ant for a certain amount, payable one day after date, with interest at the rate of one per cent per month from date until paid, said note reciting the deposit with defendant as collateral security of 500 shares of stock in a mining company and certain shares of stock in other companies, and reciting a provision whereby the defendant was authorized to sell, without notice, at public or private sale, in case of the non-payment of the note, and that the agreement by which defendant was authorized to sell should extend to any additional collaterals which might be deposited to secure the payment of the note, the following averment has been held sufficient to disclose the agreement relied upon, and the ground of mistake in that the agreement set forth in the written instrument did not conform to the one actually made between the parties, to wit: "That plaintiff deposited with the defendant the shares of stock mentioned in the note, and that it was not the intention of the parties that the portion of the printed form of the note providing for the sale of the collaterals without notice should ruinain as a portion of the contract, but that an erasure of that portion should have been made, and that it was not done; that plaintiff never authorized defendant to sell the collateral, or any part of it, without demand of payment of the note and a reasonable time and opportunity to redeem the collateral; that he never authorized a private sale of the collateral without notice to him of the time and place of the sale; that after the maturity of the note the defendant requested plaintiff to deposit with it an unrecorded United States patent to 160 acres of land, situate in Pueblo County, Colorado, as additional security, this patent having been issued to and standing in the name of the plaintiff; that in consideration of such deposit the defendant agreed that the time for the payment of the note would be extended indefinitely; that in consideration of this agreement plaintiff did deposit the patent with defendant; that defendant accepted the paper in accordance with the agreement, and still has possession of it; that the defendant at no time made any demand upon the plaintiff for the payment of the note, and gave the plaintiff no opportunity to Jury's Pl.-102.

redeem the securities; that upon the 10th day of January, 1899, without notice to the plaintiff, defendant sold and converted to its own use the 500 shares of stock of the Isabella Gold Mining Company; that this sale was made without advertisement or notice; that plaintiff was at all times able and willing to pay the note upon the return of the securities; that upon the 15th day of February, 1899, he made a tender to defendant of the amount due on the note, including interest, in gold coin of the United States, and demanded a return of the securities and title paper; that defendant refused to accept the tender, and refused to return the securities, or any of them; that the securities are worth $2,500, and plaintiff demands judgment for the return of the securities and for $2,500 damages": Drake v. Pueblo National Bank, 44 Colo. 49, 96 Pac. 999, 1000.

16. Measure of damages in trover.In trover, the measure of damages is the fair market value of the property converted at the time of the conversion, and, in Colorado, an additional amount equal to the legal rate of interest upon such value from the time of conversion to the time of trial: Omaha etc. R. Co. v. Tabor, 13 Colo. 41, 59, 21 Pac. 925, 5 L. R. A. 236, 16 Am. St. Rep. 185; SigelCampion etc. Co., 44 Colo. 580, 101 Pac. 68, 70.

17. Damages for conversion.-The cost of property is not the proper basis of estimating damages. The value at the time and place of conversion must be taken: Greenebaum v. Taylor, 102 Cal. 624, 627, 36 Pac. 957; Yukon River S. B. Co. v. Gratto, 136 Cal. 538, 541, 69 Pac. 252. See Hamer v. Hathaway, 33 Cal.

117.

18. A plea of former adjudication in an action involving ownership-such as trover or detinue-must aver that the question of title was actually decided in the former case, or was so involved that the judgment could not have been rendered without its determination. The only effect of such former judgment is to settle the rights of the parties up to that time; it cannot prevent the plaintiff from recovering on a title since acquired: Pacific Live Stock Co. v. Isaacs, 52 Ore. 54, 96 Pac. 460, 463, quoting the rule as stated in 9 Ency. Pl. & Pr. 624.

exclusive use in this state, may obtain protection for such lawful trade-mark or device by complying with the following requisites and requirements.

First. By making out and filing in the office of the secretary of state of this state, to be there registered or recorded, a statement specifying the names of the parties and their residence and place of business who desire the protection of the trade-mark, the class of merchandise, and particular description of goods comprised in such class, by which or to which the trademark has been or is intended to be appropriated; a description of the trademark itself or device, or combination of words, letters or figures or characters used or intended to be used as such, and the mode in which it has been or is intended to be applied and used, and the length of time, if any, during which the trade-mark has been in use.

Second. By making payment to the secretary of state, for the use of the state, of a fee of not less than twentyfive nor more than one hundred dollars, to be determined by the secretary according to a. schedule of fees arranged with reference to the number of words, figures, characters, etc., contained in such statement, which schedule it is made the duty of the secretary to make and keep posted up in his office.

in

a2 Arkansas, § 7961. The certificate prescribed the preceding section must, in order to create any right whatever in favor of the party filing it, be accompanied by a written declaration, verified by the person or by some member of the firm or officer of the corporation by whom it is filed, to the effect that the party claiming the protection for the trade-mark has a right to the use of the same, and that no other person, firm or corporation has the right to such use, either in the identical form or in any such near resemblance thereto as might be calculated to deceive, and that the facsimiles presented for record are true copies of the trade-mark sought to be protected.

a3 Arkansas, § 7962. The secretary shall not receive and record any proposed trade-mark which is not and can not become a lawful trade-mark, or which is merely the name of a person, firm or corporation, unaccompanied by a mark sufficient to distinguish it from the same

name when used by other persons, or which is identical with a trade-mark appropriated to the same class of merchandise and belonging to a different owner, and already registered or received for registration, or which SO nearly resembles such last-mentioned trade-mark as to be likely to deceive the public. But this section shall not prevent the registry of any lawful trademark rightfully in use on the first day of May, 1883.

b Colorado, § 6838. Any person, corporation, firm or association of persons, organized for the promotion of the common welfare of its members, and the members of its order or society, in the manufacture or sale of any goods, wares or merchandise may adopt and use a label or trade-mark to indicate either the origin or ownership, or both the origin and ownership, of the goods, wares or merchandise, manufactured, sold or offered for sale within this state, by any such person, corporation, firm or the members of such association, order or society having a common interest in promoting the manufacture or sale of such goods, wares or merchandise; and any such person, corporation or firm, and each and every member of such association, order or society, shall have and be protected in the exclusive use of such label or trade-mark, adopted and used for the purpose aforesaid, on compliance with the following requirements:

First-Such person, corporation, firm or association, shall cause to be filed in the office of the secretary of state, a facsimile of such label or trade-mark, accompanied with a written statement, under oath, by such person, or the principal officer of such corporation or association, or some member of such firm, to the effect that the person, corporation, firm or association, in behalf of its members and the members of its order or society, claiming protection in the use of such label or trade-mark, is entitled to the exclusive use of the same; and, in case of an association organized for promoting the welfare of its members, and the members of its order or society, as aforesaid, then a general description shall be given of the class of persons for whom the protection is sought, sufficient to identify them, which may include all members of the order or society, of which the particular association claiming the protection, is a branch; and it must

also appear in such statement, that no other person, corporation, firm or association, has the right to use such label or trade-mark, either in the identical form presented, or in any such near resemblance thereto as would be likely to deceive the public; and also the principal place of business of such person, corporation or firm, and the name and location and purpose of such organized association, and also the class of goods, wares or merchandise to which such label or trade-mark is to be applied; provided, the secretary of state shall not file for record in his office any label or trade-mark, which is identical with any previously filed in his office, nor of such near resemblance to any such previously filed in his office, as to be likely to deceive the public; and, provided, also, that no exclusive rights shall be acquired under this act, to the use of the proper name of any article, or matter of mere description of the quality, value or condition of the article manufactured or sold; nor to the real name of the manufacturer of the article, as against another person of the same name, nor to the geographical name of the locality where the same is manufactured, as against another manufacturer in the same locality.

Second-The payment to the secretary of state of a fee of $5.00 for filing and entering a description of the same upon the books of his office.

c1 Hawaii, § 2671. Any person or firm, or any corporation desiring to secure the exclusive use of any print, label or trademark intended to be attached or applied to any goods or manufactured articles, or to bottles, boxes or packages containing such goods or manufactured articles to indicate the name of the manufacturer, the contents of the packages, the quality of the goods or directions for use, may obtain a certificate of the registration of such print, label or trade-mark in the manner hereinafter provided.

c2 Hawaii, § 2672. Before any one shall receive a certificate of the registration of a print, label or trade-mark, he shall file in the office of the treasurer an application for the registration of such print, label or trade-mark, with a declaration verified by the oath of the applicant; or, if the application be made by a firm or corporation, by the oath of a member of such firm, or an officer of such corporation, that he is or they are,

the sole and original proprietor or proprietors, or the assign or assigns of such proprietor or proprietors of the goods or manufactured articles for which such print, label or trade-mark is to be used, and describing such goods and manufactured articles, and the manner in which such print, label or trade-mark is to be used. Said application shall be accompanied by two exact copies of such print, label or trade-mark.

c3 Hawaii, § 2673. Upon filing such application, the applicant or applicants shall pay to the treasurer a fee of øve dollars.

c4 Hawaii, § 2674. Upon receiving such application so accompanied, and the payment of such fee, the treasurer shall cause the said print, label or trade-mark to be recorded in a book to be kept for that purpose, and shall issue to the appiicant or applicants a certificate of registration under the seal of the treasury: and such certificate of registration shall secure to the applicant or applicants the exclusive use of the said print, label or trade-mark throughout the territory of Hawaii for the term of twenty years from the date thereof.

d Missouri, § 10365. If any mechanic, manufacturer, association or union of workingmen, or other person, shall wish to adopt any particular name, term, design or device as his or their trademark, to designate, make known or distinguish any article of goods, wares or merchandise by him or them manufactured or prepared, he or they may write out a description of such name, term. design or device, describing the same accurately, and sign and acknowledge the same before some officer competent to take the acknowledgment of deeds, and file the same, together with a facsimile of the name, term, design or device for registration in the office of the secretary of state, by leaving two copies, counterparts (of) [or] facsimiles thereof, with the secretary of state; said secretary shall deliver to such mechanic, manufacturer, association or union of workingmen or other person so filing the same, a duly attested certificate of the filing of the same, for which he shall receive a fee of one dollar; such certificate shall, in all suits and prosecutions under this chapter, be sufficient proof of the adoption of such label, trade-mark or form of advertisement, and of the right of such mechanic, man

ufacturer, association or union of workingmen or other person to adopt the same. No label, trade-mark or form of advertisement shall be registered that in any way resembles, or would probably be mistaken for a label or trademark already registered.

• Nebraska, § 4175a. Every person or association or union of workingmen or others that has adopted or shall adopt for their protection any label, trade-mark or form of advertisement, may file the same for record in the office of the secretary of state by leaving two copies, counterparts or facsimiles thereof with the secretary of state. Said secretary shall thereupon deliver to such person, association or union so filing the same a duly attested certificate of the record of the same, for which he shall receive a fee of two ($2.00) dollars. Such certificate of record shall in all actions and prosecutions, under the following three sections be sufficient proof of the adoption of such label, trade-mark or form of advertisement, and the right of said person, association or union to adopt the same.

1 Nevada, § 5040. When a person who has complied with the provisions of section two of this act, uses any peculiar name, letters, marks, device, figures, or other trade-mark or name, cut, stamped, cast or engraved upon, or in any manner attached to or connected with, any article, or with the covering or wrapping thereof, manufactured or sold by him, to designate it as an article of a peculiar kind, character, or quality, or as an article manufactured or sold by him, or if such trade-mark or name be so connected with any bottle, box, cask, or other thing used for holding such article, it shall be unlawful for any other person, without his consent, to use said trade-mark or name, or any similar trade-mark or name, for the purpose of representing any article to have been manufactured or sold by the person rightfully using such trade-mark or name, or to be of the same kind, character, or quality as that manufactured or sold by the person rightfully using such trade-mark or name.

g New Mexico, Laws 1905, p. 63, ch. 24, 1. Any person or persons, firm, corporation or association who manufacture or deal in articles of a commercial nature and wish to retain the exclusive right to the use of a trade

name, trade-mark or label shall make a description of the same in writing, accompanied by a facsimile of such trade-name, trade-mark, or label, which description and application must set forth the class or classes of merchandise to be covered by such trade-name, trade-mark or label, together with a statement that the applicant claims by priority of adoption and employment of the same, exclusive right to the use thereof. Such instrument shall be signed by at least one of the persons or by the officials of the company making application for registration, the whole duly acknowledged, and filed in the office of the secretary of the territory. For the filing of each application and issuing certificate thereof, the secretary shall collect a fee of $5.00. The secretary shall keep a record of each tradename, trade-mark, or label, and it shall be unlawful for any other person, firm, corporation or association to adopt a trade-name, trade-mark or label identical with or similar to one previously registered. A copy of such description of any trade-name, trade-mark or label, certified under the great seal of the territory of New Mexico, shall be prima facie evidence of the facts therein stated. (Enacted March 2, 1905.)

h Oregon, § 4609. Any person, partnership, firm, or private corporation desiring to secure within this state the exclusive use of any name, mark, brand, designation, or description for any article of manufacture or trade, or for any mill, hotel, factory, machine-shop, or other place of business, shall deliver or cause to be delivered to the secretary of state a particular description or a facsimile of such mark, brand, name, designation, or description as he may desire to use.

11 Texas, Art. 318a. All manufacturers or dealers in carbonated goods, mineral waters, soda water, wine, cider, or other beverage, or manufacturers of medicine or other compound requiring the use of kegs, casks, barrels, boxes, syphons, bottles, or any other vessels for containers, upon which the names, brands, marks, or trade-marks, or other designation of ownership or proprietorship is stamped, engraved, etched, blown in, impressed, or otherwise produced upon such boxes, syphons, bottles, or any other vessels for containers, may file in the office of the county clerk of the county in which