that in the case tried in the Jackson county circuit court, as also in that of Gaines & Co. v. Leslie, 25 Misc. Rep. 20, 54 N. Y. Supp. 421, cited by complainant's counsel, as to render them of no controlling force on the facts involved in and the principles of law applicable to this case. The only evidence touching the character of the whisky sold by the Hellmans is that it was blended whisky-a mixture of so-called straight whisky with refined spirits from which, the blenders claimed, the largest possible percentage of impurities were removed. Whether this made it better or worse than that manufactured by the complainant does not affect this case. No customer of the Hellmans is complaining, and the complainant has failed to show that the defendants palmed off their whisky on anybody as that of the complainant's manufacture.

The complainant lays much stress upon the situs of its distillery on Glenn's creek, in Woodford county, Ky., as if there were some peculiar virtue in the air and water of that place adapted to the distillation of whisky, which it had in some way wholly appropriated. The evidence does not show that Glenn's creek in any way entered into the composition of the whisky. The water used came from the springs some distance from the creek, in nowise different from other springs in the limestone region of the Blue Grass district of Kentucky. We fail to perceive the relation of all this to the claimed trade-mark. As there was no secret about the process of distillation employed by James Crow, which the complainant assumes to follow, as "hand-made" whisky (and there was some evidence that the complainant now employs machinery in some material respect in the process of manufacture), the use of which process is not secured to the complainant by any patent, and as the defendants have not claimed to use either Kentucky corn, water, or air in the composition of their blended whisky, and did not represent that it came from Glenn's creek, all these matters are quite immaterial on the issue of unfair competition in trade.

After a careful consideration of the mass of relevant and irrelevant evidence in this record, our conclusion is: (1) That inasmuch as the defendants' predecessors in business, prior to the use or the adoption of the designative word "Crow," or the words "Old Crow," as a trade-mark, employed those words as descriptive terms in connection with their business as dealers in whisky in St. Louis, Mo., and said predecessors and the defendants so continued to use the same, to a limited extent, up to the time of the institution of this suit, in good faith, they are not guilty of infringing the complainant's claimed trade-mark; and (2) that the defendants are not guilty of having engaged in unfair competition with the complainant in the prosecu

tion of their business.

It results that the decree of the Circuit Court must be reversed, and the cause remanded, with direction to the Circuit Court to dismiss the bill of complaint.

(161 Fed. 503.)

MUNDY v. SHELLABERGER.

(Circuit Court of Appeals, Eighth Circuit. March 31, 1908.)

No. 2,648.

1. HOMESTEAD-CONTRACT BY HUSBAND ALONE TO CONVEY-MISSOURI STATUTE. An executory contract to convey a homestead, signed by the husband alone, is within Rev. St. Mo. 1899, § 3616 (Ann. St. 1906, p. 2034), which provides that every sale or alienation of a homestead by the husband shall be null and void, and such a contract can neither be enforced in equity nor be made the basis of an action for damages for nonperform

ance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Homestead, §§ 191-202.]

2. SPECIFIC PERFORMANCE-ENFORCING PARTIAL PERFORMANCE-EXCESS OVER HOMESTEAD LIMIT.

Under Rev. St. Mo. 1899, § 3616 (Ann. St. 1906, p. 2034), which makes any alienation of a homestead by the husband alone null and void, an executory contract by a husband to sell homestead property which exceeds in value the statutory limitation of $3,000 will not be specifically enforced by a court of equity as to the excess in value, which was not the contract made, nor will damages be awarded in lieu of performance as to such excess; both parties being chargeable with knowledge that the contract was void when it was signed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 20-25.]

Appeal from the Circuit Court of the United States for the Western District of Missouri.

For opinion of the court below, see 153 Fed. 219.

Halbert H. McCluer (Omar E. Robinson and John T. Harding, on the brief), for appellant.

M. A. Fyke and A. S. Marley, for appellee.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND, District Judge. This action was brought by appellant to enforce the specific performance by appellee of the following con

tract:

"Kansas City, Mo. June 18, '04. "Kirk L. Shellaberger, Kansas City, Mo.-Dear Sir: I herewith contract. with and agree to deliver to you one hundred thousand shares of the Logan Oil & Gas Company stock, of the par value of one dollar each, full-paid and nonassessable, also sixty thousand shares of the Northern Petroleum Company stock, par value one dollar each, full-paid and nonassessable, also thirteen thousand one hundred and twenty-five shares Clermont Oil Company stock, par value one dollar, full-paid and nonassessable, for your Winifred Court, 541 Brooklyn avenue, upon which are sixteen brick cottages, and your residence, 135 Park avenue; said properties free from all mortgages. Rents from Winifred Court to come to me from date of delivery of deed; you to retain possession of your residence for 90 days, if necessary, free of rent. Deeds for said properties to be delivered within ten days from this date, or as near that date or sooner if possible. You to bring abstracts down to date. All stock I agree to deliver to you inside of ten days. Dated this 18th day of June, 1904.

"Witness: W. Peard Thomas.

J. F. Mundy.

"I accept the above proposition and agree to carry out same.

"Witness: W. Peard Thomas."

"K. L. Shellaberger.

It is conceded by appellant that the property described in said contract as 135 Park avenue was on June 18, 1904, the homestead of appellee, occupied by himself and family to the knowledge of ippellant. The property described in the contract is located in Kansas City, Mo. Section 3616, Rev. St. Mo. 1899 (Ann. St. 1906, p. 2034), provides that the homestead of every housekeeper or head of a family in cities like Kansas City shall not include more than 18 square rods of ground or exceed in value $3,000. Then follows this additional provision:

"The husband shall be debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever, and every such sale, mortgage or alienation is hereby declared null and void: Provided, however, that nothing herein contained shall be so construed as to prevent the husband and wife from jointly conveying, mortgaging, alienating, or in any other manner disposing of such homestead, or any part thereof."

Appellant refuses to accept a decree for the specific performance of the contract for the Winifred Court property alone, and it necessarily results that, if no relief can be granted as to No. 135 Park avenue, the bill must be dismissed. Appellant, while conceding that specific performance of the contract cannot be had as to No. 135 Park avenue, insists that the court for that reason may, if it finds the contract wholly void as to such property, grant him compensation therefor in the way of damages. He further insists that, as No. 135 Park avenue is shown to be of the value of about $10,000, the contract to convey the same was at least good as to the excess in value of said property over and above the sum of $3,000, the homestead limitation, and that, as sections 3624, 3625, and 3626 of the Revised Statutes of Missouri (Ann. St. 1906, pp. 2046, 2047), provide that judgment creditors may have the homestead set off if the land claimed as such is larger in area than that provided by law for a homestead, or, where property is not susceptible of division without injury to the rights of the parties, may have the same sold and the amount of the homestead in value paid to the owner thereof and the excess paid to the creditors, the court may enforce the contract herein in a similar way as to the said excess in value. These contentions by appellant raise the following questions: First. Is the contract to convey No. 135 Park avenue, treating the same as simply a homestead, wholly void for want of the signature. of the appellee's wife, and, if so, can this court award compensation by way of damages for the failure of appellee to convey?

Second. Is the contract valid so far as the value of said homestead exceeds the sum of $3,000, and, if so, will the court proceed to enforce the contract as to such excess in some appropriate manner?

Section 3616, above quoted, declares every sale, mortgage, or alienation of the homestead made by the husband alone to be null and void. If an executory contract of sale can be held to be fairly within the denunciation of this law, then it also must be held null and void. No decision of the Supreme Court of Missouri has been cited, nor have we been able to find any, passing upon the question as to whether an executory contract of sale is within the statute. We are of the opinion, however, that upon principle and authority, where a present sale of the homestead is contemplated, as in the case at bar, an executory

contract for the sale of the homestead is within the statute, and therefore null and void when signed by the husband alone. In the case of Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431, the Supreme Court of that state had occasion to pass upon the validity of an executory contract of sale of the homestead when signed by the husband alone. In reference to this question the court said:

"The court below held, and we think correctly, that the contract made by the plaintiff was void, and that the note and money given and paid thereon by the defendant were without consideration. The Constitution of the state, as well as the statute relating to exemptions, provides that the homestead shall not be alienated without the joint consent of the husband and the wife, when that relation exists. In interpreting and applying the above provisions, it has been uniformly and consistently ruled by this court that, so long as the premises are impressed with the homestead character, no lease, mortgage, or deed, or other contract, intended to alienate the homestead or interfere with its use and occupancy as a homestead, made and executed alone by the husband and without the consent of the wife, is valid or effectual for any purpose whatsoever. If a party cannot convey the homestead by mortgage or deed without the consent of his wife, he certainly caunot make a contract agreeing to convey that will be valid or binding without her concurrence."

*

In Silander v. Gronna, 15 N. D. 552, 108 N. W. 544, the Supreme Court of North Dakota held an executory contract for the sale of a homestead null and void for all purposes when signed by the husband alone. In Lichty v. Beale, 75 Neb. 770, 106 N. W. 1018, the Supreme Court of Nebraska held that an executory contract for the sale of a homestead entered into by one spouse alone is utterly void. Upon principle we do not see, where a present sale is contemplated, how an executory contract for the sale of the homestead can be looked upon in any other view than a selling or alienating thereof. Especially would this seem true in an action where one of the parties to the contract is asking the court to compel the other party to execute a conveyance in accordance with the contract. Treating the contract, therefore, as being within the statute, we come to the consideration of the question as to whether the contract is wholly void, and, if so, whether damages may be awarded for the failure on the part of the appellee to make a conveyance in accordance therewith. We are of the opinion that, both by the words of the statute itself and by the great weight of authority, the contract which appellant is seeking to enforce, treating No. 135 Park avenue as embracing nothing but a homestead, is wholly void. Waples on Homestead and Exemption, pp. 383, 384, states the rule to be as follows:

"Under the general rule that the husband alone cannot sell or incumber his dedicated homestead, all alienation of it in any form by his act, when the property itself is not liable in rem, is absolutely void, not only as to the rights of his wife, who does not join him in the deed, and as to the children, to whom the law gives the protection of shelter and the comforts of a labitation, but also as to himself. His act is a nullity, and he escapes the consequences which would follow it, so far as his own right and title is concerned, but for the equitable rights and interests of his family. His deed of contract is as though it was never written or designed.”

Numerous authorities are cited in support of this statement of the author. We think Judge Philips stated the correct view of the matter

when, in deciding the case in the Circuit Court, he used the following language:

"When the text-writers and the courts speak of the right to commute in damages as to a part of the contract not susceptible of specific performance, they have in mind a contract of a party sui juris, which he had a right to make, not forbidden by law, and which he could perform if he had the title, or where he has by some act disqualified himself from performance. The ascertainment and awarding of damages in lieu of the specific thing in equity presupposes a contract valid and one enforceable in an action at law. Whether the suit be in equity for specific performance, with the incidental jurisdiction to proceed to the complete adjustment of the subject-matter of the controversy by awarding damages as to that part of the property embraced in the contract not capable of being conveyed for want of title, or the like, or whether it be an action at law for damages consequent upon failure to entirely perform the underlying basis of the right to relief is the existence of a valid contract. It is inconceivable to the judicial mind how a contract void, especially when it contravenes the public policy of the state where made, can ever form the basis of a suit recognizable either in equity or law."

The following authorities have been examined, and they sustain the view that a contract such as is now under consideration, treating No. 135 Park avenue simply as a homestead, is null and void and cannot be used as a basis for the recovery of damages either at law or in equity: Silander v. Gronna, 15 N. D. 552, 108 N. W. 544; Lichty v. Beale, 75 Neb. 770, 106 N. W. 1018; Clarke v. Koenig, 36 Neb. 572, 54 N. W. 842; Meek v. Lange, 65 Neb. 783, 91 N. W. 695; Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802; Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431; Hodges & White v. Farnham, 49 Kan. 777, 31 Pac. 606; Webster v. Warner, 119 Mich. 461, 78 N. W. 552; Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709, 30 N. W. 374; Gadsby v. Monroe, 115 Mich. 282, 73 N. W. 367; Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. 266; Barnett v. Mendenhall, 42 Iowa, 296; Barton v. Drake, 21 Minn. 299.

It would seem useless to cite further authority, but the language of Judge Mitchell in the case of Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817, is so clear and forceful that we quote from the opinion as follows:

"But, notwithstanding some respectable authority to the contrary, it seems to us that to hold that a person is liable in damages for the nonperformance of a contract which he is under no legal obligation to perform would be il logical, and without analogy or precedent in the law. The very proposition involves a legal inconsistency. We think that on legal principles such a contract must be held void for all purposes, and not to constitute the basis of any action against the obligor. There are also strong practical considerations in favor of this view. While it is true, as counsel suggests, that to hold the husband liable for damages would not deprive him or his family of their homestead, yet to force him to the alternative of securing his wife's signature to the conveyance or being muleted in damages for not doing so, and to place the wife in the dilemma of either having to sign the deed or see her husband thus mulcted in damages, might, and naturally would, often indirectly defeat the very object of the statute. There is nothing unjust to the obligee in holding such a contract absolutely void for all purposes. He is bound to know the law, and he always has actual notice, or the means of obtaining actual notice, of the fact that the land with which he is about to deal is a homestead."