*

they desired to change it, except that it is
alleged that a portion of the proposed drain
will be "along and upon the line of an old
ditch heretofore constructed, and which is
insufficient to drain the land assessed for its
construction,
and that it is the
wish and intention of the petitioners herein
to deepen and widen the old drain so as to
make as nearly as practicable a uniform
grade line from the source of the proposed
drain to the outlet thereof." The allegation
that the present drain "is insufficient to drain
the land assessed for its construction" im-
plies assessments against other lands, but at
least not against the lands of the petitioners,
or all the lands sought to be drained by this
proceeding. It appears to us, therefore, as
a proceeding under section 6141 et seq., which
removes the one jurisdictional question
sought to be raised, and that is whether an
original drain may be constructed over the
Hine of a prior drain by widening and deep-
ening the original drain, and extending it,
or attaching laterals, or both. The statute
itself (section 6142, Burns 1908) provides that
the commissioners may "determine that the
method of drainage shall be by removing ob-
structions from a natural or artificial water
course, or diverting such water course from
its channel, by deepening, widening, or chang-
ing the channel of such water course, by con-
structing an artificial channel with or with
out arms or branches," etc. (Our italics
throughout.) It is not provided in so many
words that an existing ditch may be length
ened, but it is manifestly an incident of the
jurisdiction and power conferred. The rea-
son for the differing provisions and adapta-
tions of sections 6141 and 6174 are obvious.
If the purpose only is to change or repair
an existing system, it is a wise provision that
this be done in the jurisdiction which orig-
inally constructed it, because of the presence
of the records and files, and the fact that it
is practically a continuation of the existing
public utility. On the other hand, the chang-
ed conditions or the exigencies may make
it feasible, if not necessary, in order to ac-
complish additional results, or drainage, to
deepen, widen, or change existing drains, as
a corollary to adding additional flowage of
water from extensions, and laterals, and it
may often happen that the existing drains
are so located that their use becomes neces-
sary in order to obtain those results at the
least cost, and impracticable to put them else-
where, owing to the topography, besides it
would be a manifest injustice to cut two
104 N.E.-3

The

open ditches through a farm, when the public interest may be subserved by one. question, however, is set at rest upon reason and authority by many cases. Sharp v. Eaton, supra; Shields v. Pyles, supra; Denton v. Thompson, supra; Meranda v. Spurlin, 100 Ind. 380.

Appellant was confessedly a party to this proceeding, as to some of her lands, and, as heretofore indicated, it is not shown that her lands, which were not assessed, were not stated in the petition as being affected. Whether they were or were not, if she felt that her lands would be affected or damaged, it was her privilege, as well as her duty, to remonstrate in that proceeding whether part of her lands were assessed or were not, with a right of appeal, and, having failed to do so, she cannot split up her remedies and now resort to the remedy of injunction. Karr v. Board, supra; Ryan v. Rhodes (1906) 167 Ind. 121, 76 N. E. 249, 78 N. E. 330, and cases cited; Reasoner v. Creek, supra.

Having reached the conclusion that the court had jurisdiction of the general subjectmatter, and that appellant was a party to the proceeding, the other questions sought to be raised by appellant are immaterial. In passing it might be said that the allegations of her complaint by which she seeks to anticipate a defense, based on the grounds that in the former proceeding she did not raise the question of jurisdiction, and that the record and proceedings in the circuit court do not disclose that the old drains proposed to be widened and deepened and extended had been established and constructed by the board of commissioners, if they are of any value, destroy her claim to injunction now, because they do not show that there was not jurisdiction. Karr v. Board,

supra.

[10] Again her complaint sets out the petition in part in the case in the circuit court, which shows that it was purposed to construct the proposed drain over the lines of two old drains and to widen and deepen them. That was sufficient notice to appellant, and it was not necessary that it should be disclosed in the record of the proceedings how much they were widened or deepened. We must assume that the specifications indicated the new depths and widths, and it was unimportant, so far as the question here is concerned, how much that widening and deepening was. Meranda v. Spurlin, supra.

There is no error made to appear by the record, and the judgment should be affirmed, and it is so ordered..

Unfair competition is always a question of fact; the question being whether defendant by (Appellate Court of Indiana, Division No. 2. his conduct is passing off his own goods as plaintiff's.

3. TRADE-MARKS AND TRADE-NAMES (§ 1*)- 10. TRADE-Marks and Trade-Names (§ 73*) "TRADE-NAMES."

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 1454; Dec. Dig. § 336.*] 18. CORPORATIONS (§ 239*) — LIABILITY STOCKHOLDERS-TORTS OF CORPORATION. As a rule, a stockholder who is not an of-isting under and by virtue of the laws of the ficer is not personally liable for the torts of a corporation.

The averments of the complaint are the from the organization thereof to November following:

"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

the capacity of traveling salesmen; that the | ty Ladder' for the fraudulent purpose of dedefendant George Bosse, on and prior to ceiving the public and appropriating plainNovember 16, 1909, was in the employ of the tiff's good will and reputation. plaintiff in the capacity of foreman of one of the departments, and that each and all of the individual defendants, at the time of the organization of the defendant corporation, well knew the use the plaintiff had made and was then making of the name 'Security' in connection with the advertisement and sale of its ladders, and well knew the plaintiff's interest in said name.

"That by reason of the defendants' literature, advertising matter, and correspondence being subscribed by the corporate name of the defendant corporation, The Security Ladder Company,' purchasers, dealers, and users are led to believe and will be led to believe, are induced to buy and will be induced to buy from the defendant corporation in the belief that they are buying plaintiff's goods, as and for the goods made by the plaintiff, and that purchasers of ladders, while intending to buy of the plaintiff, are led to purchase, and will continue to be led to purchase, ladders of the defendant corporation's manufacture, thereby diminishing plaintiff's prof

"That the said individual defendants, in disregard of the plaintiff's rights, conspired to create a corporation which should have a pretended color of right to use the name 'Security Ladder' for the purpose of deceiving the public into the belief that they were the original makers or the manufacturing suc-its, to the great and irreparable injury of the cessors of the original makers of such lad- plaintiff. ders, and thus create, by means of the deception, an unfair and tricky competition in trade with the plaintiff.

"That by reason of the fact that the ladders manufactured and to be manufactured by the defendants are similar in size and design to the ladders manufactured by the plaintiff, the use of the name of the defendant corporation, in any manner therewith, whether stamped thereon or otherwise associated with said ladders, tends to mislead and confuse dealers, purchasers, and users of ladders as to the origin of the goods, and enables the defendants to sell their goods as and for the goods of the plaintiff, and that the defendants are thus wrongfully appropriating the benefits of the corporation acquired by the plaintiff's goods; that the defendants by wrongfully selecting, adopting, and ap

and for the corporate name of the defendant corporation, are enabled to palm off their goods as and for the goods of the plaintiff, and that the defendants are thereby palming off their goods as and for the goods of the plaintiff; that the plaintiff has the exclusive

"That the defendants have prominently displayed the plaintiff's corporate name in their advertising literature in connection with the corporate name of the defendant corporation, concerning the manufacture and sale of ladders; that the defendants in their advertising literature announced to the public the fact that the defendant Hartzler was formerly with the plaintiff in the capacity of secretary and treasurer, and that the defendants Poorman, Rough, and Brownell were formerly with the plaintiff in the capacity of traveling salesmen, and would continue to travel the same territory they formerly cov-propriating the plaintiff's said trade-name, ered for the Goshen Churn & Ladder Company'; that in said advertising matter and iterature the plaintiff's corporate name is prominently displayed in connection with the corporate name of the defendant company, and in connection with the names of the individual defendants as dealers in lad-right to the use of said trade-name 'Security' ders, and in connection with the name of the defendant Hartzler as plaintiff's former secretary and treasurer, and in connection with the names of the defendants Poorman, Rough, and Brownell as plaintiff's former traveling salesmen; that said advertising matter is well calculated to deceive ordinary purchasers of ladders into the belief that the defendants are carrying on the business of the plaintiff-their former employer-or in some way connected with it; and that the defendants have been selling their goods, the ladders herein referred to, from the plaitiff's catalogues and photographs.

as applied to ladders, and to the tradename 'Security Ladder' especially as against the defendants' wrongful and misleading use of said names as aforesaid, and that the use of the name "The Security Ladder Company,' or 'Security Ladder Company' as and for the name of the defendant corporation is an unwarranted interference with the trade and good will and reputation of the plaintiff."

It is also alleged that in the manner and form aforesaid the defendants have pirated the plaintiff's trade-name and business; are attempting to wrongfully take and appropriate the plaintiff's business prestige and reputation; are stealing the business, good will, profits, and emoluments accruing to plaintiff by reason of its long term of years in selling and advertising security ladders; and are endeavoring to sell their ladders as plaintiff's, to plaintiff's damage in the sum of "That the name of the defendant corpora- $10,000; that the defendants threaten to, tion was wrongfully and unlawfully selected and will, unless restrained by this court, con

"That the name of the defendant corporation was unlawfully and wrongfully selected specifically for the benefit that would accrue from the use of the name 'Security Ladder' and for the purpose thereby unnecessarily to create unfair competition.

[1] "Unfair competition consists in passing off, or attempting to pass off, upon the public, the goods or business of one person as and for the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. And it may be stated broadly that any conduct, the natural and probable tendency and effect of which is to deceive the public so as to pass off the goods or business of one person as and for that of another, constitutes actionable unfair competition. The definition is comprehensive enough to reach every possible means of effecting the result." 38 Cyc. 756.

aforesaid, and to stamp the name "The Secu- | in the following excerpts from the article in rity Ladder Company" or the name "Security Cyc. on Trade-Marks, Trade-Names, and UnLadder," or the name "Security," on their fair Competition, the rules applicable to the ladders, to the irreparable injury of the present case are stated in language probably plaintiff, for which he cannot be compensated more concise and accurate than our own in damages. Wherefore the plaintiff prays would be: judgment for $10,000, and that defendants, all and each of them, be perpetually enjoined from using the name "The Security Ladder Company," or the name "Security Ladder Company" or the name "Security," or any name or names substantially identical therewith for their corporate name; or in connection with the business of the manufacture and sale of ladders; and from stamping ladders of their manufacture with such names; and from interfering with the paramount right of plaintiff to such names in connection with the manufacture and sale of ladders; and from representing that goods manufactured by them are manufactured by plaintiff; and from using the plaintiff's corporate name in their advertising in any manner calculated to deceive ordinary purchasers of ladders as to the origin of defendants' goods; and from advertising the fact that they or any of them were formerly with the plaintiff, in any manner that tends to injure the plaintiff, and for all other proper relief. Demurrers to this complaint by each defendant were overruled, and the issues closed by answers in general denial. The cause was tried by the court, who found the complaint true and proven, that the defendants in adopting and using the corporate name of the Security Ladder Company, and in adopting and using in its corporate name the word "Security," perpetrated a fraud upon the plaintiff; that the use of such corporate name and such word was wrongful to the plaintiff, and caused it to be damaged in the sum of $500; that the defendants should be enjoined, substantially in accordance with the prayer of the complaint, and rendered judgment in conformity to his findings.

Appellants separately assign that the complaint does not state facts sufficient to constitute a cause of action against appellants and each of them, that the court erred in overruling the demurrer of appellants and each of them to said complaint, and that the court erred in overruling the separate and several motion for new trial of each appellant, and appellants' joint motion for new trial.

The subject of unfair business competition has not been much considered by our courts. Indeed we believe that there is but one case reported in this state, that of Computing Cheese Cutter Co. v. Dunn, 45 Ind. App. 20, 88 N. E. 93, which deals exclusively with the question, though there are some older trademark cases. We, therefore, feel justified in referring at some length to the general principles of the law of unfair competition as deduced from cases in other jurisdictions, and collected in text-books, and we find that

[2] "Relief against unfair competition is properly afforded upon the ground that one who has built up a good will and reputation for his goods or business is entitled to all the benefits therefrom. Such good will is property, and, like other property, is protected against invasion. The deception of the public injures the proprietor of the business by diverting his customers and depriving him of sales which he otherwise would have made." 38 Cyc. 760.

[3-5] "Trade-names are names which are used in trade to designate a particular business of certain individuals considered somewhat as an entity, or the place at which a business is located, or of a class of goods, but which are not technical trade-marks, either because not applied or affixed to goods sent into the market, or because not capable of exclusive appropriation, by one as trade-marks. Such trade-names may or may not be exclusive. Exclusive trade-names are protected very much upon the same principles as trademarks, and the same rules that govern trademarks are applied in determining what may be an exclusive trade-name. Nonexclusive trade-names are names that are publici juris in their primary sense, but which in a secondary sense have come to be understood as indicating the goods or business of a particular trader. Trade-names are acquired by adoption and user, and belong to the one who first used them and gave them a value." 38 Cyc. 765.

[6] "In order to make out a case of unfair competition, it is not necessary to show that any person has been actually deceived by defendant's conduct and led to purchase his goods in the belief that they are the goods of plaintiff, or to deal with defendant thinking that he was dealing with the plaintiff. It is sufficient to show that such de ception will be the natural and probable re sult of defendant's acts. But either actual or probable deception and confusion must be