In an action upon the bond above described, the answer was a general denial only. It appeared from a copy of the bond annexed to the declaration that it provided that it should be valid only when the trust company, which was the mortgagee, had indorsed thereon a certificate that it was one of the bonds in the indenture specified as secured by the mortgage. The defendant contended that the plaintiff could not recover unless he introduced evidence of the genuineness of the signature of the trust company. Held, that such defence was not open without a specific denial of the signature of the trust company.

At the trial of the action above described, the defendant also contended that a verdict should be ordered in its favor because the plaintiff had introduced no evidence that the defendant had obtained the approval of the board of railroad commissioners as required by R. L. c. 109, § 24, at the time when the bond was issued, but it was held, that such defence was not open unless it was specifically set up in the answer.

CONTRACT, by the holder and owner of a $1,000 bond of the defendant. Writ dated August 15, 1922.

In the Superior Court, the action was heard by Weed, J., without a jury. The judge found and ruled as follows:

"At the trial the plaintiff introduced in evidence the bond and testimony of the plaintiff that he purchased the bond in 1906 from a broker, paying as purchase price more than the par value; that the bond was not paid at maturity nor has it been paid in whole or in part since maturity, and that he did not at maturity nor since present the bond at the Girard Trust Company and demand payment; and rested. No other evidence was offered by either party, but under Rule 37 the defendant admitted that Ralph D. Gillett and Arthur W. Eaton were on June 2, 1902, respectively president and treasurer of the defendant and as such duly authorized by the defendant to execute the bond.

"The defendant contended that the plaintiff is not entitled to recover, for the reasons that the plaintiff did not offer evidence that the certificate of the Girard Trust Company indorsed on said bond was duly executed by said company, that the bond was presented for payment to the Girard Trust Company on June 1, 1922, or at any time, that the issue of the bond was ever approved by the board of railroad commissioners as provided in R. L. c. 109, § 24, and what the terms of the indenture of first mortgage mentioned in the bond are.

“I rule as a matter of law that upon the evidence submitted the plaintiff is entitled to recover with interest from the date of the writ, and I find for the plaintiff in the sum of $1,037.50." The defendant alleged exceptions.

A. W. Blackman, for the defendant.

H. P. Mason, for the plaintiff.

BRALEY, J. The judge was warranted on the record in finding that the plaintiff was the holder and owner of a first mortgage five per cent gold coupon bond for $1,000, payable to bearer, or if registered to the holder, issued by the defendant, and signed respectively by its president and treasurer, a copy of which is annexed to the declaration. G. L. c. 231, § 29. It was a negotiable instrument. Dexter v. Phillips, 121 Mass. 178, 183. Pratt v. Higginson, 230 Mass. 256, 258, 259.

Neither a presentment of the bond to the trust company named in the instrument—which held as trustee a first mortgage on all the property, privileges and franchises of the defendant to secure bondholders, and at whose office and place of business it was made payable-nor demand for payment was necessary before bringing suit. The defendant is the primary and only promisor, and the action itself is a sufficient demand. G. L. c. 107, §§ 23, 93. Goodfellow v. Farnham, 239 Mass. 590, 591.

The bond has attached to it a Trustee's Certificate," purporting to be signed by the trust company, stating that "It is hereby certified that the within bond is one of the bonds specified in the within indenture of mortgage as secured thereby." The bond having provided that it “is valid only when the Girard Trust Company has indorsed hereon a certificate that it is one of the bonds in the said indenture specified as thereby secured," the defendant's first contention is that the plaintiff cannot recover because he introduced no evidence of the genuineness of the signature of the trustee. But the answer is a general denial, and, the defendant having made no specific denial of the genuineness of the signature of the trust company, with a demand that it should be proved at the trial, this defence is not open. G. L. c. 231, § 29. Lowell v. Bickford, 201 Mass. 543. 26

VOL. 247.

Whiddon v. Sprague, 203 Mass. 526. Dean v. Vice, 234 Mass. 13. Levison v. Lavalle, 243 Mass. 47.

The defendant's final contention is that a street railway company organized under the laws of this Commonwealth could not at the date of the bond, June 2, 1902, mortgage its franchise or property and issue bonds thus secured without the approval of the board of railroad commissioners as provided in R. L. c. 109, § 24, and that the plaintiff having failed to introduce any evidence that, the defendant had obtained the approval of the board, the judge should have ruled as requested, that the action could not be maintained. The bond which the plaintiff bought was issued and sold by the defendant, and the proceeds were received under the terms of the mortgage. A contract is presumed to be legal until the contrary is shown, and the affirmative defence of its illegality is unavailable unless pleaded in the answer, which has not been done in the present case. Granger v. Ilsley, 2 Gray, 521. Suit v. Woodhall, 116 Mass. 547, 549. Whittingslow v. Thomas, 237 Mass. 103, 105.

We find no error of law in the rulings at the trial and the exceptions must be overruled.

So ordered.

RICHARD J. R. CAINES vs. CAINES COLLEGE OF PHYSICAL

CULTURE, INC.

Suffolk. November 20, 1923. - January 7, 1924.

Present: RUGG, C.J., CROSBY, PIERCE, & CARROLL, JJ.

Name. Trade Name. Corporation, Name. Equity Jurisdiction, To restrain use of name.

A master heard a suit in equity to enjoin a corporation, which had as a part of its corporate name the surname of the plaintiff, from using that surname, and found in substance that the corporation was formed in 1907 under the direction of the plaintiff to take over a business formerly conducted by him under his own name, and that the name then adopted by the corporation included the plaintiff's surname and was very similar to the name under which the plaintiff formerly had conducted the business; that the plaintiff promoted the business of the corporation under such corporate name;

that the plaintiff's surname had been identified with the pursuit of the corporation's business and was used with the approval and at the direction of the plaintiff, and that the public understood that it indicated the business conducted by the defendant; that stock certificates of the corporation bore the name of the plaintiff as president and treasurer, and that he promoted the sales of such certificates to the general public; that the plaintiff entered the army in 1917; that in 1919 he returned to the employment of the corporation; and that in 1920 he was discharged by the corporation but still retained his interest as a stockholder. Held, that it would be unjust and contrary to equity and fair dealing to give to the plaintiff the relief he asked, and that a decree dismissing the bill was warranted.

BILL IN EQUITY, filed in the Superior Court on March 16, 1921, seeking to enjoin the defendant from using in its business the name of the plaintiff either alone or in connection with any other name or designation or as a part of its corporate name or as a trade name or otherwise; and for damages. The suit was referred to a master. Material facts found by the master are described in the opinion. No exceptions to the master's report were filed by either party.

The suit was heard upon the pleadings and the master's report by Braley, J., by whose order there were entered an interlocutory decree confirming the report and a final decree dismissing the bill with costs. The plaintiff appealed.

G. L. c. 110, § 4, reads as follows:

"A person who conducts business in the Commonwealth shall not assume or continue to use in his business the name of a person formerly connected with him in partnership or the name of any other person, either alone or in connection with his own or with any other name or designation, without the consent in writing of such person or of his legal representatives."

J. B. Studley, (E. E. Ginsburg with him,) for the plaintiff. G. R. Farnum, for the defendant.

CARROLL, J. The plaintiff seeks to restrain and enjoin the defendant from using in its business the name of the plaintiff, either alone or in connection with any other designation, or as a part of its corporate name, or otherwise, under G. L. c. 110, § 4, which prohibits a person conducting business in this Commonwealth, from assuming or continuing to use in his business the name of a person formerly connected with

him in partnership, or the name of any other person, without his consent in writing or the consent in writing of his legal representative. No exceptions were filed to the master's report. The plaintiff appealed from a final decree dismissing the bill.

The plaintiff was the manager of a school of physical culture in Boston. In 1904, he established a school in that city under the name of "Caines School of Physical Culture" which he conducted until 1907, when a corporation was formed under the laws of the State of Maine with a capital stock of $10,000. The name adopted was "Caines College of Physical Culture, Inc." The master finds that the corporation was formed with the knowledge and consent and under the direction of the "real parties in interest;” that at a meeting of the directors of the corporation, held fourteen days after the first meeting of the signers of the articles of association, a communication from the plaintiff to the directors was read, in which the plaintiff agreed to sell to the corporation for the sum of $9,600, payable in the capital stock of the corporation, "the business, rights, franchises, and good will of the business now owned by [him], known as Caines College of Physical Culture;" that this offer was accepted and certificates of stock were issued in accordance with the vote of the directors; that five days later the plaintiff was elected president, treasurer, general manager, and a director, which position he held until he entered the army and went to France in 1917; that during a part of the year 1919, he resumed his former position with the defendant company; that in 1920, he was discharged by the company but he still retains his interest as a stockholder; that the school was organized and built up during the first ten years of its existence largely through the efforts of the plaintiff, and his name has been identified with the business of the corporation; that he knew the name was to be adopted by the corporation and approved its selection.

The master also found that the plaintiff as general manager ordered and used letter heads bearing the names "Caines School of Health Exercise" "Caines 175 Massachusetts Avenue, Boston. Richard J. R. Caines, M.D., Director;"