
    E. W. Burt and Company, Incorporated, vs. Coes and Young Company.
    Suffolk.
    March 18, 1912.
    May 24, 1912.
    Present: Rugg, C. J., Morton, Braley, Sheldon, & DeCourcy, JJ.
    
      Equity Pleading and Practice, Appeal.
    On an appeal from a decree dismissing a bill in equity after overruling the plaintiff’s exceptions to a master’s report, the evidence on which the master’s findings were based was not before this court and the only question was whether the decree lawfully could be entered upon the facts found and stated in the report of the master and the memorandum of the trial judge. It being manifest .that such was the case, the decree was affirmed.
   DeCourcy, J.

This is a bill in equity brought to restrain the defendant from using the trade-name “Flexible Arch,” and from advertising its shoes by means of a pictorial representation of a shoe bent at the arch thereof. The case was referred to a master and subsequently was heard on the plaintiff’s exceptions to the master’s report, by a single justice of this court. The exceptions were overruled, the master’s report confirmed, and a final decree was entered dismissing the bill.

The plaintiff’s appeal from the decree does not bring the evidence before us, and we cannot consider the exceptions based on the contention that the master’s findings are not warranted by the evidence. The only question before us is whether the decree lawfully could be entered upon the facts found and stated in the report of the master and the memorandum of the single justice; and manifestly it could. Without reciting the facts at length, it was found that the defendants acted in good faith in advertising their shoes as “ Coes & Young’s 7.00 Flexible Arch-Support Shoes,” and that the purchasing public were not likely to be, and in fact were not deceived into buying them for the plaintiff’s “Flex-Arch” shoes. The plaintiff proved no exclusive right to make, advertise and sell shoes with a flexible shank or arch for the prevention and cure of flat foot, or to use pictorial illustrations of a shoe bent at the arch to show its flexibility; and no infringement of trade-mark rights or unfair competition was established.

E. N. Curtis, for the plaintiff.

G. H. Maxwell, for the defendant, was not called upon.

Decree affirmed with costs. 
      
      
        Morton, J.
     