection, that the mere disclosure upon the records in the office of the county clerk, that the Coonrod mortgage, though not placed upon record until May 6, 1899, was dated May 1, 1899, did not show or even tend to show that the Coonrod mortgage was actually delivered by the mortgagor to the mortgagee prior to the execution and delivery of the Howlett mortgage, or to the 3d of May, the date of record of the latter. No presumption arose from its date of May 1, 1899, that it was delivered and became a deed upon that day. As a matter of fact, we have seen that it did not become such until the 3d of May, the very day upon which the Howlett mortgage was made, and, according to the testimony, only about two hours before the delivery of that mortgage. far as anything in the record of the mortgage was concerned, it might have been delivered two hours after the Howlett mortgage, or three days after. So It remains for us to consider the only other question in the case, namely, is the appellant, under the facts disclosed, entitled to be sub rogated as against the respondent (the Dime Savings Institution) to the rights of the Mutual Life Insurance Company of New York, in its mortgage, as they existed at the time it was paid off? Howlett knew of the existence of the Mutual Life Insurance Company's mortgage at the time he took his mortgage from the Booths, and if the question of subrogation was against him alone, a different case might be presented. But we are dealing here with an assignee, whom the record shows to have been an assignee in good faith for valuable consideration and without notice. In fact, it was notified by Howlett, and the records of Somerset county corroborated his statement, that the Mutual Life Insurance Company mortgage had been canceled some weeks before the assignment to it. It was entitled to rely on the condition of the records as disclosed at the time of the assignment, and should not be defeated or prejudiced by a latent equity. No negligence is chargeable to the Dime Savings Institution in taking the assignment. It carefully examined the records, and, as we have shown, found nothing there to even put it upon inquiry as to the Coonrod mortgage. It would be unjust and contrary to public policy, as expressed in the statutes governing the record of deeds, that one who had taken an assignment under such circumstances, should be prejudiced without fault on his part. On the other hand, Coonrod was clearly negligent in not sooner recording his mortgage, of which he had delivery on the 3d of May, and in not examining the records up to the time that he lodged his mortgage for record in the office of the clerk of Somerset county. If he had made such examination, he would have discovered the mortgage of Howlett, and he would at least have refrained from paying off or having canceled the mortgage to the Mutual Life Insurance Company. This latter was his voluntary act, and was one which the respondent was justified in acting upon. The familiar rule in equity is applicable here; that where one of two innocent parties must suffer by the fraudulent conduct of a third, the one who has, by his negligence or omission to do something that a prudent man under the circumstances should do, enabled the fraud to be committed, must suffer the loss occasioned thereby. The decree of the court below is affirmed. POSTUM CEREAL CO., Limited, v. AMERICAN HEALTH FOOD CO. (Circuit Court of Appeals, Seventh Circuit. October 21, 1902.) 1. TRADE-MARKS-INFRINGEMENT. No. 873. The trade-mark "Grape-Nuts," adopted as the name of a cereal food preparation, is not infringed by the name "Grain-Hearts," used to designate a similar product. 3. SAME-UNFAIR COMPETITION. The labels and packages used by complainant for its cereal food preparation, "Grape-Nuts," and those used by defendant for its similar product, 12. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376. "Grain-Hearts," compared and taken as a whole, held so dissimilar in appearance that purchasers of ordinary intelligence, using ordinary attention, would not be likely to be misled into purchasing one for the other, and that defendant could not be charged with unfair competition in the absence of evidence that purchasers had actually been deceived. Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin. The appellant, complainant below, filed its bill alleging the pirating by the defendant below, appellee here, of its trade-mark, and also of unfair competition in trade, with respect to the placing upon the market and sale of a certain cereal preparation designated "Grape-Nuts." The bill charges substantially that the complainant was possessed of a certain secret formula for a food product composed of wheat and barley, of distinctive appearance in texture and color, of a peculiar brownish color, of granular form, and of a crisp and brittle texture, easily masticated and readily soluble in water, and quickly digested, to which it had given the name "Grape-Nuts," as indicating the origin and source of manufacture. This name was placed upon the labels and packets containing the product in the form of a compound word connected by parallel hyphens, and appearing upon substantially plain type in light color upon a dark band extending across the label or package. Above this word are the words "Fully Cooked, Pre-Digested," and also the words "Dextrose and Grape Sugar." Below are the words "A Food for Brain and Nerve Centres." The word and trade-mark "Grape-Nuts" was registered June 14, 1898. The declaration in the statement for registration contains the following: "Upon the edge of the package appear the words, in plain black type, 'Genuine Grape-Nuts,' in connection with the autograph of C. W. Post. The entire printed matter, with the exception of the words 'Grape= Nuts,' is printed in black upon a yellow or buff colored label which envelopes the package containing the food, 'Grape-Nuts' appearing in yellow or buff like the label; but the color of the label, the style and color of type, and the various items of printed matter and other accessories above referred to, may be varied at pleasure or altogether omitted, without materially altering the character of the said trade-mark, the essential feature of which is the words 'Grape-Nuts.'" The bill also alleged that the product was placed upon the market in packets of "peculiar form, size, shape, capacity, and material, the packages having thereon a peculiar label, both in color of background, in color of type and literary matter, and arrangement thereof, namely, an angular six-sided box, about five inches in height, about four inches in width, and about two inches in thickness, having a label covering the entire six sides thereof, the background of which label is a light yellow, and has entirely extended across the back and front sides thereof a dark band about seveneighths of an inch wide, and having thereon the double-hyphenated words 'Grape-Nuts' in plain light type, on one side of both of which bands appear among other things the words 'Fully Cooked, Pre-Digested,' 'Dextrose and Grape Sugar.' 'Made by Special Treatment of entire Wheat and Barley.' And on the other side of which band appear the words 'A Food for Brain and Nerve Centres.' The hyphenated words 'Grape-Nuts' or 'Grape-Nut' also appearing upon all sides of said packet, and, with the exception of the word and trade-mark 'Grape-Nuts' on said bands, said bands and words and literary matter in blue ink on such light yellow background." The bill charged that the defendant below, appellee here, had produced and placed upon the market a food product substantially identical in texture, color, and other peculiarities to the product designated as "Grape-Nuts." and designated and labeled with the double-hyphenated word “Grain=Hearts" in plain type, in like color, and extending across the label and package. "Which hyphenated word, with such light type and dark band, your orator is informed and believes, and therefore avers, are so similar in appearance, sound, and arrangement that they are calculated to deceive and do deceive the ordinary purchaser into purchasing the defendant's product, believing it to be the genuine product of your orator; that the packages in which the product of defendant is put upon the market are identically of the same form, size, 119 F.-54 * and capacity as those of the complainant, inclosed by a label in the same manner as in complainant's patent, with the same peculiar yellow background as the label of the complainant, with printed matter thereon in blue ink, and of substantially the same context and arrangement as the complainant's, and in the same, or substantially the same, colors and style of lettering." The answer denied that the complainant originated the particular form, and contrasting labels, colors, letters, style of letters, and wording thereon, used upon its packages; denied that it originated the formula under which the food product was manufactured, or the form and particular size and capacity of packets for containing the food product; denied that the lettering and the arrangement and color were unusual; but alleged that the size and form of the package for different products are governed by considerations of the cost thereof to the manufacturer; that the thick paper or cardboard from which cartons or packets are made, such as are used by the complainant and by the defendant in putting up and marketing their several products, are furnished by the paper mills, of a standard, arbitrary, and uniform size, being governed by the weight of a pound package of the product, to conform to the settled habits of the trade to sell food products in one-pound packages. or in packages containing a fractional multiple of a pound weight. The face of the complainant's package is here reproduced. [See Fig. 1.] The back of the packet is substantially the same, except that directions for use are substituted for the imprint below the words, "A Food for Brain and Nerve Centres." Each end of the carton has printed thereon in black lettering upon yellow ground the following: "Genuine Grape-Nut Packages have the signature of the originator on the ends of each package, C. W. Post." One side of the carton has printed thereon "Directions for Use," the other a recommendation to athletes and brain workers, and with respect to the supposed virtues of the cereal product; all appearing in black lettering upon a yellow ground. The face and back of the defendant's package are alike, and are here reproduced. [See Fig. 2.] Each end of the carton has printed thereon upon yellow ground the oblique blue band upon the red heart, with the double-hyphenated compound word in white letters "Grain = Hearts," and above and underneath the band the words in black lettering "Only the Genuine Have This Trade-Mark." One end of the carton has upon yellow ground the oblique blue band upon the red heart near the top of the carton, with the double-hyphenated word "Grain= Hearts" in white lettering, and above it in black ink the words, "Cooked Ready for Use," "A Brain and Nerve Food," and below it in black ink the words. "A Perfect Food for Athletes," following which are directions for use. The other end has the same imprint of a red heart and oblique blue band and trade-name, with the words above it in black ink, "Ready for Use. Nutricious. Delicious," and below, in like ink, "A Great Brain, Nerve and Muscle Food, containing all the known food elements, a very economical Food," and directions for use. At the hearing the bill was dismissed for want of equity. (C. C.) 109 Fed. 898. From the decision dismissing the bill for want of equity, the complainant below appealed to this court. Philip Mauro and George W. Mechem, for appellant. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. JENKINS, Circuit Judge. We have so often spoken to the subject of unfair trade, and the law upon that subject is so well established by the repeated decisions of the ultimate tribunal and of the various circuit courts of appeals, that reference to the decisions would be superfluous. The principle is settled that: "One may not legally use means, whether marks or other indicia, or even his own name, with the purpose and to the end of selling his goods as the goods of another. If such means tend to attract to himself the trade that |