ouraav v. Jomv HANCOCK MUT. LIFE INS. co. 25
mark, and that they lost, on all the lots making up the 900 barrels,
except one, 3543, and on that one made only $7 .50. All questions as
to the weight of conflicting evidence were for the master. The de-
fendants might get 25 cents per barrel more on account of the trade-
mark, and still lose on the whole transaction. The profits due to
the trade-mark only, and not the prohts of the whole business, were
the subject of inquiry. Garretson v. Clark, 15 Blatchf. 70; S. C.
111 U. S. 120, and 4 Sup. Ct. Rep. 291. The general loss would be
less on account of what the trade-mark brought more.
It is argued that the evidence does not show that the orator would
have made this profit if the defendants had not. This might be true,
and not affect the rights of the parties. If the defendants made
profits by their invasion of the orator’s rights, the orator is entitled
to them whether the same pronts would have been made by the orator
or not, and not to any more if they would, for the same profits could
not be made by both. But the master seems to have inferred that
they would, and therefore to have found that the orator was damaged
by the loss of profits to the same extent that the defendants saved by
them. The fact that the Hour of the orators bearing this mark was
in the same market would seem to be suihcient to warrant this ind-
ing. Faber v. Hovey, 1 Wkly. Dig. 529; S. C. 73 N. Y. 592.
Exceptions overruled, report accepted and connrmed, and decree
to be entered accordingly.
Cnmnr v. Jenn Hmoocx Mor. Lum Ins. Co.
(Oircuit Uaurt, E. D. Mckigan. March 15, 1886.)
1. Linn TNBURANCE—WAIVER or Surnronr Pnovrsron.
hn act of the legislature provided that, upon the payment of the first pre-
mium upon a policy of life insurance, the policy shon d remain in force for
a certain t1_me for t_ e full amount thereof, ‘ anything in the policy to the con-
trary notwithstanding. " Held, that this act might be waived b the express
agreement of the parties, by the substitution of a non-forfeitablb policy of a
different character.
2. SAME—··BENEF‘ICIARY Bomm BY Oarenur. Conrnaor.
The beneficiary of a policy is bound by all the terms of the original con-
tract entered into between the insured and the company.
This is an action upon a policy of life insurance for $1,000. The
facts were all stipulated, and were substantially as follows:
_ (1) The defendant is a corporation, organized and existing under
the laws of the state of Massachusetts prior to the dates of any of
the statutes of the state hereinafter mentioned. ·
(2) On the nfteenth day of November, 1880, one John F. Mills, of
Michigan, made his written and printed application to the defendant
for insurance on his life for $1,000, for the term of 20·year endow-
ment, and in said application agreed as follows, to-wit: