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exercise of their abilities. These cases are the more note-
worthy as being cases of public offices to which the incum-
bent is appointed for a term of years, upon a compensation
provided by law, a^d in which he is required to give bond.
If an attorney is to be regarded as an officer, it is in a lower
sense.

We have had pressed upon us by the counsel opposed to
the applicant, the decisions of the courts of Massachusetts,
Wisconsin and Illinois, and of the United States Court of
Claims, adverse to such «e application. While not prepared
to accede to all the general views expressed in those decis-
ions, we do not think it necessary to go into a discussion of
them, as we regard our statute, in view of all the considera-
tions affecting its construction, as too clear to admit of any
reasonable question as to the interpretation and effect which
we ought to give it.

In this opinion Carpenter and Loomis, Js., concurred.

Pardee, J., (dissenting.) In England women were not
admitted to the bar, and this rule of exclusion obtained
both in the colonial and our state judicial systems. I think
therefore that whenever the legislature has spoken of the



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MAY TERM, 1882. 189

Goodman v. Meriden Britannia Co.

admission of ^^ persons " to the bar it referred to persons not
affected by this rule ; and that it is the duty of the court to
give effect to the meaning of the statute as thus ascertained ;
to follow rather than to precede the legislature in declaring
that it has changed its mind.



Aabon C. Goodman vs. The Meeiden Beitannia

Company.

A contract was entered into by the vendor and vendee of certain trade-
marks, by which the vendor was to receive $500 per month, payable
monthly in advance, for ten years, with the following provision >-*
*' The payment of said sum shall at all times be dependent upon tb6
vendee being fully secured in the exclusive use of said trade-marks, and
if any other party shall establish his right to use either of them said
payments shall thereupon cease." The vendee was undisturbed in the
exclusive use of the marks and made the monthly payments for five
jet£n, when the debt was attached by a creditor of the vendor. Held
that the securing of the vendee in the exclusive use of the marks was
not a condition precedent of the obligation to make the monthly pay-
ments, but that a present indebtedness was created for the whole
amount which could be taken by foreign attachment.

The obligation of the vendee to continue to make the monthly payments
would of course cease if at any time any other party should establish his
right to use the marks.

Scire Facias upon a process of foreign attachment;
brought to the City Court of the city of Hartford and by
the appeal of the defendants to the Superior Court for
Hartford County, and heard in that court, upon a denial of
indebtedness on the part of the defendants, before Beards-
Zey, J. The action in which the defendants were garnisheed
was brought against William Rogers. The following facts
were found by the court.

On March 16th, 1868, the following contract was entered
into by the defendants with William Rogers and William
Rogers, Jr., the latter being the William Rogers above
mentioned : —



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140 HARTFORD DISTRICT.

GkKxlman v. Meriden Britannia Co.

" This agreement made and concluded this 16th day of
March, 1868, by and between the Meriden Britannia Com-
pany, a joint stock corporation, organized and existing
under the laws of the state of Connecticut relating to joint
stock corporations, and located at Meriden, pai*ty of the
first part, and William Rogers and William Rogers, Jr.,
both of Hartford, Connecticut, parties of the second part,
witnesseth —

" That the party of the first part, in consideration of the
promises, covenants and agreements of the parties of the
second part herein contained, hereby promises, covenants
and agrees, to and Vith said parties of the second part, to
pay the said parties of the second part jointly, or to the
survivor of them, in the case of the death of either of them,
the sum of five hundred dollars per month, payable in
advance each month, for the period of one hundred and
twenty months, commencing on the 20th day of March,
1868.

" In consideration of said promise and agreement of said
party of the first part, said parties of the second part do
for themselves both jointly and severally covenant, promise
and agree with said party of the first part, as follows,
to wit:

" 1st. That they will, and each of them will, during the
period aforesaid, use the influence they have in the market
to secure trade for said party of the first part in the articles
of silver-plated forks and spoons and other silver-plated
ware.

" 2d. That said party of the first part shall have and
enjoy the sole and exclusive right to the use of certain trade-
marks heretofore used by the parties of the second part, to
wit: *t Wm. Rogers & Son, A. A;' also '1847, Rogers
Bros. A. I.,' upon all silver-plated forks and spoons made or
sold by said parties of the first part after the 20th of March,
1868. And said party of the first part may authorize the
use of said trade-marks, or either of them, upon spoons and
forks manufactured or sold by other parties, where said
party of the first part is to be benefited by the manufacture
or sale thereof.



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MAY TERM, 1882. 141

Groodman v. Merideu Britannia Ck>.

" That they the said parties of the second part will not^
and neither of them shall use either of said trade-marks,
during all the period aforesaid, or any other trade-mark or
stamp in which the name of Rogers shall be used or form a
part thereof, or engage in the business of making spoons or
forks, either directly or indirectly.

"That they will not allow, suffer or permit any other
person or persons, party or parties, to use, infringe upon, or
imitate either of the trade-marks aforesaid, to wit : * J Wm.
Rogers & Son, A. A.,' and ' 1847, Rogers Brothers, A. I.,' and
that they will not permit, suffer or allow any other person
or party, persons or parties, to use the name of the said
William Rogers or of the said William Rogers, Jr., upon
any stamp or trade-mark upon silver-plated forks and spoons
or other plated ware, during the period aforesaid; but that
the right of the said party of the first part to the use of the
said trade-marks and each of them, and to the use of the
name of ihe said William Rogers, and of said William Rog-
ers, Jr., upon forks and spoons, shall be sole and exclusive
to the said party of the first part.

" And whereas certain parties in Hartford, to wit : Thomas
Birch and William J. Pierce, are now using the trade-mark,
* I William Rogers & Son, A. A.,' it is understood that the
aforesaid payment is not to commence until said parties of
the second part, at their own expense, shall have enjoined
said Birch and Pierce, and prevented the use of said trade-
mark by them,

"And it is further understood and agreed, that the pay-
ment of said sum shall at all times be dependent upon said
party of the first part being fully secured and protected in
the exclusive use of said trade-marks, and that if any other
person or party shall establish their right to use either of
the aforesaid trade-marks, said payments shall thereupon
cease. But all suits that may be necessary to defend them
in the use of said trade-marks, shall be maintained at the
expense of said parties of the first part, except only in the
case of said Birch and Pierce ; and if necessary to use the
names of said WiUiam Rogers and William Rogers, Jr., or



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142 HARTFORD DISTRICT.

Goodman o. Meriden Britannia Co.

either of them, in any suit for the protection of said parties
of the first part, the same is hereby authorized.

" Said parties of the second part further promise, covenant
and agree that the said William Rogers shall, if able, several
times in each year, when required by said party of the first
part, visit the large Atlantic cities and solicit orders for said
party of the first part, said party of the first part to pay
his necessary traveling expenses.

"It is also expected that the said William Rogers, Jr.,
will also from time to time travel to solicit orders, in which
case his necessary traveling expenses shall be paid by said
party of the first part, but such services shall not be com-
pulsory, and the omission of either said William Rogers
or William Rogers, Jr., to travel shall not invalidate this
contract.

" It is also expected that the said William Rogers and
William Rogers, Jr., will from time to time render service
during said period to said party of the first part at the
factory or office of the party of the first part. But an
omission to perform the same shall not invalidate this con-
tract. And no compensation additional to the payment of
said sum of five hundred dollars per month is to be paid
said parties of the second part, or either of them, for any of
the services aforesaid.

" The said party of the first part also agrees to withdraw
all suits in law or equity now pending against said William
Rogers or William Rogers, Jr., for the benefit or in the
name of the Meriden Britannia Company, and all actions
and grounds of action against them, or either of them, are
hereby discharged by said Meriden Britannia Company."

On the 1st day of January, 1872, the following modifica-
tion of the contract was made : —

" The Meriden Britannia Company agree to pay the full
amount called for by this contract from January 1, 1872,
and to waive the performance by the parties of the second
part of all conditions in this contract, in relation to the use
of the name Rogers by the concern in Hartford, and con-
sider and admit the claims of Wm. Rogers and Wm. Rog-



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MAY TERM, 1882. 148

Goodman 9. Meriden Britannia Co.

ers, Jr., to the full amount of ($500) five hundred dollars
per month, as specified in this contract, to be in full force
from January 1, 1872, and thereafter until the expiration
of this contract. Meriden Britannia Co.,

hy H. C. Wilcox, President:'

William Rogers, senior, died February 13th 1873. The
present plaintiff brought his action against William Rogers,
(the William Rogers, Jr., of the foregoing contract,) on the
21st of February, 1873, factorizing the defendants as his
debtors. Due service was made on them, and in the action
the plaintiff recovered a judgment against Rogers for
$2,749.57 damages, and $82.25 costs of suit. Demand was
duly made on the execution upon the defendants, but they
denied all indebtedness to Rogers. There was in fact no
indebtedness except such as grew out of the contract
mentioned.

Before February 21st, 1878, the defendants had paid to
the Rogerses all sums of money falling due to them under
the contract.

Upon these facts the court held the defendants to be
indebted to William Rogers (defendant in the factorizing
suit) and rendered judgment for the plaintiff. The defen-
dants brought the record before this court by a motion in
error.

F. Chamberlin and J. P. Piatt, for the plaintiffs in error.

A debt due, but payable in the future, may be garnisheed;
but all the authorities agree that such claim, in order to be
gamishable, must be an absolute debt, which will certainly
become payable upon the lapse of time, and that a contin-
gent liability, which may or may not become a debt due, can
not be the subject of garnishment. This is the very
l^^g^age of Shaw, C. J., in Wyman v. Hichhorn^ 6 Cush.,
264. The check of a third party, payable to the order of
the supposed trustee, is not attachable by trustee process,
because there is a possibility that it may never be paid.
Lane v. Felt, 7 Gray, 491; Hancock v. Colyer^ 99 Mass.,
187; Knight v. Bowley, 117 id., 551. "The debt from the



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144 HARTFORD DISTRICT.

GkxMlman v. Meriden Britannia Ck>.

garnishee to the defendant, in respect to which it is sought
to charge the former, must moreoyer be absolutely payable,
at present or in future, and not dependent on any contin-
gency. If the contract between the parties be of such a
nature that it is uncertain and contingent whether anything
will ever be due by virtue of it, it will not give rise to such
a credit as may be attached ; for that cannot properly be
called a debt, which is not certainly and at all events paya-
ble, either at the present or at some future period." Drake
on Attachment, § 551.

By the contract of March 16th, 1868, the Rogerses agree :
— Ist. That for " 120 months " they will use their influence
in the market to secure trade for the Meriden Britannia
Company. — 2d. That the company shall enjoy the sole and
exclusive right to the use of certain trade-marks, theretofore
used by the Rogerses, upon all silver-plated forks and spoons
made by the company after March 20th, 1868. — 3d. That
they will not, during such ten years, use either of said trade-
marks, or any other trade-mark, embracing the name of
Rogers. — 4th. That they will not engage, directly or
indirectly, during such period, in the business of making
spoons or forks. — 5th. That they will not permit any other
party to use, infringe or imitate either of said trade-marks.
— 6th. That they will not allow any other party to use the
name of Wm. Rogers or of Wm. Rogers, Jr., upon any
stamp, upon silver-plated forks and spoons or other plated
ware. — 7th. That Wm. Rogers should, if able, visit the
large Atlantic cities and solicit orders, several times each
year. The Meriden Britannia Company agree, in considera
tion of these promises: — ^Ist. To pay to the Rogerses
jointly, or to the survivor of them, JJ500 per month, in
advance, for 120 months, from March 20th, 1868.— 2d. To
withdraw all suits pending against them, and discharge all
grounds of action. — 3d. That all spoons and forks upon
which such trade-marks might be used should be plated
with certain prescribed quantities of silver. Both parties
agree : — ^Ist. That said payment shall not commence until
the Rogerses shall, at their own expense, have enjoined



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MAY TERM, 1882. 145

Goodman v, Meriden Britannia Co.

Birch and Pierce, (who were then using one of the trade-
marks), and prevented its use by them. — 2d. That the pay-
ment of $500 per month in advance shally at all timeSy be
dependent upon the Meriden Britannia Company being fully
secured and protected in the exclv^ve use of said trade-^marks.
— 3rd. That if any other party shall establish its right to
use either of said trade-markSj said payments shall thereupon
cease. The contract also recites that the Eogerses are
expected to render service during the term at the company's
factory or office, and that Wm. Rogers, Jr., is expected to
travel to solicit orders, but provides that the omission of
either to travel to solicit orders or perform service at the
factory or office^ shall not invalidate the contract^ and that no
compensation additional to the $500 per month shall be paid
on account of their services.
We submit :

1. That the parties to this contract expressly made each
monthly payment contingent. Such payment was "a^ all
times to be dependent upon the Meriden Britannia Company
being fully secured and protected in the exclusive use of
the trade-marks." It was, therefore, at all times, uncertain
whether any future monthly payment would become due,
for, at all times, there must have been a possibility that the
company would not be fully protected in the exclusive use
of the trade-marks. Besides, if any other party established
his right to use either of the trade-marks, the payment was
thereupon to cease. This was a contingency which must
always have been a possibility liable to put an end to the
monthly payments.

2. The provisions of the contract clearly indicate that
the parties intended substantial performance to be a condi-
tion precedent to a continuance of the contract. Expressio
unius est exclusio alterius; and while the contract states
that it is expected that the Rogerses will travel and render
service at the factory, it expressly provides that a failure so
to do shall not invalidate the contract. Manifestly a failure
to perform the express agreements would invalidate it.

8. The nature of the agreements to be performed by tha^
Vol. l.— 10



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146 HARTFORD DISTRICT.

€K>odman v. Meriden Britannia Co.

Rogerses, and the general character, spirit and purpose of
the entire contract, show that performance by them was
intended to be a condition precedent to payment. The
object of the contract was to secure to the company a
monopoly of certain trade-marks. Those trade-marks had
derived their value from the Rogerses, and their future
worth to the company depended upon their fidelity to their
covenants. Without continued performance by them, there
would be such a failure of consideration as to bar their
right to payment.

4. To hold the company's covenant to pay to be inde-
pendent of the several covenants of the Rogerses to per-
form, would manifestly work great injustice. Such con-
struction would make the company liable for the whole
f 60,000, although the death of both the Rogerses within a
few days after the execution of the contract might make it
valueless. Such construction would oblige the company to
continue the monthly payments after their failure to secure
to it the exclusive use of the trade-marks had removed the
consideration of the contract. The importance of such
** exclusive use " in the minds of the parties is shown by the
provisions, that " payment is not to commence until the use
of the trade-marks by certain parties in Hartford shall have
been enjoined, at the expense of the Rogerses ; " and *' that
payment shall at all times be dependent upon the company
being fully secured and protected in such exclusive use."
Such construction would make the company liable for the
full $60,000, although the Rogerses, by a refusal to use their
influence to secure trade, by a personal use of the trade-
marks, by engaging in the business of making spoons, or by
a grant to others, might have violated the letter and spirit
of all their covenants, and have made the contract entirely
worthless to the company. " The question whether mutual
covenants ai^e dependent, is one," says Shaw, C. J., " which
has been much agitated in courts of law, and sometimes has
been the subject of very subtile distinctions, but it depends
upon the intention of the parties and the nature of the
respective stipulations, .and is to be determined rather from



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MAY TERM, 1882. 147

Gk>odman v. Meriden Britannia Co.

the sense of the whole taken together, than upon any
particular form of expression." And our own court in the
case of Leonard v. Dyer^ 26 Conn., 172, adopted the rule
stated by Chief Justice Tindal, and approved the same in
the late case of Curtis v. Alvard^ 45 Conn., 671 — "that
the question whether covenants are to be held dependent or
independent of each other is to be determined by the inten-
tion of the parties as it appears on the instrument, and by
the application of common sense to each particular case ; to
which intention, when once discovered, all technical forms
must give way." It was undoubtedly the intention of the
parties to this contract that their mutual covenants should
be dependent ; that payment should be contingent upon the
performance by the Rogerses of their covenants ; and that
a failure on their part to fully secure to the company such
a monopoly of their influence and their trade-marks as this
contract provided for, should release it from all obligation
to pay. This contingent character of the indebtedness is
not in any way changed or affected by the waiver which
grows out of a single clause in the contract, and relates to
that clause alone.

C. JE. Perkins and F. L. Hungerford^ for the defendant in
error, cited Enos v. Tuttle^ 3 Conn., 27 ; Thompson v. Stetih
art, id., 188 ; Fiteh v. Waite, 6 id., 117 ; Todd v. Hall, 10 id.,
544 ; Culver v. Parish, 21 id., 408 ; Cohum v. City of ffarU
ford, 88 id., 290 ; Curtis v. Alvord, 45 id., 569 ; Burke v.
Whiteomh, 18 Verm., 421 ; Downer v. Topliff, 19 id., 899 ;
Downer v. Curtis, 25 id., 650 ; Sargenfs Admr. v. KimhalVs
Admr., 87 id., 820 ; Dwinel v. Stone, 80 Maine, 884 ; Smith
V. Cal^on, 87 id., 281; Bicker v. Fairbanks, 40 id., 48;
Cutter v. Perkins, 47 id., 557 ; Ware v. Qowan, 65 id., 584 ;
Webber v. Doran, 70 id., 140 ; Thomdike v. DeWoTf, 6 Pick.,
120 ; Holbrook v. Waters, 19 id., 854 ; Wheeler v. Bowen,
20 id., 568 ; Boston Bank v. Minot, 8 Met., 507 ; 1 Swift
Dig., 228; 2 Parsons on Cont., 16.

Pabdee, J. (After stating the case.) The question to be



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148 HARTFORD DISTRICT.

Goodman v. Meridea DritaimU Co.

answered is, did the defendants owe a debt to William
Rogers, Jr., on February 21st, 1873, by virtue of their con-
tract of March 16th, 1868 ?

The provisions bearing upon this are, that William
Rogers and William Rogers, Jr., claiming to be sole owners
of a trade-mark in connection with the manufacture of
silver-plated ware, in consideration of the sum of |I60,000,
payment to be made in one hundred and twenty equal
monthly installments in advance, sold to the defendant the
sole and exclusive right to use the mark for the term of ten
years and promised not to attempt to grant any right to use
it during that term to any other person. But inasmuch as
both parties knew that by reason of the fact that Birch and
Pierce were then in the actual use of it under claim of
grant from the vendors, and intended to continue such use,
the latter could not put the vendee in possession of the
right sold, it was made a condition precedent to the exist-
ence of any debt that the vendors should cause Birch and
Pierce to be placed under permanent injunction. It was
also agreed that if at any time during the term any person
should prove in a judicial proceeding instituted for that
purpose that the vendors were not at the time of the execu-
tion of the contract the owners of the right attempted to
be conveyed, no installments should thereafter become pay-
able. This provision does no more for the defendant than
the law would have done in its absence; and these two
possibilities, namely, that a vendor may not have title to the
thing sold, although he has and delivers possession, and
that he may fraudulently attempt to sell to A that which he
had previously sold and delivered to jB, attend every con-
tract of sale; and if permitted in this, would is( every
instance of payment deferred prevent the existence of an
attachable debt ; and this in oases in which payment is to
be made once for all, as well as in those where it is to be
made in installments ; in cases where the evidence is in the
form of a note negotiable, or of a charge on book, as well as
in those where the promise rests in parol. But they are
neither of them, as a matter of legal necessity, a condition



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MAY TERM, 1882. 149

Goodman v, Meriden Britannia Ck).

precedent to the existence of indebtedness for the price of
property sold and delivered.

Moreover, in this case the parties made a sharply defined
distinction between the certainty that the grantors could
not deliver anything of value under the contract until
Birch and Pierce should be placed under injunction, and the
bare possibilities either that some person of whom the
defendant had neither knowledge nor suspicion should at
some time be able 'to prove himself the owner of the mark,
or that the vendora would fraudulently undertake to sell
to another that which they had previously sold and deliv-
ered to it. Until the defendant was made sure that no
harm could come to it from the claim of Birch and Pierce
it would neither pay nor come under obligation to pay ;
being certified upon that point it in 1872 withdrew this
condition precedent and began to pay. Having possession
of the exclusive right purchased, it established the existence
of the debt for the price in its entirety by beginning and
continuing to pay in advance installments thereon as
fractions of a whole. The possibility of failure of title
then existed and co-existed with the recurring payments to
the end of the term ; but the defendant did not by reason
thereof require the vendors, nor did they permit it, to post-
pone the payment until the expiration of the term ; did not
require them, nor did they permit it, to postpone for a day
even ; did not require, nor did they furnish, security for the



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