that his trade-marks infringed the trade-marks | for an account and for the supposed gains and of the complainant. profits being erroneous, the respondent, as appellant, is entitled to costs in this court. Browne, Tr. M., sec. 497. Decree as to the injunction and costs in the Circuit Court is affirmed, but it is reversed as to the decree for an account and as to the allowance for gains and profits, with costs in this court for the appellant; and the cause is remanded with direction to enter a decree in conformity with the opin Proofs were taken upon both sides upon the subject; and the respondent, in his petition for rehearing filed in the court below, expressly alleges that the immediate predecessor of the complainant was perfectly familiar with the pills manufactured by the respondent, and well knew that the respondent used the labels in question; that the agent of the complainant, May 20, 1872, called on the respondent and re-ion of this court. monstrated with him for using the label, Exhibit K, and that he on the following day adopted a different label, as therein fully explained. Examined in the light of these suggestions, the court is of the opinion that the question presented in the second assignment of error is open for re examination. Sullivan v. R. R. Co. [unte, 324]. Cited-101 U. S., 64; 8 Biss., 331; 4 Cliff., 478, 488; 4 Hughes, 250, 251; 50 Md., 597; 33 Am. Rep., 330; 129 Mass., 328; 37 Am. Rep., 365. GEORGE M. WHEELER, Piff. in Err.. Repetition of the facts is unnecessary, as it THE sufficiently appears that the respondent has been engaged in preparing and selling his pills for more than forty years; that, during that period or more than half of it, he has been using labels and trade-marks corresponding more or less to those used by the predecessors of the complainant, some of whom, during all or most of that time, knew what the labels and trade-marks were which were used by the respondent, the evidence to that effect being full and decisive. Negotiations took place at one time between the respondent and one of the predecessors of the complainant for an interchange of commodities, with a view that both commodities might be sold at each of their respective places of busi ness. v. UNION NATIONAL PITTSBURG. BANK OF (See S. C., 6 Otto, 268-270.) National bank-exchange-forfeiture. 1. A national bank has the right to charge and rein addition to interest at the rate fixed by general ceive the current rate of exchange for sight drafts, statute of the State. 2. A forfeiture under the provisions of the Nathe facts upon which it must rest are clearly estabtional Currency Act should not be declared, unless lished. [No. 263.] Argued Apr. 16, 1878. Decided Apr. 29, 1878. Evidence of a decisive character is exhibited IN ERROR to the Superior Court of the City in the record to show that the complainant or his predecessor knew throughout what description of labels and trade-marks the respondent was using; and it does not appear that any objection was ever made, except as heretofore stated and explained. Once, the respondent was requested to insert the initials of his Christian name before his surname in the label; and it appears that he immediately complied with the request. Cases frequently arise where a court of equity will refuse the prayer of the complainant for an account of gains and profits, on the ground of delay in asserting his rights, even when the facts proved render it proper to grant an injunction to prevent future infringement. Harrison v. Taylor, 11 Jur. (N. S.), 408; Cox, Tr. M., 541. Relief of the kind is constantly refused, even where the right of the party to an injunction is acknowledged because of an infringement, as in case of acquiescence or want of fraudulent intent. Moet v. Couston, 33 Beav., 578; Edelsten v. Edelsten, 1 De G., J. & S.,185; Millington v. Fox [supra]; Wyeth v. Stone, 1 Story,284; Beard v. Turner, 13 L. T. (N. S.), 747; Estcourt v. Estcourt, etc., Co., L. R., 10 Ch. App., 276; Coddington, Dig., 162; High, Injunc., 405. Acquiescence of long standing is proved in this case, and inexcusable laches in seeking redress, which show beyond all doubt that the complainant was not entitled to an account nor to a decree for gains or profits; but infringe. ment having been proven, showing that the injunction was properly ordered, he is entitled to the costs in the circuit court; but the decree and County of New York. The case is stated by the court. Mr. Thomas M. Wheeler, for plaintiff in error. Messrs. E. Ellery Anderson and Joseph M. Dixon, for defendant in error. Mr. Justice Harlan delivered the opinion of the court: The controlling question presented in this case for our determination involves the construction of the National Currency Act of June 3, 1864, 13 Stat at L., 108, which declares that "The knowingly taking, receiving, reserving or charging a rate of interest greater" than that "allowed by the laws of the State or Territory where the Bank is located," shall be "held and adjudged a forfeiture of the entire interest which the bill, note or other evidence of debt carries with it, or which has been agreed to be paid thereon." The same section also declares: "But the purchase, discount or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts in addition to the interest, shall not be considered as taking or receiving a greater rate of interest." Wheeler, the plaintiff in error, was sued as indorser upon two bills of exchange, drawn at Brady's Bend, Pennsylvania, payable sixty days after date at the American Exchange Bank, in New York, and discounted by the Union National Bank of Pittsburg for the benefit of the Farm. & Mech. Nat. Bk. v. Dearing, 91 U. S., 4. The court is not bound, at the request of counsel, to give as instructions philosophical remarks in the abstract, or however high the source from copied from text books, however wise they may be which they come. [No. 249.] Argued Apr. 10, 1878. Decided Apr. 29, 1878. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois. Brady's Bend Iron Company, a corporation cre- | formance by defendant could have been required ated under the laws of Pennsylvania. Wheeler by plaintiff within a year the contract is valid. McPherson v. Cox [ante, 746]. claims that the Bank, under the provisions of 2. When a contract for the delivery of stone exists the statute, forfeited the entire interest which only in parol, a subsequent verbal agreement varythe bills carried, or which was agreed to be paid. ing the manner of delivery is binding. This claim was denied: first, in the Superior jury, as to the circumstances under which the de3. The comments of the judge in his charge to the Court for the City and County of New York, fendant might be entitled to damages against where this action was commenced; and subse- plaintiff, cannot be a ground of error, when there was no such issue, and when the remarks could not quently, in the Court of Appeals of that State. have prejudiced the defendant. No question having been raised as to the bona fide character of the bills, the Bank had by the express words of the statute, the right to charge and receive the current rate of exchange for sight drafts, in addition to interest at the rate of six per cent. per annum, which is the rate fixed by general statute in the State of Pennsylvania. But, upon examining the special find. ing of facts upon which the state court based its judgment, we discover no evidence of the current rate of exchange at the date of discount. That exchange was, in fact, charged, cannot be gainsaid by Wheeler, since he avers, in his answer, that the bills were discounted under an usurious agreement that the Bank should receive, in addition to certain interest in excess of the statutory rate, commissions or exchange of one quarter of one per cent. No such agreement was, however, proven. Indeed, the record furnishes no evidence of any distinct agreement either as to the amount of interest or exchange to be reserved by the Bank upon discounting the bills. Nothing seems to have been said at the time of discount as to the amount to be reserved by way of interest or upon the subject of exchange, and the court refused, upon the request of Wheeler, to find it as a fact in the case, that "no exchange was charged." While it may be inferred that exchange was charged by the Bank, we are uninformed by the record whether it exceeded the current rate for sight drafts. The court erred in refusing to give the instructions in reference to the Statute of Frauds, requested by the defendant below, Walker, and in giving the instructions which the court gave upon that subject. The Farwell, Lake and Walker contract provided for delivery "on board of canal-boats at Henry," and that cost of tonnage should be borne by the parties. So it was contemplated that the delivery should be by water, which not only involved the suspension of delivery during the winter, but also during low water in the Illinois River during the summer, the boats being taken to La Salle by canal, and from La Salle to Henry by river. The provision of the Illinois Statute of Frauds bearing on this question was, that "No action shall be brought whereby to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The statute should be liberally construed to effect the ends for which it was passed; but a forfeiture under its provisions should not be de-action shall be brought, or some memorandum clared, unless the facts upon which it must rest are clearly established. It should appear affirm atively that the Bank knowingly received or reserved an amount in excess of the statutory rate of interest, and the current exchange for sight drafts. There is no proof of the rate of exchange; and since the courts uniformly incline against the declaration of a forfeiture, the party seeking such declaration should be held to make convincing proof of every fact essential to forfeiture. It is unnecessary to consider any other question in the case. The judgment must be affirmed. EDWIN WALKER, Piff. in Err., V. WILLARD JOHNSON. (See S. C., 6 Otto, 424-429.) Statute of Frauds-contract to be performed with in a year-charge to jury-requests. *1. To make a parol contract void within the Statute of Frauds, it must appear affirmatively that it was not to be performed within a year. If per*Head notes by Mr Justice MILLER. R. S., 1845, ch. 44, sec. 1258; Gross. Stat. 1868, 316. It is conceded that the agreement in the case at bar was not in writing. See, Browne, Statute of Frauds, secs. 279, p. 281; 283, p. 285. The possibility of performance within the year contemplated by the Statute, must necessarily be a possibility of performance according to the terms of the contract, and in accordance with its provisions unchanged, and not the possibility of performance by waiving its provis ions, and modifying its terms so as to change it from one not to be performed within the year to one to be performed within that period. Packet Co. v. Sickles, 5 Wall., 580 (72 U. S., XVIII., 550); Boydell v. Drummond, 11 East, 142. The court erred in that portion of the charge relating to a change of contract from delivery by water to delivery by rail. Thurston v. Ludwig, 6 Ohio St., 1; Goss v. Nugent, 5 B. & Ad., 65; Lattimore v. Harsen, 14 Johns., 330; Munroe v. Perkins, 9 Pick.,298; Crowley v. Vitty, 7 Exch., 319; Payne v. New S. W. C. Co., 10 Exch., 291; Hunt v. Barfield, 1877. WALKER V. JOHNSON. 19 Ala., 117; Adams v. Nichols, 19 Pick., 275; Gerhard v. Bates, 2 El. & B. (75 Eng. C. L.), 486. Messrs. Jno. L. Thompson and Francis Kernan, for defendant in error: We respectfully submit that the law as to the Statute of Frauds is stated by the court as favorably for the plaintiff in error as he had a right to ask. See, note to Dobson v. Collis, 1 Hurls. & N., 81, and cases cited; White v. Murtland, 71 Ill., 250; Kent v. Kent, 62 N. Y., 564; Marley v. Noblett, 42 Ind., 85; Larimer v. Kelley (second case), 10 Kansas, 299; Gault v. Brown, 48 N. H., 183; Peters v. Westborough, 19 Pick., 365; Blake v. Cole, 22 Pick., 99; Somerbey v. Buntin, 118 Mass., 286; Blair Town Lot Co. v. Walker, 39 Iowa, 410; Greene v. Harris, 9 R. I., 401; Hodges v. Mfg. Co., 9 R. I.,487; Souch v. Straw bridge, 2 C. B., 811, where the application of the Boydell case is limited as above suggested; Plimpton v. Curtiss, 15 Wend., 336; Browne, Stat. Frauds, sec. 281; Peter v. Compton, 1 Smith, L. C., 432, where many authorities are collected, and the principle fully illustrated. If the first contract is within the Statute of Frauds, it may well be that a subsequent modification of the contract would not have the effect to take it out of the Statute. But that a valid parol contract may not, during its performance, be modified in some of its details by agreement of parties, is a doctrine which finds no countenance in the decisions of the courts of Illinois. Low v. Forbes, 18 Ill., 568; Cooke v. Murphy, 70 Ill., 96; Bishop v. Busse, 69 Ill., 403; Car rier v. Dilworth, 59 Pa., 406; Hill v. Smith, 34 Vt.,535; Munroe v. Perkins,9 Pick.,298; Mason v. U. S., 17 Wall., 67 (84 U. S., XXI., 564). Mr. Justice Miller delivered the opinion of the court: On the 21st day of July, 1869, Edwin I. Sherburne, Edwin Walker and Charles B. Farwell, entered into a written contract with the Canal Commissioners of the State of Illinois, for the construction of a lock and dam in the Illinois River, near the City of Henry, in which they agreed to commence the work on or before the first day of August, 1869, and complete it by the first day of September, 1871. Sherburne shortly after assigned his interest in this contract to James K. Lake, and Lake, Farwell and Walker assigned the same, with the approval of the commissioners, to Willard Johnson, plaintiff below. But while Farwell, Lake and Walker were the contractors, they made an agreement between themselves, in writing, by which, among other things, Walker was To furnish all the stone necessary for the construction of the lock and dam, to be by him delivered on board of canal-boats at Henry, as the same might be required in the progress of the work, to be of the description required for said work;" and the prices that he was to receive for the various kinds of stone so delivered were settled. It is alleged by Johnson, that, after the contract with the commission ers had been assigned to him, Walker agreed with him to furnish the stone for the work in the same manner and on the same terms as in this contract with his former partners. And that, by reason of his failure to do so, he, the plaintiff, was greatly damaged; and for that he of error. The errors assigned relate exclusively to exceptions taken to the charge of the judge, and to his refusal to charge as requested by the defendant. We will consider these in their order. The first error arises upon the proposition of defendant, that the contract, being one not to be performed within a year from the time it was made, and resting only in parol, was void, and could not sustain the action. Evidence was given which tended to show that the agreement between plaintiff and defendant was made early in November, 1869, and renewed or modified in April, 1870. As by the terms of the original contract with the canal commissioners the work was to be completed on or before September 1, 1871, defendant insisted that his contract for delivery of stone had the same time to run; and his counsel asked the court to instruct the jury that it was void, if it appeared from the Farwell, Lake and Walker contract that it was not the intention and understanding of the parties that the same should be performed within the space of one year from the making of the verbal agreement between plaintiff and defendant. The court refused this instruction, and told the jury that if it appeared from the contract itself that it was not to be performed or was not intended to be performed within a year, it was void: but that if it was a contract which might have been performed within a year, and which the plaintiff, at his option, might have required the defendant to perform within a year, it was not within the statute. We think the court ruled correctly, both in what it charged and in what it refused. 1. In order to bring a parol contract within the statute, it must appear affirmatively that the contract was not to be performed within the We have had occasion to examine this year. question very recently in the case of McPherson v. Cox, decided at the present Term [ante, 746]. We said, in that case, that the statute "Applies only to contracts which, by their terms, are not to be performed within the year, and not to contracts which may not be performed within that time." The court said, in regard to that case, which was a contract by a lawyer to conduct a suit in court, that there was nothing to show that it could not have been fully performed within a year. So, in this case, the lock and dam were to be completed on or before September 1, 1871. Clearly, the contractor had the right to push his work so as to finish it before November, 1870, which would have been within a year from the date of Walker's contract with plaintiff. If plaintiff had a right to do his work within that time, he had a right to require defendant to deliver the stone necessary to enable him to do it. There is no error in the action of the court on this branch of the subject. 2. It will be observed that, by the agreement of Walker with his partners, he was to deliver at Henry in canal-boats. Evidence was given tending to show that, in the spring of 1870, it was agreed between him and plaintiff that he should deliver by railroad; and the court charged the jury that it was competent for the parties 835 to change the contract in that regard, if they the contract is renewed or the abandonment chose; and that if the jury found that defendant waived. It is explicitly stated by plaintiff that did so agree, he was bound by such agreement defendant agreed to recommence the delivery of as he made, if any. stone and complete the contract. Whatever else this may be, it is no admission. This word in the sense of the quotation from Greenleaf, asked by counsel as a charge, means an admis sion by a party of some existing fact or circumstance which tells against him in the trial, and does not relate to the terms in which a substantive verbal contract is made by the parties. We think that as the original contract was in parol, there is no reason why, if the parties for their mutual convenience, or for no good reason at all, chose, both of them consenting to a delivery by rail, that the change in the mode of delivery became a part of the contract. 3. There was evidence tending to show that, while defendant was performing part of the contract, he received notice from plaintiff that he would take no more stone from him; and also evidence that shortly after this, the parties had an interview, in which this notice was waived, and Walker agreed to go on with the contract. On this part of the case the court said: Besides, it is apparent that the attention of the jury was directed by the court to all the matters essential to their understanding the case; and we do not admit that a court is bound to give to the jury, at the instance of counsel. every philosophical remark found in text books of the law, however wise or true they may be in the abstract, or however high the reputation of the author. "If the testimony satisfies you that the defendant did, after the notice of the 12th of May, recognize the contract as still in force, and promise the plaintiff that he would go on and comment of the Circuit Court is affirmed. plete the same, the pefendant cannot now claim as a defense to this action that said notice released him from the performance of the contract. We find no error in the record, and the judg Cited-5 Dill., 28. THE MAINE CENTRAL RAILROAD V. STATE OF MAINE. (See S. C., 6 Otto, 499-513.) solidation. If, on the contrary, you are satisfied that the defendant made no agreement after the notice to stop, on the 12th of May, recognizing the contract as still in force, or promising to perform it or continue it in force, then the defense may be considered made out, although the notice to suspend might entitle the defendant to Taxation of railroads—waiver of exemption—condamages; but I do not think it necessary to discuss the question of the defendant's damages." The court, however, did, in answer to a suggestion of counsel for defendant, that the latter would have a right to damages for the with. drawal of the contract by plaintiff, proceed to make some remarks on that subject, to which defendant excepts and which he now assigns for error. panies, there was a clear conditional limitation upon 1. Where, in the charters of two railroad comthe power of the State to tax them, and by a voluntary consolidation of the two companies into one, the conditions, upon the performance of which the they disabled themselves from a compliance with limited amount to be paid as a tax to the State could be ascertained, they must be considered as having waived the exemption dependent upon such performance. We do not see anything in these remarks to 2. A new corporation may be as readily created by complain of, except that they were irrelevant the union of two or more corporations as by the orto any issue in the case. There was no plea organization of individuals; and its powers and privicross demand under which those damages could charters of other companies as by special enumeraleges may as well be designated by reference to the have been passed upon by the jury. As they tion. in nowise prejudiced defendant in the present action, we are not called on to consider further their soundness as matter of law. 4. The court was asked to instruct the jury "That verbal admissions, while, if deliberately made and precisely identified, they frequently furnish satisfactory evidence, are to be received with great caution; and the attention of the jury should be directed, in passing upon alleged verbal admissions, to whether the witnesses testifying thereto distinctly understood the party charged in what he said, and whether they have or have not, intentionally or unintentionally, failed to express what was actually said." But the court refused said instruction. This is the ground of the last assignment of error. of two others, held to be subject to the provisions Argued Apr. 4, 1878. Decided Apr. 29, 1878. The case is stated by the court. Mr. Josiah H. Drummond, for plaintiff in error: It is claimed that if the Androscoggin & Kennebec R. R. Company and the Penobscot & Kennebec R. R. Company had an immunity from taxation, it lost it when it consolidated under the Act of April 1, 1856, and became the Maine Central Railroad Company. There is nothing in the testimony, as we find it in the bill of exceptions, to which such a charge could apply. There are no admissions, The consolidated corporation, however, has properly so called, of defendant relied on in the all the powers, privileges and immunities poscase. The testimony in regard to the renew-sessed by each of the corporations so entering al of the contract after plaintiff's letter to defendant, that he would receive no more stone from him, is not an admission; it is a conversation between plaintiff and defendant, in which into said agreement, etc. Tomlinson v. Branch, 15 Wall., 460 (82 U. S., XXI., 189); Delaware R. R. Tax Case, 18 Wall., 206 (85 U. S., XXI., 888); Branch v. 1877. MAINE CENT. R. R. Co. v. MAINE. Charlestown,92 U.S., 677 (XXIII., 750); R. R. & | singular the rights, franchise and interest of the As both the consolidating Companies had the exemption in their charters, the consolidated Company continued to have it, unless the case can be taken out of the class of cases just cited, and it be shown that these decisions do not apply to it. But it is further claimed, that, by the merger in the Maine Central Railroad Company, under the Act of 1873, of certain other companies, which confessedly did not have this immunity from taxation, the Company lost all its immunity from taxation, if it had any. This is inconsistent with the fact that the charter of the Company, by virtue of which it controls any given portion of its railroad, is the charter of the Company which originally constructed that particular portion. In other words, the present charter of the Maine Central Railroad Company consists of the several charters of the original Companies which are now consolidated and merged into Its rights, powers and the present Company. privileges, as to any particular portion of its railroad, must be determined from these charters and not from the act of consolidation. Its right to prescribe rates of toll, to maintain its railroad, to cross highways, to hold the estate taken for the construction of its railroad, and the manner in which these various rights may be exercised necessarily depend upon the origi nal charters. R. R. Co. v. Va. (ante, 310). But it is also claimed that, by accepting the Acts of 1856 and 1873, the Company subjected its charters to the Act of 1831, giving the Legislature power to alter and amend them at pleas ure. The Statute of 1831 was in derogation of the common law and, therefore, must be strictly construed. 1. The Statute of 1831 is limited, in its effect, to Acts of incorporation; and we hold that the Act of 1856 was not an Act of incorporation, within the meaning of the term in the Statute of 1831. An Act of incorporation was then understood to be the granting of a franchise from the State to a body created by its authority. The Act of creation and grant was called a charter. But in this case, the 1st section (Webb's Railroad Laws, 300) provides that the corporations are authorized, at any time, to consolidate such companies into one corporation. Sections 2 and 3 provide for making the agreement of consolidation, and its ratification by the stockholders. The Act is not an Act of incorporation, because it does not create a body corporate, but merely authorizes two bodies corporate, already existing, to unite in one; and does not grant a franchise, but merely provides that, by the consolidation, the franchises of the two corporations shall thereby, eo instanti, be transferred to and vested in the consolidated corporation. It is true that the Act uses the term "new corporation," but it uses the term to distinguish the consolidated corporation from those composing it. In that sense it is a new corporation, but not in the legal sense. No new franchise was granted. Morgan v. La., 93 U. S., 217, 223 (XXIII., 860, 861). No franchise of the consolidated Company can be named that did not come to it from one of the original corporations, and we seek in vain, throughout the Act of 1856, for a single franchise, as above defined, created or conferred by that Act. But we hold also, that even if the Act of 1856 can be held to be an Act of incorporation, within the meaning of the Statute of 1831, the immunity from amendment of these charters, contained in section 17 thereof, continued in the new Corporation; and that the case of Shields v. Ohio, decided at the present Term (ante, 357) does not conflict with, but rather sustains, this proposition. Let it be remembered that the Statute of 1831, relied upon by the State in this case, is not, like that in the Shields case, a constitutional provision; but that it was just as competent for the Legislature of 1856 to grant a charter with immunity from legislative control, as it was for the Legislature which granted these charters. In the Ohio case, the Legislature could not have done it, if it would; and if the language of the Act was expressly to that effect, it must have been held to be in conflict with the Constitution and, therefore, void. Applying this language of the court to the present case, and admitting, for the sake of giving the opposite argument its full force, that this was a grant creating a new Corporation, the grant is of the two old charters as they stood with the 15th and 17th sections still in them. By section 4, of the Act of 1856, it is expressly provided "That nothing in this Act shall be construed as extinguishing said consolidated Corporations, or annulling these charters." See, Webb's Railroad Laws, 301. It goes further, and provides that they shall be "Regarded as still subsisting so far as their continuance for the purpose of upholding any right, title or interest, power, privilege or immunity ever possessed, exercised or enjoyed by Section 4 (p. 301) provides that, on the fil- either of them, may be necessary for the proing of the agreement, etc., "The said corpora-tection of the creditors, etc., tions so making said agreement shall be consoli- such new corporation." dated, and together constitute the new corporation provided for in said agreement.' Section 5 (p. 302) provides that, upon the election of the Board of Directors, "All and * * * or of These provisions bring the case within the scope of the decision in the Georgia case, 92 U. S. (XXIII., 757), rather than of the decision in the Shields case. 837 |