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THE GREEN BAG
machinery was received at the depot or warehouse, would convert the contract of warranty into simply a waiver of warranty and give the pur chaser no benefit whatever." This case is far from satisfactory from a logical standpoint. It seems to be one of those cases where the court has taken it upon themselves to make a contract for the parties, rather than to interpret the contract which the parties made. The parties agreed that " continued possession or use of machinery for six days shall be conclusive evidence that the warranty is fulfilled; " but the court has read into this an implied condition that the possession should be "at a place where it would be possible to use it for the purpose of threshing grain," and held that the plaintiff should have been allowed to submit evidence to the jury to establish the fact " that it was impossible for them to use or test the machinery for any given length of time after they received it at the defend ant's warehouse." It is in effect construing the word " possession " as equivalent to the words "pos session where it would be possible to use it for the purpose for which it was intended." We do not consider that the case is likely to have any great influence in the construction of warranties. Oscar Storer. SHIPPING. (Passengers.) U. S. D. C, N. D. Wash. — The case of The Charles Nelson, 149 Fed. Rep. 846, discusses the liability of a vessel for carrying an excess number of San Francisco refugees from that city at the time of the earth quake. The libel was filed by some steerage passengers who alleged an insufficient number of berths, overcrowding, lack of water, etc., and also asked for the penalty for carrying more passen gers than allowed by the certificate of inspection. The evidence went to show that on account of the difficulty in communicating between the different offices of the steamship company during the con fusion then existing, several steerage tickets in excess of the number allowed by the certificate of inspection had been sold, but that every rea sonable effort had been made to prevent more than the lawful number of passengers from boarding the vessel. The steamer left at night, and there were no lights on the dock. After the number allowed had gone aboard the officer in charge directed other passengers appearing with tickets to return them to the offices where they had been purchased, with the assurance that their money would be refunded, and it was not until the next day, when far out at sea, that it was discovered there were several extra ticket holders and some stowaways on board. Every effort was made to have things as comfortable as
possible, but as no water supply could be obtained at San Francisco and the fuel supply ran short, thus preventing the use of the condensers a part of the time, it was necessary to somewhat re strict the use of water. The vessel's accommoda tions were not perhaps all that could be desired, but seemed to be as good as could be well pro vided under the circumstances. The court dis missed the libel, using the following language: "It is the opinion of the court, however, that the extraordinary conditions existing at San Fran cisco when the voyage was undertaken justify and require the exercise of judicial discretion, and that according to principles of equity the libellants are not entitled to prevail. ... It is plainly apparent that the desire of libellants to get away from San Francisco was too strong to admit of any questioning of the sufficiency of the accommodations afforded by The Charles Nelson before going aboard of her, and their demands are as ungracious as would be the case if they had been castaways and were suing the rescuing ship which had brought them away from a deso late shore." This an interesting example of a defense be cause of the existence of a sudden emergency. One who is in such an emergency acts, reasonably for the benefit of all concerned is excused. The equitable nature of an affirmative defense is recog nized by the court. J. H. B. TRADE-MARKS AND TRADE-NAMES. (Copy right.) N. Y., S. C. — The right of publishers of uncopyrighted books to restrain unfair competi tion receives attention in E. P. Dutton & Co. v. Cupples, 102 N. Y. S. 309. Plaintiff had con ceived the idea of getting out a set of Christmas books consisting of well-known hymns and poems, printed in illuminated type and illustrated with copies of old masterpieces, and in some instances by pictures made by artists employed by them. Portions of the work were in colors, and the volumes were bound in highly decorated covers. The subject-matter was old and of course not subject to copyright. Defendants by some photo graphic process made cheap copies of plaintiff's books and put them on the market. The court granted a preliminary injunction, saying: "Upon the general right of plaintiff to protective relief, we cannot see any reason why the same rule should not be applied to a book that has been applied to a game or to cigars or to anything else which is distinguished by a label or by the dis tinctive form or style of the package." WATERS AND WATER COURSES. (Subter ranean Connection.) Cal. — Newport v. Temescal Water Company, 87 Pac. Rep. 372, is a case not
