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    Chicago Railway Equipment Company, Appellee, v. National Hollow Brake Beam Company. On Appeal of Louis L. Woods, Appellant. Chicago Railway Equipment Company et al., Appellees, v. National Hollow Brake Beam Company. On Appeal of Chicago Title & Trust Company, Trustee, etc., Appellant.
    Gen. No. 15,949.
    Gen. No. 15,982.
    1. Corporations—restoration of dividends. Where upon, cross-bills of the pledgee and the trustee in bankruptcy of a minority holder it is alleged that a majority stockholder has wrongfully caused the declaration of a dividend and refuses to allow the shares of the minority holder to participate therein, except on conditions amounting to ratification of prior wrongful acts of the majority holder, the decree properly requires the dividend so wrongfully

      declared to be refunded to the corporation by the majority stockholder, rather than ordering dividend payments to be made to the cross-complainants.
    2. Pledges—rights of pledgee of corporate stock. The pledgee of corporate stock acquires no greater rights than the pledgor possesses at the time of the pledge.
    3. Bankruptcy—rights of trustee. The trustee in bankruptcy of a corporate stockholder acquires nothing but the rights and remedies of the stockholder.
    4. Courts—stare decisis. A clearly and definitely expressed opinion by the Supreme Court as to the rights in corporate stock, though not in its strict sense an adjudication as against the stockholder, will be followed by the Circuit and Appellate Courts in further litigation involving the same stock.
    5. Res adjudicata—what constitutes. The fact that a cross-bill setting up among other things rights in corporate stock is dismissed for want of jurisdiction as not germane to the original bill, is not conclusive that such rights were not adjudicated, the same matters on which the rights are based having been set up by way of amended answer to the original bill.
    6. Res adjudicata—what constitutes. Where a cross-bill is dismissed as not germane as to questions of accounting, such fact is not conclusive as against other questions having been adjudicated which were incorporated also in the answer and in another cross-bill.
    7. Corporations—estoppel of stockholder. Where a stockholder has participated with full knowledge in acts of the corporation ratifying particular transactions, his subsequent pledgee and his trustee in bankruptcy cannot attack such transactions.
    8. Costs—solicitors’ fees. An allowance of $125 for solicitors’ fees and expenses in procuring a decree on a cross-bill in injunction proceedings is not so small as to justify an interference with the discretion of the trial judge.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 7, 1912.
    H. H. C. Miller and W. S. Oppenheim, for Louis L. Woods, appellant.
    Defress, Buckingham, Ritter & Campbell, for appellees.
    Gregory, Poppenhusen & McNab, for Chicago Title & Trust Company, trustee, appellant.
   Mr. Justice Brown

delivered the opinion of the court.

The two appeals which are herein considered together (having been consolidated for hearing by order of the court on agreement of the parties) are by Louis L. Woods and the Chicago Title & Trust Company, respectively, from a decree of the Circuit Court of Cook county on cross-hills filed in the litigation entitled The Chicago Railway Equipment Company v. National Hollow Brake Beam Company et al., in which the decree of the Circuit Court rendered May 21, 1909, on the original bill was the subject of the appeal No. 16001, in this court. We have rendered a decision and handed down an opinion in that appeal, and have also decided and delivered opinions on appeals from a decree of the Circuit Court rendered May 25, 1909, on a cross-bill of the National Hollow Brake Beam Company in said litigation. Those appeals were by the National Hollow Brake Beam Company and by the Chicago Railway Equipment Company, respectively. They were numbers 16002 (see post, 619) and 15948 (see ante, 571) in this court.

The cross-bills on which the decree now under consideration was rendered on June 30, 1909, were four in number, denominated in said decree for convenience (with reference to the various cross-hills involved in the litigation) Cross Bill No. 2, Cross Bill No. 3, Cross Bill No. 4 and Cross Bill No. 5. A petition for solicitor’s fees filed jointly by two of the cross-complainants was also disposed' of by the decree as hereinafter indicated. Before stating the findings and orders of the decree it will he well to note the more material allegations and prayer of each of the cross-bills 2 and 3, which are the subjects of the appeals herein disposed of.

• Cross-bill No. 2 was filed by Louis F. Woods, who, after reciting the pendency of the original bill to which he was a defendant, and his appearance and answer thereto, states, according to his view of the same, (which accords with the Equipment Company’s as set forth in the original bill,) the relations between the Equipment Company and the Beam Company (which have been the subject of the great amount of litigation alluded to in our opinion in 16001) down to the time of the so-called Bent Beduction Contract made by the acceptance by the Equipment Company and the Beam Company of Laughlin’s proposition of March, 1898 (mentioned in our opinion in 16001). He then charges that on July 19, 1898, Laughlin made a proposition to the stockholders of the Beam Company for a release of the so-called rent exceeding five thousand dollars per annum, on condition that Laughlin would take up all the shares of stock of the Beam Company which might be presented to the American Trust & Savings Bank during October, 1898, and pay the face value thereof in money or bonds of the Equipment Company; that on September 10, 1898, the directors of the Beam Company authorized the reduction of rent on these terms; that the Equipment Company in accordance with the contract of rent reduction, did on October 1, 1898, pay to the American Trust & Savings Bank as trustee $122,500 in cash and its bonds to the amount of $285,000 and delivered to Laughlin 10,000 shares of its capital stock, and subsequently paid to the Beam Company $10,000 for its machinery and office fixtures; that at this time Laughlin and Leigh were each owners of 8,962 shares of the capital stock of the Beam Company and have so continued except as in the said cross-bill stated.

Further, that from 1888 to 1890 the relations of Laughlin and Leigh were very intimate and confidential, and Laughlin was Leigh’s lawyer; that Laughlin induced Leigh to act as his agent about the payments by the Equipment Company in the “rent reduction” arrangement, “and informed Leigh that when said transaction was completed and the shares of stock of the other stockholders of the Beam Company were purchased with the money and bonds deposited with the American Trust & Savings Bank as trustee, that then he and Leigh would he the equal owners of all the assets of the Beam Company and would divide the same between them and induced the said Leigh to carry through said negotiations and also personally to buy with, the assets so placed by the Equipment Company in the American Trust & Savings Bank practically all the other shares of stock of said other shareholders in the Beam Company, and that said Laughlin further induced said Leigh, by reason of his position as said Leigh’s attorney and of his promise as above stated, not to present his shares of stock in said Beam Company to the American Trust & Savings Bank as provided for in said Laughlin’s proposition to the Beam Company and accepted by it under date of September 10, 1898.”

Further, that out of the cash and bonds turned over to the savings bank as trustee and with $5,000 additional taken from the treasury of the Beam Company, Laughlin- acquired 24,798 shares of the stock of the Beam Company (which amount did not include Leigh’s or Laughlin’s stock), and afterwards acquired enough more shares, exclusive of those theretofore owned by Laughlin and Leigh, to make 26,223 shares; that all the money and mortgage bonds delivered to the savings bank represented an asset of the Beam Company; that by the payment of said cash and bonds the rent to be received by the Beam Company was reduced from over $55,000 a year to $5,000 a year for the nine succeeding years; that in anticipation of this “rent reducing” transaction, the Beam Company purchased or redeemed from various of its shareholders 5,273 shares of stock and retired the same.

Further, that Laughlin appropriated to his own use all the shares of stock so purchased by the moneys and obligations of the Equipment Company and the $5,000 of the Beam Company’s money, and has refused to account to the Beam Company for the balance of the bonds and cash not so used, and “now claims to be the owner of all of said shares of capital stock of both of said companies so acquired by him with the assets of the Beam Company, which were paid by the Equipment Company for the purpose of securing a reduction of the so-called rent to said sum of $5,000 per annum; ’ ’ that Laughlin in the year 1900 “broke off his friendly relations with Leigh and then announced that he personally was the owner of said 26293 shares of stock so purchased and also of the balance of the fund paid by the Equipment Company to the American Trust & Savings Bank for the purpose of securing a reduction of thé so-called rent of the Beam Company, and repudiated his agreement with said Leigh to divide equally any part of the assets of the Beam Company, and claimed that said Leigh was the owner of 8962 shares of the capital stock of said Beam Company and that he,- said Laughlin, was the owner of over 35,000 shares of the capital stock of said Beam Company, and that the remaining assets of said company would be distributed between them in accordance with the ownership of said shares of stock.”

Further, that through his domination of the Beam Company by his purchases of the stock presented to the savings bank in October, 1898, Laughlin has caused the balance of the assets of the Beam Company to be distributed to himself and one Kern, who claims to be the owner of 1,325 shares of stock, excepting $3.00 a share dividend paid to Leigh on his stock; that “on or about January 3, 1905, Laughlin caused another dividend” (called in the decree hereinafter described and appealed from, Dividend 36) “of $1.00 per share to be declared by said Beam Company, but has declined to allow the stock owned by said Leigh to share in said dividend unless the same was deposited in the treasury of the Beam Company under such terms as would practically ratify all of -the misdeeds and wrongs committed by said Laughlin against said Beam Company and said Leigh, and that such dividend has never been paid on such shares of stock so owned by said Leigh;” that all of the property of the Beam Company at present is real estate worth less than $50,000, on which Laughlin has caused a trust deed to be placed in his favor for $39,000, and claims against the Equipment Company of about $60,000, and that all the other assets of the Beam Company have been appropriated by Laughlin to his own use, with the exception of a dividend of $3.00 per share on the 8,962 shares of said Leigh and dividends in favor of Kern on his 1,325 shares.

The cross-bill then charges: That on February 20, 1905, all of the shares of stock owned by Leigh were pledged by Leigh to the cross-complainant Woods for the purpose of securing Woods against any loss on account of the sale by Leigh to Woods of certain accounts and stock for the sum of $12,000, said Leigh guaranteeing Woods that Woods would secure from said accounts and stock $12,000 with interest, and that Woods has not yet been able to realize any money whatsoever from said accounts or shares of stock, and now holds all of said shares of stock in said Beam Company as pledgee; that outside of the 26,223 shares before mentioned, there remains outstanding 19,290 shares, of which Laughlin claims to be the owner of 9,003 shares; that 1,325 shares are claimed by one Kern and one Brown, and that 8,962 of said shares are suit against Laughlin and its directors; that Laughlin has had elected a board of directors of the Beam Company subservient to his wishes, and that it would be unavailing for Woods to request the company as a corporation for redress, or to demand that it bring suit against Laughlin and its directors; that Laughlin is now causing the Beam Company to declare that it intends to engage in the business of the manufacture and sale of brake beams, and that no distribution of its assets will be made to Woods, and that the dividends of $3.00 per share on the 8,962 shares which was credited upon the indebtedness of Leigh to the Beam Company is all that Woods is entitled to upon said shares of stock; and further claims that he is now the owner of four-fifths of what remains of the property of the Beam Company, “whereas in equity and justice the shares of stock owned by Woods are entitled to an equal distribution in all of the said moneys, bonds and assets so wrongfully appropriated by said Laughlin;” that Laughlin induced Leigh to vote, at a stockholders’ meeting of the Beam Company, all his shares of stock and the shares for which he held proxies, in favor of Laughlin’s proposition to the Beam Company, upon the promise of Laughlin that should Leigh not present his shares of stock for purchase by said Laughlin in October, 1898, Leigh and Laughlin would subsequently divide the assets of the Beam Company after Laughlin had acquired the other outstanding stock out of the moneys and bonds paid by the Equipment Company; that Leigh acted under the. belief that this promise would be carried out, and “labored under this belief until June 19,1900, when Laughlin repudiated his understanding with Leigh and denied the right of Leigh to any part of the proceeds realized by said Laughlin from the Equipment Company, or to more than one-fifth of the balance of the assets of the Beam Co.;” that' Laughlin has not paid to the Beam Company any portion of the rents owing'by the Equipment Company over $5,000 a year, nor delivered anything to the Brake Beam .Company in payment of his obligation to it, but used his influence as legal adviser of Leigh and the Beam Company for the purpose of defrauding the Beam Company and Leigh, and now pretends that the whole of the $407,500 procured from the Equipment Company is his private property.

The prayers of this cross-bill are (a) that the Beam Co., the Equipment Co. and Laughlin may answer it; (b) that an account may be taken of the amount due Woods under the agreement of 1892; (c) that Laughlin may be decreed to turn over to the Beam Co. all moneys, stock and bonds received from the Equipment Co. to pay its indebtedness to the Beam Co.j or (c) if the court holds said money, stock and bonds to be Laughlin's property under his contract, to pay the rent to the Beam Co. in excess of $5,000 per annum, then that Laughlin be decreed to pay with interest the 18 semi-annual installments becoming due after January 1, 1899, from the Equipment Co. to the Beam Co. over" $5,000 annually; (d) that Laughlin may be decreed to pay to the Beam Co. all other moneys misappropriated by him from the treasury of the Beam Company as dividends or otherwise; (e) that a receiver of the Beam Company may be appointed to distribute its assets among its stockholders and creditors; (f) that in the meantime the Beam Company may be enjoined pendente lite from engaging in any business or distributing its assets; (g) that the Beam Company may be dissolved and its affairs wound up; (h) that the cross-complainant may have other and further relief, etc.

The Beam Company and Laughlin answered this cross-bill at great length, denying all the material allegations that appeared to justify the claim for relief set out, and particularly insisting that the material contentions had been in previous litigations adjudicated. The transcript of record per praecipe showá no answer by the Equipment Company.

Cross-bill No. 3 was filed by the Chicago Title & Trust Company as trustee of Leigh as an involuntary bankrupt, and makes the Beam Company, Laughlin, the Equipment Company and Woods defendants, and repeats all the allegations and prayers of Woods’ cross-bill (cross-bill No. 2) except that for the allegation of a pledge to Woods of 8,962 shares of Beam Company stock owned by Leigh it substitutes:

“Tour orator further states that by reason of the adjudication of bankruptcy and its election as trustee, it came into the possession of 1,575 shares of the stock of the National Hollow Brake Beam Company; that on the 20th day of February, 1905, and prior to the commencement of said bankruptcy proceedings, the said E. B. Leigh for a pretended consideration gave into the possession of one Louis L. Woods 6,387 shares of the Beam Company stock.” (This would seem to be a clerical error in the bill for 7,387.) “That at the time of said transfer the said Leigh also transferred to the said Woods a large amount of other assets, and your orator charges it to be that the said transfer to said Woods of said shares of stock was in fraud of the creditors of Leigh, and that Woods has no legal claim to the said stock, and that your orator is entitled to the possession thereof.”

And to the prayers of the Woods bill is added one that “the rights of the Chicago Title & Trust Company and Louis L. Woods in and to the stock of the Beam Company may be determined.”

To this cross-bill No. 3 Woods filed an answer admitting all its allegations except that relating to the title of Woods to shares of stock in the Beam Company. As to that it repeats the allegations of cross-, bill No. 2, that all of the shares of stock owned by Leigh were validly pledged to Woods.

The Beam Company and Laughlin also filed answers to this cross-bill No. 3, substantially the same as those filed to cross-bill No. 2, except that they deny that the Trust Company came into possession of 1,575 shares of the Beam Company stock, but admit that it came into possession as trustee in bankruptcy of Leigh of certificates for a number of shares; deny also that before the bankruptcy Leigh gave into the possession of Woods 6,387 shares of Equipment Company stock, but alleges that Leigh did prior to said bankruptcy give into the possession of Woods certain certificates of Beam Company stock, the exact number of which is unknown to the Beam Company, but that said transfer was fraudulent and that Woods has no legal claim to the stock; that Laughlin claims that Leigh was allowed to retain said stock in connection with bonds belonging to Laughlin, and that until Leigh accounts for the bonds neither he nor the Trust Company can be heard to assert any claim upon the ownership of the stock; that the Beam Company believes that the Trust Company is entitled to the stock divested of the claims of Wood and Laughlin, or that Laughlin is entitled to the stock divested of the claims of the Trust Company and Woods; that the Beam Company is willing to recognize as the owner of said stock whoever may be adjudged entitled thereto by a decree of court, and until their full rights are adjudicated the Beam Company cannot tell which of said parties is entitled to said stock.

Cross-bill No. 4 was a bill filed by Laughlin against Woods and the Trust Company, and cross-bill No. 5 was a bill filed by Laughlin against the Equipment Company. By the decree from which the appeals at bar by Woods and the Trust Company were taken demurrers were sustained to these cross-bills 4 and 5, on the ground that they were not germane to the subject matter of the original bill in the cause or of cross-bills 2 and 3. No appeal was taken from this part of the decree, and it is not involved herein.

■■ The decree on these cross-bills 2, 3, 4 and 5 was entered as stated on June 30, 1909.

As to the cross-bills 2 and 3 it finds that the court has jurisdiction of all the parties and the subject matter of the same, and

(a) That (as between Woods and the Trust Company and as between them only) as to 8,962 shares of stock of the Beam Company, the ownership and the respective rights of the parties are that:

‘ Said Chicago Title & Trust Company as such trustee is the owner of said shares of stock subject to a lien thereon, in favor of said Louis L. Woods, to secure the guaranty of said Leigh that said Woods will realize the sum of $12,000 out of 24,300 shares of the preferred stock and 24,400 shares of the common stock of Dwight Furness Company, and out of the claim of said Leigh against said Dwight Furness Company and against Dwight Furness, an individual, on open account or account stated, of whatsoever name or nature existing on February 20, 1905. ’ ’

(b) That an issue of 700 shares of capital stock of the Beam Co. to Laughlin and now held by him, and of 700 shares to one Allison held by him, under a resolution of the directors of the Beam Company on June 6,1902, in payment of the respective salaries of Laughlin and Allison, was illegal and improper and should be returned by them to the corporation, and in lieu thereof they should be credited with the amount of money for which said stock was delivered to them, with interest.

(e) That the distribution of assets of the Beam Company, authorized by its directors January 3, 1905, known as dividend No. 36, was illegal and improper, and all moneys and credits granted under and by virtue of said distribution should be restored to the corporation by Laughlin, their recipient, and the resolution authorizing such distribution or dividend, and all proceedings thereunder, were illegal and void and should by corporate action be shown on the corporate record, as rescinded and avoided.

(d) That the complainants in the cross-bills are entitled to recover from the Beam Company a reasonable solicitor’s fee fixed at $250 on account of having recovered against said Beam Company the findings against it above mentioned and the decree for relief thereon.

(e) That (except as before specifically found) said cross-bills 2 and 3 are without equity.

The decree then carries these findings into effect by specific orders conforming to findings a, b, c, d and e, and denying, except as thus ordered and decreed, all the prayers of said cross-bills. From this decree Woods, the Trust Company, the Beam Company and Laughlin each prayed and was allowed an appeal; but the Beam Company and Laughlin, it is to be presumed, have abandoned their appeals, for although criticizing the finding (c) and the order thereon, they assert in their argument here that they have acquiesced in that finding, and within thirty days from the decree did, as ordered, correct the corporate hooks in accordance therewith by proper alterations in the amounts of indebtedness shown from the Beam Company to Laughlin.

As to finding (b) they say (though this is denied by the appellant) that the decree was predicated upon consent and not on anything in the pleadings, and that Laughlin and Allison have exchanged the 1,400 shares for the equivalent in cash.

In the appeals before us Woods has assigned for error in the decree that the court erred:

1. In not appointing a receiver for the Beam Company.

2. In refusing to decree the payment of dividend No. 36 to Woods.

3. In refusing to wind up the affairs of the Beam Company and distribute its assets among its creditors and shareholders.

4. In refusing to direct an accounting between Laughlin and the Beam Company.

5. In refusing to enter a decree against Laughlin requiring him to pay all instalments of the rent of the Equipment Company to the Beam Company in excess of $5,000 per year after January 1, 1899.

6. In refusing to decree that Laughlin was not entitled, as against Woods, to dividends from the Beam Company upon 24,798 shares.

7. In refusing to enter a decree against Laughlin requiring him to account to the Beam Company for moneys, stock and bonds received by him from the Equipment Company for the purpose of paying its obligations to the Beam Company.

8. In refusing to order Laughlin to pay to the Beam Company, with interest, $5,000 which had been taken from its treasury to pay the debt of Laughlin.

9. In decreeing too small an amount for solicitor’s fees and expenses in procuring the decree in this cause.

The Chicago Title and Trust Company has assigned the same nine alleged errors, merely substituting its name for that of Woods in the 2nd and 5th assignments, but has added as assignments:

“10. The Circuit Court erred in finding that Louis L. Woods has a lien to the extent of Twelve Thousand Dollars as against 8,962 shares of the capital stock of National Hollow Brake Beam Company, owned by Chicago Title & Trust Company, trustee, appellant.

“11. The Circuit Court erred in decreeing that Louis L. Woods had any lien or interest in the 8,962 shares of National Hollow Brake Beam Company stock held by Chicago Title & Trust Co., trustee of Edward B. Leigh, bankrupt.”

We have stated the contents of the cross-bill involved herein at some length, because the variety and complexity of the contentions seem to render it necessary in order to make our opinion intelligible. But much discussion of the causes in their decision would not, in our view, be useful.

As to assignments of error 1 and 3, our opinion in 16001 is sufficiently explicit. The contention of the appellants in the present appeals as to these assignments is that of the appellant in 16001, namely, that the contract of 1892 between the Equipment Company and the Beam Company required the Beam Company’s affairs to be wound up. We have said in our opinion in 16001 we do not agree with this contention.

In relation to the assignment of error 2, we think the chancellor’s method of dealing with the dividend in question was preferable to that urged by the appellant, if, as is claimed and was held by the chancellor, the restrictions on its payment made at the time of its declaration were illegal and improper.

In deciding on the assignments of error from 4 to 8, inclusive, the first matter to be considered, in view of former adjudications which are relied on by the appellees to sustain the decree is the relation between the appellants Woods and the Trust Company to Leigh. Woods claims (and was held) to have become the pledgee from Leigh of 8962 shares of Leigh’s stock in the Beam Company on February 20, 1905, long after all the transactions made the basis by cross-complainants of their claim of mismanagement and fraud in the affairs of the Beam Company were concluded. We think that Woods stepped into Leigh’s shoes as stockholder in the Beam Company, with no greater rights as snch stockholder than Leigh at that time possessed.

Whatever disability or exclusion from relief and whatever adjudication then existing or afterward entered declaring a status or disability of a time preceding February, 1905, affected the stock of Leigh or the personal rights of Leigh as a stockholder at the time of the pledge, also attached to and affected Woods and his rights as a stockholder when he became pledgee.

The Trust Company is the trustee in bankruptcy of Leigh, and the bankruptcy was adjudicated in November, 1906. Of course it could and did take nothing but the rights and remedies of Leigh in relation to this stock of the Beam Company.

It would seem to be intimated by the Reply Brief of appellant Woods in 15949 that adjudication against Leigh in a controversy with Laughlin over the beneficial ownership of the 26,223 shares of stock in the Beam Company purchased, as the appellants herein claimed, by Laughlin with trust funds, is not, in the opinion of appellants, conclusive in this litigation on the rights of Woods or the Trust Company as stockholder of the Beam Company in relation to an interest in these shares or in the assets of the company represented by them. With this contention we cannot agree. Woods and the Trust Company in this litigation are to our minds in precisely the same position and with the same rights as Leigh would have if the cross-bills were his—no more and no less—and if there has been by any court of competent jurisdiction an adjudication which would be binding on Leigh on his rights and claimed remedies, it is binding also on Woods and the Trust Company. And, moreover, if even under circumstances which do not make it an adjudication against Leigh in the strict sense, there has been clearly and definitely expressed by the Supreme Court of this state, when the same facts and evidence were before them in any case, the opinion that Leigh had no, rights in the stock in question, but that it was the individual property of Laughlin, and that the actions or acquiescence of the Beam Company procured by Laughlin through his ownership of said stock were legal and binding on its stockholders, and settled its rights in this involved litigation, that opinion was binding on the Circuit Court and is binding on us to the extent that it would be presumptuous and improper for us to refuse to follow it. Therefore it becomes us to consider what have been such adjudications and opinions, if any.

In January, 1901, Laughlin filed a bill in chancery in the Circuit Court against Leigh, claiming the own-, ership of the 26,233 shares of stock, 13,111 of which he contended Leigh had fraudulently had transferred into his own name.

The Circuit Court decided this case against Laughlin and dismissed the bill. On appeal to the Appellate Court, however, the Branch Appellate Court reversed this judgment and in an elaborate opinion reviewing the evidence reached the conclusion that the proofs did not sustain Leigh’s claim to ownership, and remanded the cause to the Circuit Court with directions to grant Laughlin the specific relief prayed in his bill. Laughlin v. Leigh, 112 Ill. App. 119. Leigh appealed in his turn to the Supreme Court from the Appellate Court. The Supreme Court declared that it agreed with the conclusions of the Appellate Court and affirmed its judgment. Leigh v. Laughlin, 211 Ill. 192.

In June, 1902, the Beam Company filed in the Circnit Court a bill against Leigh and certain other persons to enjoin them as acting as directors of said company under an alleged election which depended for its validity on the pretended ownership by Leigh of one-half of the 26,223 shares of stock in question. This alleged election was held in May, 1902, after the Circuit Court had decided in Leigh’s favor the question of such ownership as hereinbefore stated, and before the Appellate Court had reversed that decision.

A preliminary or interlocutory injunction was granted by the' Circuit Court in this case, which was sustained by this court as a proper method of preserving the status quo. Leigh v. Beam Co., No. 10,656 in this court. Leigh v. Beam Co., 104 Ill. App. 438.

The cause did not reach a final decree in the Circuit Court until after the final decision in Leigh v. Laughlin, before referred to—211 Ill. 192.

The Circuit Court entered a decree in accordance with the prayer of the bill and perpetually enjoined Leigh and those other directors, who owed their alleged election to the voting by Leigh of that portion of the stock in controversy, which he claimed. Leigh appealed directly from this decree to the Supreme Court, and the appeal was there entertained because, as we read the opinion rendered by the Supreme Court, “the cross-bills” (filed in the cause) “askedthe forfeiture of the franchise of the appellee company for nonuser.”

Quotations from the opinion of the Supreme Court —Leigh v. Beam Co., 224 Ill. 76—will show how definitely that court expressed its opinion as to the ownership of the 26,233 shares in question:

“The greater part of the important facts connected with this case are set out at length in Laughlin v. Leigh, 112 Ill. App. 119, and on appeal of the same case to this court in Leigh v. Laughlin, 211 Ill. 192, and need not be here repeated. The main issues in this case arise out of the question as to who were the legally elected secretary and treasurer and who were the legally elected directors of the National Hoilow Brake Beam Company at the date this bill was filed. This question hinges in its turn upon the ownership of the 26,233 shares of stock which was the chief subject of contention in Leigh vi Laughlin, supra. * * * The crucial point, as has been said, is the ownership of the 26,233 shares of the National Hollow Brake Beam Company. Appellants, in their original answer asserted that one-half or 13,111 shares of said stock belonged to Leigh. It is evident that that was the contention of Leigh from the very beginning of the controversy between him and Laughlin until after the rehearing in Leigh v. Laughlin, supra, was denied by this court October 17, 1904, when he for the first time shifted his claim in that regard.”

(Note. This refers not only to an amended and supplemental cross-bill filed by Leigh in the Circuit Court on November 16, 1904, and hereinafter commented on, but to an amendment of his answer containing the same allegations concerning the beneficial ownership of the stock in question by the Beam Company as was made in the amended and supplemental cross-bill.)

“As we understand arguments of counsel and the statements in the cross-bill, appellants now contend that Laughlin, instead of being the owner of said 26,233 shares of stock, having us°ed the assets of the National Hollow Brake Beam Company for purchasing them, holds them in trust for that corporation. * * * With numerous citations of authorities * * * counsel for the appellants have attempted to show that this court in Leigh v. Laughlin, supra, did not decide that Laughlin was the actual owner of these shares of stock. The decision in that case, they say, did not attempt to ‘breathe the breath of life into these certificates of stock.’ They claim that that decision merely held that Leigh failed to establish a contract that he was entitled to possession of one-half of said shares ; that the court did not attempt to decide whether those ■shares were ‘living or dead;’ that it only determined that Leigh was not entitled ‘to the physical possession of one-half of said stock. ’ In the face of the reasoning in that decision, taken in connection with the decision in the same case by the Appellate Court, supra, the conclusions in which latter case are upheld by this court in Leigh v. Laughlin, supra, it is difficult to understand how appellants can seriously contend that the decision does not settle the ownership of this stock. * * * If the contention in appellants’ argument and cross-bills be upheld and the said 26,233 shares of stock belong to the corporation, Leigh and Laughlin will be the owners of substantially all of said stock, and if that contention be upheld, Leigh would indirectly accomplish what he attempted to accomplish directly in the former suit of Leigh v. Laughlin, sufra, and he is forced to admit that this court has decided that he, Leigh, is not entitled to one-half the stock. If the ownership of this stock was decided to belong to Laughlin in Leigh v. Laughlin, supra, then the chief question in this case is res judicata. Appellants assert that it cannot be so held because the parties to this suit are not the same as the parties to Leigh v. Laughlin, and that the issues are not the same. If Laughlin and Leigh were the owners of substantially all the stock of the National Hollow Brake Beam Company, then the controlling fact in this suit, as in the former suit, affects in reality only these two, and it is well settled that where some controlling fact or question material to the determination of both causes has been adjudicated in a former suit before a court of competent jurisdiction, and the same question is again at issue between the parties, its adjudication in the first case, if properly presented, will be conclusive of the question whether or not the cause of action be the same in both suits. * * * The ownership of the 26,233 shares of stock was also the controlling fact in Leigh v. Laughlin, supra. Laughlin had to uphold his contention in the former suit by the strength of his own title—not only as against Leigh but against everyone else. Leigh is estopped in the present hearing from attempting to show that these shares belonged to the National Hollow Brake Beam Company instead of Laughlin. He should have urged that in the former suit between him and Laughlin, admitting it to be the fact. * * * This court held in Leigh v. Laughlin, supra, not only that Laughlin was not entitled to the physical possession of one-half of this stock, but that the actual ownership was in Laughlin. The present case was started some two years before the decision in the former suit. Appellant Leigh is estopped from shifting his ground as to the ownership of the disputed shares of stock after that decision was handed down. The ownership of these shares of stock was finally set-tied in the former case of Leigh v. Laughlin, supra, and this court cannot permit the question to be reviewed in this case. Laughlin being the owner of this stock, he was entitled to vote it in the transaction of all business of the corporation. * * *

‘ ‘Appellant Leigh is in no position to ask for a forfeiture of the charter of the National Hollow Brake Beam Company on account of the abandonment of its corporate existence. He has been an official of that company and a party to all of its alleged illegal acts from the very outset. No one had a fuller knowledge or was more active as an officer or stockholder for the carrying on of said alleged illegal acts than he himself.

“On this account he has set up nothing in his cross-bill on this point that entitles him to relief. * * * For substantially the same reason the other appellants cannot complain in this regard. ’ ’

(Note. This refers to the second amended cross-bill filed by Laughlin, which the Supreme Court says “set forth among other matters that the Company was not a going concern and its assets should be divided among the lawful stockholders, excluding the 26233 shares in dispute; that the said Leigh and Laughlin were substantially the sole owners of the stock and assets of said National Hollow Brake Beam Company,” and to a cross-bill filed by Ahrens and Geer, two of the alleged directors elected at the election held invalid, which the Supreme Court says set up "substantially the same facts as are set up in the second amended cross-bill of Leigh.” Demurrers had been sustained to both by the Chancellor in the Circuit Court, and the cross-bills had been dismissed for want of equity.)

“The question of accounting between Leigh and Laughlin as to many of their transactions covering years, as raised in the cross-bill, was not germane to the questions presented in the original bill. The decree should have dismissed Leigh’s amended and supplemental cross-bill for that reason and not for want of equity. * * *

“The decree will be modified in this respect so as to read, ‘the amended and supplemental cross-bill of Edward B. Leigh be and the same is dismissed for want of jurisdiction." The decree as thus modified is affirmed.”

We have italicized the portions of the quotation relating to the amended and supplemental cross-hill of Leigh because on them is founded the argument by the appellant Woods herein that the question of the ownership of the stock and the money and bonds with which it was bought has not been adjudicated as between the Beam Company and Laughlin.

“The only time,” counsel say, “the rights of the Beam Company were attempted to be enforced against Laughlin was in the cross-bill filed in the name of Leigh in a suit brought by Laughlin and the Beam Company for a receiver of the Beam Company’s assets. This cross-bill was dismissed by the Circuit Court for want of equity, but on appeal the decree was reversed by the Supreme Court and the cross-bill was ruled to be not germane to the original bill and was dismissed for want of jurisdiction.”

This statement leaves out important factors in the situation. First, the amended answer of Leigh to the original bill, on which amended answer, with the other pleadings, the cause was heard and decided, sets up the same matter, as far as the alleged ownership of the stock and bonds by the Beam Company and the trusteeship of Laughlin go, as was set up in his cross-bill so dismissed. Secondly, the cross-bill of Ahrens and Geer, the dismissal of which for want of equity was sustained, set up the same matter also. Thirdly, the Supreme Court says that it was the allegations which raised “the question of accounting between Leigh and Laughlin as to many of their transactions covering years,” that were not germane to the questions presented in the original bill.

The cross-bill of Leigh evidently originally contained such allegations, to which the last amendments merely added those with which we are concerned here, and it was apparently the original and not the amendatory allegations that led to the modifications of the order of dismissal.'

To apply to the case in 224 Ill. the language which the Supreme Court in that case applied to the one in 211 Ill., “It is difficult to understand how appellants can seriously contend that that decision does not settle the ownership of this stock. ’ ’

And in any event and in any view, as we hold that Woods and the Trust Company in the present case have only the rights which Leigh would have, the fact that Leigh actively participated, with full knowledge, in all the actions of the Beam Company, which on their face foreclose that company from seeking to pudo what it has formally assented to, both as to the ownership of the stock in question and as to the reduction of rent, would also foreclose Woods and the Trust Company from enforcing such claims as it is making as “minority stockholders suing in behalf of the corporation for redress for injuries done the corporation by the majority stockholders” as the reply brief of Woods puts it.

These considerations dispose, as we hold, of all the assignments of error from 4 to 8, inclusive. We do not think after full consideration that assignment 8 differs from the others in this respect.

The -additional assignments made by the Trust Company, Nos. 10 and 11, raise a different question—a question between Woods and the Trust Company. We have considered it with much care, for it is undeniable that the testimony of Leigh on which the decree giving Woods a lien on the 8,962 shares involved is based, was on cross-examination vague, indefinite and unprecise, and that many matters appear tending to throw suspicion on the good faith of the alleged pledge. It would be- useless in our opinion to add to the length of this opinion by discussing it. We have concluded that the chancellor was on the whole right in holding that the direct evidence of Leigh (Rec. 248) was not overcome, and that the lien must he upheld.

Assignment 9 in both appeals is that the chancellor decreed too small an amount for solicitor’s fees and expenses in procuring the decree on the cross-bills of Woods and the Trust Company when granting the allowance prayed for by the petition filed by Woods and the Trust Company on the day the decree was entered. The chancellor allowed $250 ($125 each). We do not feel justified in altering this order. Such allowances must under all ordinary circumstances rest largely in the discretion of the trial judge.

The decree as a whole is affirmed, and the same order will be entered in both appeals, Nos. 15949 and 15982.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Chicago Railway Equipment Company, Appellee v. National Hollow Brake Beam Company and Henry D. Laughlin, Appellants.
    Gen. No. 16,001.
    1. Courts—stare decisis. Where in ' previous litigation arising out of the same transaction the fundamental questions in a case have been determined by the Supreme Court, such determination is binding on the Circuit and Appellate Courts. z
    2. Injunctions—when preliminary continued pending appeal. Where an injunction against forfeiture of a lease is granted on condition that complainant, lessee, makes certain payments within a time fixed, and complainant appeals, an attempt by defendant to enforce a forfeiture after the time fixed for payment, and pending the appeal, is ineffective, when the right to an injunction is finally determined in favor of complainant, even though there is no formal order continuing the preliminary injunction granted in the cause, in force, pending the appeal.
    3. Injunctions—against competition. Where the lease of a manufacturing plant and business provides that in case no forfeiture has taken place the lessor will not engage in competition for a period of five years after its termination, an injunction enforcing such provision is properly limited to the period fixed, and a prayer for an injunction against competition “at any time” is properly denied.
    4. Good will—lease construed as sale. Where a lease of a manufacturing plant and business is in effect a conditional sale of the property, patents, and good will of the business, to become absolute in case of the expiration of the term of the lease, without its forfeiture, the lessee upon complying with the terms of the agreement is entitled to an injunction restraining the lessor from the use of the trade name or otherwise interfering with the good will of the business transferred.
    5. Injunctions—necessity that complainant do equity. Where upon the theory that an injunction against forfeiture of a lease has not been continued pending an appeal, defendant lessor declares a forfeiture, and thereafter refuses to accept payments tendered under the lease, the lessee, on his right to a continuance of the lease having been finally determined, will be required to make such payments to the lessor as a condition to the enforcement of rights based on the lease.
    6. Deposits in court—disposition. Where on a bill by lessee to enforce the lease, complainant tenders certain payments under the lease into court, and they are refused by defendant on the ground that the lease has been forfeited, the sums tendered are properly ordered to be paid to the clerk and, on a finding for complainant, to defendant, without prejudice to the right of defendant to appeal.
    7. Appeals and errors—release of errors. When sums tendered into court by complainant, and refused by defendant, are ordered by the court to be paid by the clerk to defendant without prejudice to the right of defendant to appeal, the acceptance of such sums by defendant will not prevent the consideration of his appeal.
    8. Contracts—modification. Where the amount of rental to be paid by a lessee corporation is based in part on the amount of its indebtedness to the lessor corporation, an agreement, for a reduction of the rental fixed in the lease is, while unrescinded, a bar to the collection of a greater amount, though at the time the reduction was negotiated, the intermediary erroneously stated that the indebtedness was fully paid, while the payment, in fact, was partially made up of worthless notes.
    9. Res ad judicata—matters included. Where on a bill by a lessee to enjoin the forfeiture of a lease, complainant offered to pay all sums which might be owing by it to the lessor, the decree is a bar to the assertion by the lessor in other litigation of claims which he might have raised and had determined.
    10. Landlord and tenant—provision in lease for costs and attorneys’ fees. A provision requiring the lessee to pay all costs and attorneys’ fees and expenses incurred by the lessor in enforcing the covenants and agreements of the lease, does not impose liability on the lessee for expenses incurred by the lessor in defending a suit by the lessee, which was determined in the main in the lessee’s favor.
    11. Landlord and tenant—insurance policies. A lessee on refusal to assign insurance policies on the demised premises, on demand, as required by the terms of the lease, is not liable for the premiums paid by the lessor on insurance then taken out by it, where there is no failure to keep the premises insured, as required by the lease, and the demand was not made under the lease, but under a claim of forfeiture thereof, which was afterward determined adversely to the lessor.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 7, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Defress, Buckingham, Ritter & Campbell, for appellants; Randolph Laughlin, of counsel.
    W. S. Oppenheim, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Since legal warfare began in 1900 between the former friends and business associates, Edward B. Leigh and Henry D. Laughlin, the attention of this court and of the Supreme Court of the State has been frequently directed thereto. Some of the cases involving the differences between these parties and the interests centering in each, reported in the Appellate and Supreme Court Reports, are the following: Leigh v. Nat’l Hollow Brake Beam Co., 104 Ill. 438; Laughlin v. Leigh, 107 Ill. App. 476; Laughlin v. Leigh, 112 Ill. App. 119; Nat’l Hollow Brake Beam Co. v. Leigh, 119 Ill. App. 344; Laughlin v. Geer, 121 Ill. App. 534; Leigh v. Laughlin, 123 Ill. App. 564; Chicago Railway Equipment Co. v. N. H. Brake Beam Co., 123 Ill. App. 533; Leigh v. Laughlin, 130 Ill. App. 530; Leigh v. Nat’l Hollow B. Beam Co., 131 Ill. App. 106; C. R. Equipment Co. v. N. H. B. Beam Co., 141 Ill. App. 572; Leigh v. American Brake Beam Co., 205 Ill. 147; Leigh v. Laughlin, 211 Ill. 192; Leigh v. Laughlin, 222 Ill. 265; Leigh v. Nat’l Hollow B. Beam Co., 223 Ill. 407; Leigh v. Nat’l Hollow Brake Beam Co., 224 Ill. 76; National Hollow B. Beam Co. v. Chicago Ry. Equipment Co., 226 Ill. 28.

The following cases in addition to the one at bar have been recently taken into consideration by this court and will be disposed of contemporaneously with it:

No. 15,948, Chicago Railway Equipment Co., appellant, v. N. H. B. Beam Co., appellee.

No. 15,949, Chicago Railway Equipment Co. v. Nat’l Hollow Brake Beam Co., appeal of Woods.

No. 15,982, Chicago Railway Equipment Co. v. Nat’l Hollow Brake Beam Co., appeal of C. T. & T. Co.

No. 16,002, Chicago Railway Equipment Co., appellee, v. Nat’l Hollow Brake Beam Co., appellant.

There are others pending, however.

In the various opinions, which make a considerable item in the legal literature of the State for the last few years, the underlying facts of the controversy between the parties have been so often set forth that it cannot be necessary to repeat them in any detail here. Beference by those interested can be made to the opinions heretofore mentioned.

The principal or fundamental dispute to be decided in this particular case seems to us to be rather on the meaning of former decrees, decisions and opinions than whether the decree of the Circuit Court would have been correct had the matter been one of first impression not before adjudicated.

For if, as we think, the action and language of the Supreme Court in National Brake Beam Co. v. The Chicago Railway Equipment Co., 226 Ill. 28, and in The Chicago Railway Equipment Company v. The National Hollow Brake Beam Company, 239 Ill. 111, have either expressly or impliedly determined the fundamental questions in this case, the Circuit Court had and this court has no other duty than so to declare, whatever might have been their decision as a matter of first impression. We find ourselves, however, in our view of the law and the facts, in entire accord with what we understand the Supreme Court has decided.

March 21, 1902, the Equipment Co. filed in the Superior Court of Cook County a bill in chancery against the Beam Co. and Laughlin for an injunction restraining them from entering upon the premises occupied by the Equipment Company and removing it or any of its property therefrom, and restraining Laughlin as President of the Beam Company from acting under the power conditionally conferred on him by a previous instrument of demise (called a lease) between the companies, of the date of December 8, 1892, from seizing the books and papers of the Equipment Co., from undertaking to secure and deliver to the Beam Company an assignment and transfer of patents, choses in action, or any other property belonging to the Equipment Company, and from proceeding to declare a forfeiture of said lease of December 8, 1892. The lease or instrument of demise referred to, of the date of December 8, 1892, was an agreement made between and signed by both companies. Under it the Equipment Company on January 1, 1893, took possession of all the property, business and good will of the Beam Co. The Equipment Company was to pay the Beam Company under the agreement $65,000 a year for 15 years in semi-annual instalments. At the expiration of the lease the lessee was to return the real estate and machinery leased, and if it had not already done so, the amount of cash received from the lessor or the balance thereof still unpaid, and of the outstanding accounts turned over to it by the Beam Company, and the amount of the cash price as per inventory of the stock and materials on hand so turned over to it.

The Equipment Company had the right from time to time to pay back to the lessor before the expiration of the lease the whole or any portion of the money received by it, in payments of not less than $5,000, and if such payments were made, the semi-annual instalments to be paid as “rental” were to be reduced in an amount equal to six per centum on the amounts so paid back.

A forfeiture of the “lease” in certain contingencies was provided for as follows:

“If the lessee shall fail to pay any instalment of rent for three months after the same becomes due and payable and shall continue in default for three months thereafter (the lessees being given a period of at least six months grace) the lessor shall have the right to declare this lease forfeited, * * *” and “failure of the lessee to comply with any one or more of the other provisions of this lease shall give the same right of forfeiture. * * * in the event lessee shall at any time suffer a forfeiture, lessor shall have the right immediately after such forfeiture * * * to reenter” the premises “and take possession of the same, together with all the machinery,” etc., and “lessor shall thereupon immediately succeed to all the right, title and interest of the lessee therein and thereto. * * * It is the meaning and intent of this provision to make a forfeiture of this lease * * * immediately operate as an assignment and transfer of all its property, real and personal, to the lessor.”

In 1898 Laughlin made a proposition to the Equipment Company concerning a reduction of the future semi-annual payments to be made by the Equipment Co. to the Beam Co., in consideration of the immediate payment to him of certain cash and bonds. This proposition was accepted and the immediate payments made by the Equipment Company. The semi-annual ‘ ‘ rent’ ’ instalments to accrue after 1898 were thereupon reduced to $2,500 each. Laughlin had meanwhile come to an agreement with the Beam Co. concerning the reduction of the payments of the Equipment Co. in consideration of an undertaking of his own with its stockholders. The written communication from Laughlin to the Equipment Co. containing the aforesaid proposition recited, that the Equipment Company had made good to the Beam Company all the moneys acquired through the “lease,” but stood still charged with machinery and office furniture. Later a dispute arose, however, concerning the payment of $20,000 of this money. It had been ostensibly paid by Leigh for the Equipment Co. in negotiable paper, which Laughlin for the Beam Co. contended (and which the Supreme Court afterward held) was worthless and constituted no payment. This became a material matter in previous litigation and is so in the present one. Before the question of this ostensible payment of $20,000 on the “money account” was raised, however, another dispute of the same general nature had taken form. There had been payment of $13,500 made on account of the semi-annual rent instalments (before the new arrangement, which began Jan. 1, 1899) in three items of negotiable paper, also afterwards alleged (andheld by the Supreme Court) to be worthless. Laughlin and the Beam Company were therefore in 1902 threatening to declare and enforce a forfeiture of the “lease” under the provisions of it hereinbefore recited. This was the occasion of the bill in chancery of March 21, 1902, we have mentioned. The bill, after alleging the dispute about the $13,500 offered to pay that sum and interest, or any other sum the court might find to be due, if upon a hearing the court should hold that it was thus indebted. A preliminary injunction was issued in accordance with the prayer of the bill, and, as in the fall of 1902, leave of court was obtained by the Beam Company to serve further notices on the Equipment Company for alleged non-payment of rent, the injunction was, on the prayer of a supplemental bill, extended to prevent the Beam Company from 'declaring a forfeiture pursuant to said notices. These additional notices were predicated partly on the non-payment of a sum, $1,200, on December 31, 1898, a rebate of which the Equipment Company claimed under the terms of the original agreement on account of the ostensible payment of the $20,000 heretofore alluded to, which the Beam Company contended was no payment because made in worthless paper. .

After a reference to a Master, a Master’s report and further hearing, a final decree was entered in the Superior Court July 29, 1904, on this bill of March 21, 1902, and the supplemental pleadings in the case. That decree found that the ostensible $13,500 and $20,000 payments which were repudiated by the Beam Company were not in fact payments, and proceeds:

It is ordered and adjudged “* * * that the Brake Beam Company has never accepted any pretended payments in lieu of cash, and that the lease .is subject to forfeiture for the non-payment of the rent aforesaid unless complainant voluntarily and within ten days from the entry of this decree shall pay into court for the Brake Beam Company the sum of $19,624.50, together with interest due at six per cent from the date of decree, with costs to be taxed, including attorney’s fees if allowed.

“Wherefore this court decrees that there is due from complainant to the Brake Beam Company the sum of $19,624.50, and that unless the complainant shall in ten days from date of decree pay in court for the benefit of the Brake Beam Company such sum with interest and costs of suit, the defendants are given leave to proceed with the forfeiture of the lease and to fully enforce such forfeiture in accordance with the terms of the lease and the injunction heretofore issued shall be and stand dissolved.

“And the defendants are hereby given leave to apply to the court for such additional writs, executions, orders or decrees as may be granted by the court for the enforcement of this decree, and leave is given to the complainant to pay within ten days said sum in court for account of the Brake Beam Company to cover said unpaid rent and costs in order to secure the benefit of this decree. And upon complainant’s so doing, the defendants are forever enjoined from further proceeding under either of the notices of forfeiture aforesaid.

“The court further orders that jurisdiction of this case shall he retained for the purpose of determining the rights of the defendants for attorneys’ fees under the lease as prayed for by defendant in their petition herein, and for the further purpose of making a proper decree as to the amounts paid into the Union Trust Company under the supplemental bills filed herein, as well as the right of the Brake Beam Company to interest on said several payments.”

The $19,624.50 was evidently made up of the $13,500 with interest at six per cent on the same from December 31, 1898, to the date of the decree, and $1,200 with interest from December 31, 1898. The $20,000 was not included, although not paid, because it was hot compulsorily payable until the expiration of the lease by time (fifteen years from December 8,1892) or by forfeiture. Had the Equipment Company accepted this decree, which upon the matter of the injunction prayed for—the only object of its bill—was in its favor, the exact controversy at bar might not have arisen, although doubtless the parties would have found ample scope for their belligerency in other departments of the quarrel. But the Equipment Company appealed from the decree to the Appellate Court, and a new occasion for further litigation arose at once. That litigation in effect has turned largely on how this decree of the Superior Court and its amendments after the cause had reached the Supreme Court should be construed, and what it effected.

The gist of the decision of the Superior Court, as it seems to us, despite the rather peculiar language of the decree, was that the bill was rightly and justifiably brought, that the complainant was entitled to the relief sought provided it washed its hands by incidental payments, which it mistakenly or wrongfully contended that it had already made, but which it offered to remake in any event if necessary to secure the relief prayed for.

It is to be noted that neither the Superior nor the Appellate Court made any formal order continuing the injunction in force pending the appeal other than the final decree, but the Branch Appellate Court on December 8, 1905, in reversing the decree of the Superior Court, awarded without terms, according to the prayers of the original and supplemental bills of complaint, a perpetual injunction against the Beam Company. 123 Ill. App. 533. This was on the ground, held by the Branch Appellate Court well taken by the Equipment Company, that under the circumstances the Beam Company must be held to have received the negotiable paper complained of in satisfaction pro tanto of its claims against the Equipment Company.

But meanwhile the Beam Company, presuming on the noncompliance by the Equipment Company during the pendency of the appeal with the portion of the decree which provided that the Equipment Company should, within ten days of its date, as a condition of the perpetual injunction, pay $19,624.50 and interest into court, and relying on the theory that such noncompliance, notwithstanding the pendency of the appeal, gave it leave under the terms of the decree “to proceed with the forfeiture of the lease and to fully enforce such forfeiture,” on November 9, 1904, proceeded to declare a forfeiture of the lease, which forfeiture it now in the present case insists was, is and should be valid and effectual to prevent the obtaining of the relief sought by the Equipment Company under the present bill, predicated, as it is, on the provisions and purport of the lease. Counsel for the Beam Company base this position on the two-fold theory that “the forfeiture of the lease was lawfully and rightfully declared while no injunction was in force, and thereby the forfeiture was consummated;” and that “there is a difference between nullification and non-enforcement;” and that an injunction against enforcing a forfeiture—for example “reentering and taldng possession of the premises”—is not an injunction against so declaring a forfeiture as to prevent the lessee from further taking advantage on its part of the provisions of the demise to and agreement with it.

We think the argument by which these positions are defended ingenious rather than sound, in view of the language and actions of the court of review and of the Superior Court itself in connection with the injunction in question.

After the decision of the Appellate Court awarding an injunction without terms, the Beam Company appealed from it to the Supreme Court. The Supreme Court differed from the Appellate Court as to the payments in the worthless negotiable paper being effectual, and decided that the Superior Court was correct in its conclusions thereon. “Hence,” it says, in an opinion filed February 21, 1907, 226 Ill. 28, “we conclude that the decree of the Chancellor was correct and should have been affirmed by the Appellate Court. The judgment of the Appellate Court is therefore reversed and the cause will be remanded to the Superior Court with directions to enter a decree finding there is due to the Brake Beam Company from the Equipment Company the sum of $19,624.50, together with interest on that amount at five per cent per annum from the date of the former decree rendered in that Court and decreeing the payment thereof within thirty days, and that in default the injunction be dissolved.” The actual remanding order following this .language of the opinion.

On May 8,1907, the Superior Court entered another decree in the case, reciting the proceedings in the Appellate, Supreme and Superior Courts subsequent to the previous decree, and proceeding:

“That the decree of this court entered July 29,1904, be and is modified in accordance with the directions of the Supreme Court as follows: That there is due from the complainant, the Equipment Company, to the Brake Beam Company the sum of $22,322.87, and that unless the complainant pay to the clerk of this court for the benefit of the Brake Beam Company said sum within thirty days from the entry of this decree, the injunction shall be dissolved, and except in the matter of the amount to be paid and the times and conditions of payment the decree entered on July 29, 1904, stand and remain of record in full force and effect at all times hereafter as the decree of this court.

“And it appearing to the court that the complainant has paid to the clerk said sum of $22,322.87, as provided in this decree, it is ordered, adjudged and decreed that the Brake Beam Company, its officers, agents and servants be and are perpetually enjoined and restrained as prayed in the complainant’s bill of complaint and supplemental bills of complaint, and that they do absolutely desist and refrain from proceeding to enforce a forfeiture of the agreement dated December-8, 1892, set out in said bill of complaint, and from re-entering the demised premises described therein, from removing complainant therefrom, and taking possession thereof, or of any of the personal property of the complainant, as prayed in the bill and supplemental bill of complaint: That Laughlin be and is perpetually enjoined as prayed in the bill of complaint from acting under the powers conferred upon him by paragraph 8 of said agreement dated December 8, 1892, and from undertaking to execute and deliver to the Brake Beam Company or to any other person or corporation as assignment or transfer of any of the patents, letters patent, patent rights, inventions for which applications for patents are pending, choses in action or any other property belonging to the Equipment Company.”

From this decree the Beam Company and Laughlin appealed to the Appellate Court. The Branch Appellate Court affirmed the decree. Speaking through Judge Freeman it delivered on the appeal an opinion filed June 16, 1908—141 Ill. App. 572. This opinion stated the view of the Branch Appellate Court fully on the effect of the preceding proceedings, and this court now desires to reaffirm the same. We quote from it, therefore, at length. It says inter alia:

“Appellants have filed an elaborate argument in support of the contention that the decree of the Superior Court entered pursuant to the mandate of the Supreme Court is erroneous in view of what as is claimed were the changed conditions since the original decree of the Superior Court was entered, from which decree the former appeals to this and the Supreme Court were taken. * * * It is said that at the time the original decree of the Superior Court was entered there was only a threatened forfeiture, the declaration of which was enjoined, and that at the time the last decree was entered the forfeiture had been declared and had become a consummated and established fact. It is argued that the Superior Court ‘should have pursued either one of two courses’—either literally followed the remanding order and gone no further, stopped there and said nothing more, or it should have recognized and acted fully upon the changed conditions; that ‘it should have done no more than fix the amount due from the Equipment Company to the Brake Beam Company and decree its payment, and should have left all other matters open for further adjudication.’ The ground upon which this contention of the Brake Beam Company is based is that on November 9, 1904, when a forfeiture of the lease to the Equipment Company was declared, pending the former appeal, more than ten days had. elapsed after the entry of the decree of the Superior Court, from which that appeal was taken, and the Equipment Company not having then paid the $19,624.50 within the ten days from its date fixed by the decree, and having prayed an appeal from that decree without obtaining an order continuing the injunction in force, said injunction ‘had ceased to be in force and effect,’ and the Brake Beam Company was therefore entitled to declare and to enforce a forfeiture as it undertook to do; that the appeal did not have the effect of continuing the injunction in force beyond the ten days. It is claimed that the part of the decree which dissolved the injunction, unless the Equipment Company paid the money into court within the ten days, was ‘self executing.’ It appears that the Equipment Company prayed and was allowed an appeal to this court from that decree and filed its appeal bond of $30,000 within the ten days from entry of the decree. This court reversed the decree of the. Superior Court and entered a decree here granting an injunction against the Brake Beam Company. The judgment of this court reversing the decree of the Superior Court was reversed by the Supreme Court, but in the remanding order that court recognized there was an injunction existing and still in full force and effect. That remanding order finds the sum fixed in the original decree appealed from to be due the Beam Co. from the Equipment Company, directs a decree for its payment within .thirty days from the entry of such decree, ‘ and that in default the injunction be dissolved. ’ If there was no injunction then in force restraining the enforcement of a forfeiture there would have been no occasion so to provide for its dissolution, in case of such default.'

“The original bill of the Equipment Company prayed an injunction restraining the defendants from proceeding to declare a forfeiture and from re-entering the demised premises. The relief sought was a perpetual injunction. The temporary injunction granted was, as said in Lamber v. Alcorn, 144 Ill. 313-320, ‘a mere ancillary writ which the complainant was at liberty to apply for or not, as he saw fit. Its only object was to preserve the status quo until a final hearing could be had/ It is therefore unimportant to consider the precise effect of the appeal from the original decree of the Superior Court upon that temporary injunction. The purpose of the bill was to obtain a permanent injunction. Pending the final determination of that question whatever action the appellant company took pending the appeal was, as further said in Lambert v. Alcorn, supra, ‘at the risk of having its acts pendente lite declared illegal and of being compelled to restore everything to the condition in which it was at the commencement of the suit. See also New Haven Clock Company v. Kochersperger, 175 Ill. 383-395. If, in the case at bar, appellee was entitled to have upon its bill as originally filed a perpetual injunction restraining a forfeiture of the lease, it is entitled to such injunction without reference to whether the original temporary injunction granted by the Superior Court was or was not dissolved by the decree of that court pending the appeal therefrom to this and finally to the Supreme Court. The material thing is that the Supreme Court found appellee entitled to an injunction upon payment of the amount due from it to the appellant Brake Beam Company, that it found such an injunction in force and directed in effect that upon making such payment it should continue in force.’ * * * Finding no error the decree of the Superior Court will be affirmed. ’ ’

Again the Beam Company appealed to the Supreme Court, which in this case affirmed the decision of the Appellate Court on February 19, 1909. Equipment Co. v. Beam Co., 239 Ill. 111. With the language of the Appellate Court in its opinion before it, the Supreme Court thus expressed itself. After reciting the proceedings in the Superior Court on the original consideration of the bill, it said:

“The Equipment Company prayed and obtained an appeal to the Appellate Court and filed a good and sufficient appeal bond in the sum of $30,000 before the expiration of the ten days fixed by the decree for the payment of the money. Upon an appeal to the Appellate Court that part of the decree requiring the payment of $19,624.50 as a condition upon which the injunction would be continued was reversed and the injunction was made perpetual, unconditionally. The Beam Company appealed from the judgment of the Appellate Court to this court and this court in effect reversed the Appellate Court and affirmed the Circuit Court,” (the Superior Court is meant) “although the final order did not express this result in the usual terms.”

After then reciting the language of the Supreme Court opinion in 226 Ill., Mr. Justice Vickers proceeds :

“The only difference in the degree directed to be entered by this Court and the original decree of the Circuit Court is that the time within which the payment was to be made was changed by our direction from ten days to thirty days.”

Then after reciting the decree of the Superior Court entered on May 8, 1907, he again proceeds:

‘ ‘ This final decree was entered on the 8th day of May, 1907. An appeal was perfected to the Appellate Court for the First District, and that court affirmed the decree below. The Beam Company has prosecuted further appeal to this court and assigns numerous causes for a reversal.

“The greater portion of appellant’s brief is devoted to questions that are not properly presented for consideration upon this record. A decree entered in accordance with the directions of this court cannot be erroneous. * * * The only question therefore that is open for consideration on the record as presented at this time is, was the decree of the Circuit Court in accordance with the mandate and directions of this court?

“Appellant contends that that portion of the decree of the Circuit Court perpetually enjoining appellant from proceeding to enforce a forfeiture of the lease and from taking possession of the personal property is not authorized by our former decision. While it is not expressly stated in the remanding order that if the Equipment Company paid the $19,624.50 within thirty days the injunction should be made perpetual, yet that is the clear and necessary implication from the language used in the remanding order of this court. No other reasonable construction can be given to the language used. The Circuit Court and the Appellate Court both so understood the meaning of the remanding order, and we cannot conceive how any other possible meaning could be given to this language.”

The importance and effect of these expressions is not minimized to our mind by the fact that the opinion afterwards points out the obvious truths that “it is not the province of- the court to advise parties in advance what they may or may not safely and legally do upon a hypothetical state of facts,” and that “at the risk” of a contempt proceeding the Beam Company could raise the question “whether the original injunction was in force at the time the alleged forfeiture of 1904 was declared.”

As the Branch Appellate Court said in its opinion, already quoted, we say now, that since, as the opinion of the Supreme Court notes, “The alleged forfeiture of 1904 was declared, if at all, after the present suit was commenced and before it was finally determined,” “It is unimportant to consider the precise effect of the appeal upon the temporary injunction. The purpose of the bill was to obtain a permanent injunction. Pending the final determination of that question, whatever action the appellant company took pending the appeal was * * * at the risk of having its acts pendente lite declared illegal and of being compelled to restore everything to the condition in which it was at the commencement of the suit.”

However wanting in precision and definiteness the language of the orders of the various courts taken together may be, we think that their net result made the action of the Beam Company of November 9, 1904, ineffectual and void, either as an aggressive or defensive measure.

The whole matter is to be considered as though such action had never occurred. No forfeiture of the agreement of December, 1892, has occurred or can now occur. What this means in the determination of the suit at bar we shall now note.

The present suit was begun by the Equipment Company by its filing a bill in chancery in the Circuit Court of Cook county January 3, 1908. The bill sets up, inter alia, the lease or agreement of December 8, 1892, and the readjustment of the rent contract or clauses in 1898, and alleges that the Equipment Company has complied with all the terms of the said agreement except that it has been determined that $20,000 of the moneys originally received and payable on or before January 1, 1908, has not been paid and that although tendered the instalments of rent since July 1, 1904, aggregating $17,500, have been refused. It further alleges that the purpose of the original and supplementary agreements between the companies was the succession of the Equipment Company to the Beam Company and the redemption at par of the outstanding stock of the Beam Company; that the name National Hollow Brake Beam is the trade name known in the business of the Equipment Company, and has become essentially identified with its good will; that it is informed that the Beam Company is about to engage in business as manufacturers of brake beams and place them on the market under the name of National Hollow Brake Beams, and enter into competition with the Equipment Company, and that notwithstanding the express provisions of said agreement and lease that the Beam Company should be prohibited from engaging in business in competition with the Equipment Company at any time prior to January 1, 1908, or at any time within five years from and after that time, should no forfeiture be had of said contract the Beam Company and Laughlin are falsely asserting as a pretext for a violation of said stipulations that the Equipment Company has suffered a forfeiture of its said agreement and lease, and that its stipulations are no longer binding on the Beam Company.

There were other matters alleged in the bill, and details elaborated, but the foregoing statement is sufficient to show the grounds on which the following prayers were made:

(a) That the Beam Company be enjoined from at any time engaging in the business of the manufacture and sale of brake beams and other appliances for railway cars and locomotives.

(b) That the Beam Company be enjoined from at any time directly or indirectly using or employing or permitting others to use or employ the name “National Hollow Brake Beam, ’ ’ or any like name in, about or in connection with the manufacture or sale of brake beams or other appliances for railway cars and locomotives.

(c) That the Beam Company and Laughlin be enjoined from continuing the organization of the said Beam Company and directed by order of the court to refrain from continuing business in the name of said Company.

(d) That a receiver be appointed for the Beam Company, to take charge of its money and property, to pay its creditors, and to distribute its remaining assets among its shareholders (if such shareholders had not already received par for their stock), and to pay the remaining assets to the Equipment Company.

(e) That an account be taken under the direction of the court of the amount of money and bonds received by Laughlin from or on account of the Beam Company, and that he be decreed to pay the Beam Company what, if anything, shall appear on such accounting to be due from him, with interest.

(f) For such further general relief as equity may require.

The Beam Company answered this bill and twice amended its answer, and set up at length the relations between the Companies and their history and much of the differences between Leigh and Laughlin. It relied largely for its defense against the prayers of the bill which were based on the Equipment Company’s contentions concerning the construction of the lease of December, 1892, on the position that the rights of the Equipment Company under that lease had been validly forfeited in November, 1904, on account of its default in obligations imposed on it by said lease.

Our opinion already indicated that the so-called forfeiture was invalid and a nullity, disposes of that position for the purposes of our adjudication, and leaves the questions for us as they seem to have presented themselves to the chancellor below—what did the lease require after January 1, 1908, under the circumstances shown in evidence, and under what conditions imposed on and complied with by the Equipment Company should such relief as might .be granted against the defendants be given?

The chancellor decreed, not as prayed, (a) that the Beam Company be enjoined from at any time engaging in the manufacture and sale of brake beams and other railway appliances, but that (certain conditions hereinafter described having been complied with by the Equipment Company) it should be so enjoined for the five years after the expiration of the lease on December 31, 1907—that is until December 31, 1912.

We think that this was a correct construction of the “lease” agreement. Its terms meant, in our opinion, that at the end of fifteen years from January 1, 1893, the particular brake beam and railway appliance business of the Beam Company should in the event that no ,forfeiture had taken place, be the property of the Equipment Company, and that after that time—that is after January 1, 1908—there should be no competition in it by the Beam Company for five years.

The chancellor also decreed under the same conditions that the Beam Company should be perpetually enjoined from using the name “National Hollow Brake Beam” or any like name in, about or in connection with the manufacture or sale of brake beams or other appliances for railway cars or in any way interfering with the good will of the business transferred by the Beam Company to the Equipment Company, under date of December 8, 1892.

This also we deem a proper order. We think that the agreement of December 8, 1892, amounted to a lease of the real estate and machinery and a conditional sale of the other property, the patents and good will of the business; and that the “rental,” as it was called, payable in instalments, was in effect purchase price for the latter as much as payment for the use and occupancy of the former. The sale was to become absolute if the term of the lease—fifteen years—expired without its forfeiture.

It is the substance of an agreement like this, and not the form, with which equity deals.

The prayers (c) and (d) for an injunction and (e) for an accounting, were not granted and therefore are not matters to be considered in this appeal by the Beam Company.

We have spoken of the conditions imposed on and complied with by the Equipment Company. They were based on the general principle of equity that complete justice and settlement between the parties whose mutual relations are under consideration before the court, should be effected by a final decree if possible.

We have noted that $17,500 of the “rental” accruing after the reduction in 1898, and after the alleged forfeiture in 1904, was unpaid because, although tendered in semi-annual instalments of $2,500, it was refused by the Beam Company. It is manifest that equity required that this should be paid before the relief to be granted the Equipment Company should be effective, and although the bill did not offer to make this payment (apparently upon the theory not now necessary to discuss, that an accounting would show an offset of money due to it as excess over what was sufficient to redeem the Beam Company’s stock), yet the decree finds that the Equipment Company produced in open court this sum of $17,500 and offered it to the Beam Company and it was again refused. Thereupon the court ordered the sum to be paid by the Equipment Company to the clerk, and by the clerk to the Beam Company, "without prejudice to the right of the Beam Company to appeal from the decree.

There was no error in this. It was a proper disposition of the matter. The Equipment Company urged in this court, before joining in error, that the acceptance by the Beam Company of this money and of the $20,000 subsequently herein mentioned, should prevent the consideration of this appeal; but this contention we negatived in our disposition of the plea by the Equipment Company of a release of errors.

Both right, reason and authority seem to us to justify our decision. Schaeffer v. Ardery, 238 Ill. 557. To hold the contrary would be the limitation of equitable powers by a highly technical rule.

The $20,000, which had .been ostensibly represented by the “Atkins-Milligan” notes, but which the Superior and Supreme Courts had adjudicated had never been paid (Beam Co. v. Equipment Co., 226 Ill. 28), also became due when the “lease” expired, January 1, 1908. This sum also, the chancellor decreed should be paid with interest to the clerk by the Equipment Company and to the Beam Company by the clerk.

Of course the Beam Company having accepted these amounts which were admittedly due, does not complain in this appeal of the portions of the decree which ordered them paid, but it does strenuously insist that the terms imposed thereby on the Equipment Company were not adequate to do justice between the parties, even if the case were a proper one for the exercise of the powers used to give relief to the Equipment Company.

The sixth point of its brief declares that “The Decree appealed from is erroneous in that it fails to require the Equipment Company, though seeking equity, to do equity, and fails to impose equitable terms and conditions upon it.”

The first of the terms which it insists should have been and was not imposed was the payment by the Equipment Company of interest on the $20,000 before mentioned for the years 1899 to 1907 inclusive and amounting, with interest, to $14,454. The second was the payment by the Equipment Company of the costs and expenses, including attorney’s ■ fees, in various suits mentioned in the decree—notably the forfeiture suits, so-called. These, the Beam Company offered to show, were in excess of $11,000. The third was the payment of an item of $824.27, which the Beam Company alleges it was required to pay for insurance, because of the wrongful refusal of the Equipment Company to comply with a clause of the “lease.”

We will consider each of these briefly:

The claim for $14,454, as we think, was properly rejected by the chancellor.

From and after December 31, 1898, the contract made in accordance with the proposition of Laughlin in March, 1898, provided that the “rental” should be but $5,000 a year. A valid consideration was given for this agreed alteration in the relations of the parties, and it stands unrescinded. Nor has the Beam Company asked for a rescission. Although the proposition of Laughlin which led to the modification of the contract contained a recital that the Equipment Company had paid back the $158,287.90, while it after-wards was made to appear that this statement was erroneous as far as $20,000 was concerned, yet there is no evidence of any statement by the Equipment Company to the Beam Company, fraudulent, mistaken, or otherwise, that the payment in question of $158,287.90 had been made in full, and we do not think that the validity of the alteration in the agreement and of the new contract in any degree depended on it.

Moreover, although in our view immaterial, we agree with the contention of the Equipment Company, upheld by the chancellor, that the adjudication in the “forfeiture” suits foreclosed the right of the Beam Company now to demand this additional money.

The Equipment Company in the “forfeiture” suit offered to pay all moneys which might be owing by it to the Beam Company, and certain sums were ordered to be paid by it as a condition of relief. The Beam Compay did not claim in that suit that it had the right after January 1, 1899, to $6,200 a year instead of $5,000, and it is now too late for it to do so. That adjudication embraced all matters properly involved in that suit and which might have been raised and determined in it. In re Northwestern University, 206 Ill. 64, and cases therein cited.

The claim for costs, expenses and attorneys’ fees arises from the provision in the “lease” of December 8, 1892, that “the lessee shall and will pay and discharge all costs and attorney’s fees and expenses that shall arise from enforcing the covenants and agreements of this lease by the lessor.”

We think, after careful consideration, that the chancellor was right in rejecting it. No suit or proceeding has been brought at any time by the Beam Company to enforce the covenants of the “lease.” The costs and expenses claimed arose and were said to have been paid by the Beam Company in litigation brought against it by the Equipment Company, in which, according to our views of the whole matter, previously expressed, the Equipment Company was found in the main to be in the right and to be entitled to a decree in its favor. In each of them the Beam Company was held to be claiming more than was allowed it as a condition of the relief granted the Equipment Company, and threatening unjustifiáble action if its claims were not allowed by that company.

Costs and solicitors’ fees of this kind are not allowed unless strictly contracted for or the equity is clear and indubitable. We cannot hold that the court below erred in relation to this contention of the Beam Company.

The item for insurance was properly denied. The “lease” provided that the “lessee shall at its own expense keep the buildings, machinery and all personal property insured to the full insurable value, and transfer all policies of insurance to lessor.”

And as another clause of the lease provided that at the expiration of the lease the lessee should return and re-deliver the buildings and machinery to the lessor, there is an implication that money received on the insurancé of buildings and machinery would go to replace any buildings or machinery destroyed.

It is not contended that the Equipment Company did not “keep the buildings, machinery and personal property insured to its full insurable value,” but only that the insurance policies were not transferred on demand, and that in consequence Laughlin on April 23, 1906, took out policies in the name of the Beam Company, and for this insurance up to the expiration of the lease on December 31, 1907, paid $824.27.

But it appears from Laughlin’s testimony that this demand for the transfer of the policies was not made under the contract of lease, hut because he contended that the lease had been forfeited and had ceased to exist. He says that prior to the supposed forfeiture of the lease in 1904, Mr. Leigh held the policies, being treasurer of the Beam Company and treasurer also of the Equipment Company.

We do not think that the failure, under the circumstances, to “transfer” the policies in existence made the cost of the policies taken out by the Beam Company a charge against the Equipment Company.

We do not find any of the assignments of error in this appeal well taken, and the decree appealed against is affirmed.

Affirmed.


text:
    Chicago Railway Equipment Company, Appellee, v. National Hollow Brake Beam Company, Appellant.
    Gen. No. 16,002.
    This ease is controlled by the opinion in No. 16,001, ante, p. 595.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 7, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Defrees, Buckingham, Ritter & Campbell and Randolph Laughlin, for appellant; Randolph Laughlin, of counsel.
    W. S. Oppenheim, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In case No. 16001 in this court, an opinion in which . we have contemporaneously handed down, we have discussed the questions involved in this appeal (ante p. 595). Irrespective, therefore, of the fact that the decree below on the original bill ordered that the questions herein raised should not be relitigated on the cross-bill, the decree on which is in this appeal attacked, it is apparent from our opinion in case 16001 what our disposition of this cause must be and what our reasons are for said disposition. The decree appealed from by the Beam Company in the cause at bar was also appealed from by the Equipment Company. We have affirmed it as against the contentions of the Equipment Company and now do so as against the contentions of the Beam Company.

Affirmed.