Page:The Green Bag (1889–1914), Volume 17.pdf/642

 NOTES OF RECENT CASES intended to limit or destroy their business, but in Spcrry & Hutchinson Co. v, Hertzberg, 60 Atlantic Reporter, 368, however, the company at tempts to restrain a merchant who had no con tract with it, from giving to his customers stamps obtained from persons to whom they had been regularly issued by merchants who had such con tracts. Stamps are issued to merchants under a contract providing that they shall be given out to purchasers of goods and that the company holds itself ready at all times to redeem the stamps in merchandise when a specified quantity of them is presented. Under these circumstances, it is held that the stamps are choses in action which are assignable and over which the trading stamp company has no control after they have once been given out by a merchant in accordance with this contract. It is also held that after stamps have been issued in this manner by the trading-stamp company, it has no power by a subsequent change of its plans and contract with its customers to limit the transferable quality of stamps theretofore issued and which have passed to dealers and persons dealing with its customers in the regular way. A contention, so palpablyuntenable as to create some mild surprise that it was advanced, is settled by the decision that there is no presumption that any particular scheme or plan of business, although lawful, is necessary, or even specially advantageous to the growth of commerce and the advance of civiliza tion, and hence the trading-stamp business is not per se one which the courts must protect. TRADING STAMPS. (RIGHT OF MERCHANT TO REISSUE — NATURE OF OBLIGATION) U. S. C. C. RHODE ISLAND. The case of Sperry & Hutchinson Co. v. Me chanics Clothing Company. 135 Federal Reporter, 833, was unpublished at the time the New Jersey case was decided and is in direct conflict with it. Here it was held that the complainant had the right to restrict the use of the stamps by contract and that stamps having once been issued by a merchant were fittiftus officio except for redemp tion and though transferable for that purpose, defendant's use thereof was an improper inter ference with complainant's business, which com plainant was entitled to restrain. The precise point of difference between these two cases seems to lie in the different view which the Federal Court takes of the nature of the transaction between the trading-stamp company and the merchant who purchases the stamps. The trading stamp is not regarded by this court as ordinary property, but is said to be stti generis and to represent a somewhat complicated transaction imposing nec

613

essary limitations upon the modes in which it may be transferred. The trading-stamp com pany by extensive advertising creates a demand for the stamps, and in effect sells to the merchant the right to supply this demand by issuing stamps which are at the time of the issue the property of the trading-stamp company. Thus, it is argued, the merchant is, in a certain sense, the agent of the company in issuing the stamps. Hence, the stamp, when issued, represents a closed transac tion between the merchant and the company. Under this view the stamp is regarded by the Federal Court as a token or voucher of the sale and use of a certain amount of advertising, and is designed for a single use in an advertising scheme. Arguing from this standpoint, it is concluded that the merchant who obtains the stamps from per sons who did not acquire them for advertising purposes, secures for himself the ability to do what it was not intended the collector of stamps should do. and that as the trading-stamp company has made large expenditures to create a demand for the stamps, the merchant who obtains them second hand and reuses them as an advertise ment, gets for nothing what others are required to pay for, which it is contended he has no right to do. WILLS. (DIRECTION FOR ERECTION OF MONU MENT — DUTY OF EXECUTOR) CALIFORNIA COURT OF APPEALS. A case for which no known precedent exists is that of In re Koppikus' Estate, 81 Pacific Reporter, 732. The testatrix left her husband as her sole heir, and provided by will for the erection of a monument over her grave at a cost of $1,000. She also gave directions that she be buried in a certain cemetery, and the body was buried there with the knowledge and consent of the husband. After a petition was filed asking a sale of real estate for the pxirpose of raising funds to erect a monument the husband caused the remains to be cremated and the ashes were not returned to the grave. In opposition to this petition it was con tended that the testatrix by the direction in her will attempted to dispose of her dead body, but it was held that even if such was her intention it was carried into execution by her husband, who would have the right to dispose of it himself, and that when her grave was located and established at the place directed by her, the removal of the remains and their cremation did not change its location, it having become, for the purposes of the case, a certain, fixed, and definite place; a grave without regard to the presence therein of the body, so that the executor was required to erect a monument as contemplated in the will.