Opinion of the Court. 291 U.S. Plainly, in such circumstances the certificate of overassessment without more does not import a promise by the Commissioner to refund the amount there certified instead of applying it as a credit upon the tax of an earlier year. At most the promise to be implied is one to refund the excess after there has been a computation of the taxes unpaid for other years and an ascertainment of the balance. The statement of the account is not unconditional and definitive. It is provisional and tentative. Finality was lacking until there was an agreement as to credits. Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 512; 114 N.E. 846. The events that followed confirm this interpretation of the effect of the transaction. Upon a computation of the credits the final balance was ascertained to be in favor of the Government. The balance thereby fixed was reported to the taxpayer. After the schedule of refunds and credits had been signed by the Commissioner, the Collector transmitted to the taxpayer a new statement of account by which it was clearly made to appear that the overassessment had been credited upon the tax for 1917, and that after such credit there was still owing from the taxpayer a balance of $5,829.07, which, together with the accrued interest, was thereupon collected. Then for the first time was there a final ascertainment of the balance upon consideration of both sides of the account, the debits and the credits. The taxpayer did not object to the account as submitted in its final form. Far from objecting, it paid the resulting balance, and by this act as well as by silence conceded the indebtedness. Indeed, there was more than an account stated; by force of voluntary payment there was also an account settled. Lockwood v. Thorne, 18 N.Y. 285, 292. The statute of limitations is a bar to the recovery by the petitioner of the balance paid to the Government upon the demand of the Collector. This is not disputed. It is equally a bar to the recovery of any item that entered into the account and determined the balance as thus definitively adjusted. The judgment is Affirmed. MR. JUSTICE STONE took no part in the consideration or decision of this case. FEDERAL TRADE COMMISSION v. ALGOMA LUMBER CO. ET AL. CERTIORARI TO THE CÍRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 240. Argued December 14, 15, 1933-Decided January 8, 1934. 1. The Federal Trade Commission Act makes the Commission's findings of fact conclusive if supported by evidence; and, upon appeal from the Commission's order, the Circuit Court of Appeals is not at liberty to make its own appraisal of the testimony and pick and choose for itself among uncertain and conflicting inferences. P. 73. 2. The Commission ordered Pacific Coast lumber dealers to desist from the practice of selling, under the trade name of "California White Pine," lumber made from "Western Yellow Pine" (Pinus ponderosa), finding it an unfair and prejudicial method of competing with lumber made from the true White Pines (Pinus strobus and closely related species), a product of better quality and commanding a higher price. Held: (1) That the evidence supported the Commission (a) in finding that the lumber sold by the trade name "California White Pine" is inferior to the true white pine lumber; (b) in finding that the trade name is misleading and causes both confusion and prejudice to retailers, architects, builders, and consumers. Pp. 76, 77. (2) The fact that "California White Pine" is listed as a trade equivalent of Pinus ponderosa in a list of standard commercial names for lumber, forming part of a report of "Simplified Practice Recommendations " issued by the Bureau of Standards, is of little weight as evidence, considering the nature of the Bureau's function and the basis and purpose of its recommendations. P. 73. 3. In being sold a substitute in the name of a better article, the consumer is prejudiced, even though he save money by it; the public is entitled to get what it chooses, though the choice may be dictated by caprice, or by fashion, or perhaps by ignorance. P. 78. 4. The practice of marketing a cheaper kind of lumber under the name of a better and more expensive kind, is prejudicial to honest dealers and manufacturers; orders that would come to them if the lumber were rightly named, are diverted to others whose methods are less scrupulous. P. 78. 5. The facts that a deceptive trade name was adopted without fraudulent design and has long been in use, are not a defense under the Act if its continued use is in the circumstances unfair and prejudicial to the public interest. P. 79. 6. In this case the evidence contradicts the proposition that the name California White Pine," misleading in the beginning, had acquired an independent or secondary meaning rendering it innocuous. P. 80. 7. A trade name, legitimate in one territory, may generate confusion when carried to another, and must be given up. P. 81. 8. A method of competition may be unfair without being fraudulent in law; but equity perceives a kind of fraud in clinging to a benefit begot of misrepresentation, however innocently made. P. 81. · 9. The contention that the proceedings of the Trade Commission in this case were not "to the interest of the public," based on the thought that, by encouraging the use of Pinus ponderosa the eastern forests of Pinus strobus would be conserved, is rejected. P. 81. 10. In requiring that the word "White" be omitted from the name of respondent's product, the Commission did not abuse its discretion. P. 81. 64 F. (2d) 618, reversed. CERTIORARI, 290 U.S. 607, to review a judgment of the Circuit Court of Appeals annulling an order of the Federal Trade Commission. Assistant Attorney General Stephens, with whom Solicitor General Biggs and Messrs. Robert E. Healy, Martin A. Morrison, and Eugene W. Burr were on the brief, for petitioner. Mr. Allan P. Matthew, with whom Messrs. Warren Olney, Jr., and Carl I. Wheat were on the brief, for respondents. By leave of Court, Mr. Edward S. Rogers filed a brief as amicus curiae. MR. JUSTICE CARDOZO delivered the opinion of the Court. In May, 1929, the Federal Trade Commission filed and served complaints against a group of fifty manufacturers on the Pacific Coast charging "unfair competition in interstate commerce " in violation of § 5 of the Federal Trade Commission Act. 38 Stat. 717, 719, c. 311, § 5; 15 U.S.C. § 45. After the service of answers the proceedings were consolidated and many witnesses examined. The outcome was a series of reports sustaining the complaints as to thirtynine manufacturers, with orders to "cease and desist " from the practice challenged as unfair. Twelve companies thus enjoined petitioned the Circuit Court of Appeals for the Ninth Circuit to review the orders of the Commission. Such review being had, the orders were annulled. 64 F. (2d) 618. A writ of certiorari brings the case here. The practice complained of as unfair and enjoined by the Commission is the use by the respondents of the words "California white pine" to describe lumber, logs or other forest products made from the pine species known as Pinus ponderosa. The findings as to this use and its effect upon the public are full and circumstantial. They are too long to be paraphrased conveniently within the limits of an opinion. We must be content with an imperfect summary. The respondents are engaged in the manufacture and sale of lumber and timber products which they ship from Opinion of the Court. 291 U.S. California and Oregon to customers in other states and foreign lands. Much of what they sell comes from the species of tree that is known among botanists as Pinus ponderosa. The respondents sell it under the name of "California white pine," and under that name, or at times "white pine" simply, it goes to the consumer. In truth it is not a white pine, whether the tests to be applied are those of botanical science or of commercial practice and understanding. Pine trees, the genus "Pinus," have for a long time been divided by botanists, foresters and the public generally into two groups, the white pine and the yellow. The white pine group includes, by common consent, the northern white pine (Pinus strobus), the sugar pine and the Idaho white pine. It is much sought after by reason of its durability under exposure to weather and moisture, the proportion of its heartwood as contrasted with its sapwood content, as well as other qualities. For these reasons it commands a high price as compared with pines of other species. The yellow pine group is less durable, harder, heavier, more subject to shrinkage and warping, darker in color, more resinous, and more difficult to work. It includes the long leaf yellow pine (Pinus palustris), grown in the southern states, and the Pinus ponderosa, a far softer wood, which is grown in the Pacific coast states, and in Arizona and New Mexico, as well as in the "inland empire" (eastern Washington, Oregon, Idaho, and western Montana). Of the varieties of white pine, the northern or Pinus strobus has been known better and longer than the others. It is described sometimes as northern white pine, sometimes as white pine simply, sometimes with the addition of its local origin, as Maine white pine, Michigan, Wisconsin, Minnesota, Canadian, New Brunswick. It is native to the northeastern states and to the Great Lakes region, as far west as Minnesota. It is found also in Canada and |