text:
    James LaVeer, Appellee, v. Hanke Iron & Wire Works, Appellant.
    Gen. No. 19,724.
    1. Negligence, § 24&emdash;duty of owner of premises to invitees. The duty of an owner or occupant to keep premises in reasonably safe condition for invitees does not require that they he kept safe for an improper use or for a use that could not reasonably he anticipated.
    2. Negligence, § 221*&emdash;when instruction as to duty of owner to invitees misleading. Where a railroad company had delivered a carload of iron to a manufacturing plant over a switch track which ran to the plant, and while employes of the plant were engaged in unloading the car a switch engine with its crew appeared and ordered such employes to leave the car to permit- some switching, and a switchman climbed upon the pile of unloaded iron to uncouple a car from the car which was being unloaded and was injured by the pile of iron giving away, and the switchman brought suit against the Manufacturing Company for the injuries, held, that an instruction given for plaintiff authorizing a recovery on the ground that the defendant had invited the railroad employes, including the plaintiff upon the premises and that it was the duty of defendant to exercise ordinary care to keep the premises in safe condition, was misleading and erroneous as not based on the evidence in the case and as not stating the law applicable to the facts.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Rehearing denied July 28, 1914.
    Theodore H. Wunderlich, for appellant; John H. Kane, of counsel.
    Morse Ives, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

Appellee sued appellant in an action on the case for injuries received by appellee on October 23, 1911. On the trial the jury found the defendant guilty and assessed the plaintiff’s damages at three thousand dollars. After denying a motion for a new trial the court entered judgment against appellant on the verdict.

The evidence shows that a switch track from the Baltimore & Ohio Chicago Terminal Railroad Company ran into or by the side of the manufacturing plant of defendant, and that over this track, in the regular course of business, carloads of iron were delivered by the railroad company, plaintiff’s employer, to the defendant, and when the cars were unloaded by the defendant they were taken away. The evidence does not show the ownership of the switch track, or whether it was on the premises of the defendant or in the public highway as claimed by defendant. If not on the premises.of defendant, it was adjacent thereto.

One or more carloads of iron had been delivered to defendant on the switch track the morning of the accident, and the defendant’s employes were engaged in unloading a carload of iron from a gondola car. About eleven o’clock, when about two-thirds of the iron had been removed from the car, a switching crew of the railroad company appeared with a locomotive and car attached and ordered defendant’s employes out of the car which they were unloading in order to permit the crew to do some switching. Appellant’s employes thereupon took off the slides, or skids, which they were using to slide the iron from the car to the ground, and the switching crew took possession of the car. The plaintiff, a member of the switching crew, then climbed over the pile of iron and stood on it to uncouple the car from the box car standing next to it. When he reached down to take hold of the pin lifter, the iron gave way under his feet and he caught hold of the platform of the gondola car to keep from falling, and Ms hand, by reason of the sharp curve in the track, was crushed between the platform and the corner of the box car.

Upon the evidence the question of liability of defendant, appellant, is doubtful to say the least. What duty the appellant owed to the plaintiff under the circumstances shown in the evidence and failed to perform does not clearly appear. In such a case it is important that the rulings of the court in receiving and excluding evidence and on instructions be free from error.

Error is assigned upon the giving of the first instruction requested by the plaintiff, which is as follows:

“1. The jury are instructed that if you find from the evidence, under the instructions of the court, that the defendant invited the employes of the Baltimore & Ohio CMcago Terminal Railroad Company, including, the plaintiff, to come upon and adjacent to its premises pursuant to the business of the defendant, and that such employes, including the plaintiff, went upon and adjacent to said premises in response to such invitation, then, wMle said employes of said railroad company, including the plaintiff, were upon and adjacent to the premises of the defendant pursuant to its business in response to such invitation, it was the duty of the defendant to exercise ordinary care to keep said premises in a reasonably safe condition for the use of the plaintiff there.”

While an invitation to the employes of the railroad company, including the plaintiff as one of them, to go upon the defendant’s premises in the business of the defendant may be implied on the facts shown in the evidence, and that thereupon it became the duty of the defendant to exercise ordinary care to keep the premises in a reasonably safe condition for the use of the plaintiff, the evidence fails to show facts and circumstances which would establish or tend to show an implied invitation to the plaintiff to go upon the pile of iron made in the process of unloading iron from a car, and use it for the purpose of uncoupling cars. It was not a dangerous pile of iron if left alone and not used for a purpose for which it was not designed. The iron was being thrown there for the temporary purpose of unloading it from the cars and removing it to a place of storage nearby. We think no invitation was shown by the evidence to the plaintiff to go upon the pile of iron for any purpose. The mere statement of the plaintiff that it was necessary for him to go upon the pile of iron to uncouple the cars does not raise the duty set forth in the instruction. The duty to use ordinary care to keep the premises in a reasonably safe condition for the use of the plaintiff does not extend to such a pile of iron as the one in question and the use of such pile for the purpose for which the plaintiff used it.

In Sherman & Bedfield on Negligence, vol. 3, sec. 706, it is said:

“It is the duty of the owner or occupant of land and tenements to exercise reasonable or ordinary care to keep his premises in a safe condition for the use of those present thereon by express or implied invitation; and for injuries caused by his failure so to do, either in original construction or in maintenance and preservation, he is liable to one himself exercising reasonable or ordinary care for his own safety.”

But the same authors say in the next section (707):

“The owner or occupant of real property is not bound to make it safe for a purpose which is unlawful or improper, or for which he could not reasonably anticipate that it would be used, or in a mode for which it was obviously never designed, even though such use was intended for his benefit * * *.
Insufficiency for a purpose not contemplated is, in truth, no defect at all.”

Where a tenant used a fire escape for a balcony, and in consequence of overweighting it fell, the landlord was held not responsible, even though it might have been out of repair. McAlpin v. Powell, 70 N. Y. 126. To the same effect is Chapin & Gore v. Walsh, 37 Ill. App. 526.

The instruction is not based on the evidence in the case. As applied to the facts shown it.does not state the law. It is, therefore, misleading and erroneous.

For the reasons given above in discussing the first instruction to the jury, the instruction given under the additional count was erroneous.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Mary Schiller, Appellee, v. George W. Nevius, Appellant.
    Gen. No. 19,761.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Statement of the Case.
    Action in case by Mary Schiller against George W. Nevius and Laird W. Nevius. The declaration is in three counts, in all of which the defendants are charged with negligence in the practice of their profession as dentists. In each count the relation of the parties, the legal duty arising therefrom and the violation of that duty, resulting in injury to plaintiff, are alleged according to the approved forms given in Chitty’s Work on Pleadings. No service was had on Laird W. Nevius. From a judgment for plaintiff, defendant George W. Nevius appeals.

      Abstract of the Decision.
    Courts, § 96

      —jurisdiction of County Court. The county court has no jurisdiction of an action charging defendants with negligence in the practice of dentistry where the declaration and each count thereof are in tort and not in contract.
    Robert J. Folonie, for appellant.
    Leonard L. Cowan and Daniel V. Gallery, for appellee.

      See Illinois Notes Digest, Vole XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the., court.


text:
    Joseph T. Mellon, Appellant, v. Albert E. Hagen, Appellee.
    Gen. No. 19,795.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Statement of the Case.
    Bill by Joseph T. Mellon against Albert E. Hagen to rescind a contract of purchase of a one-half interest in a saloon business for fraud, and to dissolve a partnership between the complainant and defendant, and for an accounting, and to set aside a certain note and mortgage given by the complainant to the defendant in part payment for the one-half interest in said business. A general and special demurrer was sustained to the original bill and to four amended bills thereafter filed by leave of court. The demurrer was ordered to stand to the fourth amended bill which was dismissed for want of equity. From the order dismissing the bill for want of equity, defendant appeals.
    Abstract of the Decision.
    1. Sales, § 96*—when bill to rescind for false representations sufficient. A bill to rescind a contract of purchase of a one-half interest in a saloon business and for other relief on the ground that the seller made false and fraudulent representations concerning the income of the business, held to state grounds sufficient to entitle complainant to equitable relief.
    2. Costs, § 73*—when costs of additional abstract of record taxed against appellee. On appeal from a decree dismissing an amended bill for want of equity, where an additional abstract of record consisting of forty-nine pages sets up the original bill and the several amendments thereto and the special demurrers to such bill and the several amendments, which are wholly unnecessary for a consideration of the case, the cost of such abstract will be taxed against appellee.
    Rieger & Rieger, for appellant; George H. Sugrue, of counsel.
    Alfred E. Barr, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.


author: Mr. Presiding Justice Baker

text:
    Joseph Elia, Defendant in Error, v. Frank Bavuso et al. (Defendants), Vincenzo Guglielmo, Plaintiff in Error.
    Gen. No. 19,731.
    1. Peooess, § 8

      —sufficiency of summons in suit on penal bond. In an action of debt on a penal bond the summons should state the debt demanded.

      2. Jury, § 84

      —sufficiency of oath. Where a default is entered in an action of debt on a penal bond, a jury should be impaneled and sworn to assess plaintiffs damages; allowing a jury to assess damages upon being sworn, only “to try the issues joined and a true verdict render according to the evidence” is reversible error.
    Error to the County Court of Cook county; the Hon. William F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 15, 1914.
    Rehearing allowed June 21, 1914 and opinion refiled July 20, 1914.
    Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for plaintiff in error.
    William A. Jennings, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff Elia brought an action of debt against the defendants on a penal bond in the sum of four thousand six hundred dollars to perform the covenants in a certain building contract between Bavuso and plaintiff. The summons fails to state the debt demanded and only states that the defendants are required to answer “unto Joseph Elia in a plea of debt to the damage of the plaintiff one thousand dollars.” The declaration is not drawn in accordance with approved forms, hut as the judgment must be reversed for an error in procedure, we will not consider the question of the sufficiency of the declaration to support a judgment by default.

It appears from the record that plaintiff in error Gruglielmo was duly served with summons, and failing to appear his default was entered; that thereupon came a jury, who were sworn “to try the issues joined and a true verdict render according to the evidence”; that the jury returned a verdict finding the issues for the plaintiff, finding “his debt to be $4600.00” and assessing plaintiff’s damages at one thousand dollars; that then and before the entry of judgment the following order was made: “It is ordered that said debt be discharged upon the payment of the damages, costs of suit and interest thereon.” Then follows a judgment that plaintiff recover of defendant Gruglielmo the sum of one thousand dollars and his costs. No issue was joined between the parties. The plaintiff had the right to have the damages assessed by a jury, but the swearing of the jury was radically defective because it did not include an oath to assess plaintiff’s damages. The jury should have been impaneled and sworn to assess plaintiff’s damages, and for the error in failing to swear the jury to assess the damages the judgment must be reversed. McLain v. Taylor, 9 Ark. 358; Sydnor v. Burke, 4 Rand. (Va.) 161. “On an inquest of damages the jury should be sworn to ascertain the quantum of damages and not to try an issue joined.” 10 Encyc. of PL & Pr. 1152.

The result may have a beneficial effect by producing more care on the part of attorneys in declaring and in the clerks of courts in preparing writs and keeping records, and thus preserve in attorneys and clerks some attention to legal forms. When the case goes back to the County Court for the reason assigned, the plaintiff will have an opportunity to amend or the defendant to demur to the declaration.

Reversed and remanded.


author: Mr. Justice Gridley

text:
    Chicago Directory Company, Appellee, v. Clark J. Herringshaw, Appellant.
    Gen. No. 20,514.
    1. Tbade-marks and trade names, § 24

      —when evidence insufficient to show unfair competition 6y use of name of “Blue Booh." On hill to enjoin defendant from using the name “Blue Book” as the title to a publication which defendant was advertising to put on the market, on the ground that a book published by the complainant by the titles “Chicago Blue Book” or “The Blue Book” had become known as publication of complainant’s for a number of years and that to permit defendant to publish his book under such title would induce the public to believe that it is complainant’s publication, held that the case was an “unfair competition” case and not a “trade-mark” case, and that the evidence was insufficient to show that the "Chicago Blue Book” or “The Blue Book” had been so exclusively identified with complainant’s publication as to indicate complainant’s publication alone, or that defendant was guilty of attempting to pass off his publication as that of the complainant.
    2. Contempt, § 70

      —when order imposing fine for benefit of complainant erroneous. Upon a finding that defendant was guilty of contempt for violation of an injunction, an order imposing a fine upon the defendant for the benefit of complainant held erroneous.
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed.
    Opinion filed July 28, 1914.
    Statement by the Court. This is an appeal by the defendant, Clark J. Herringshaw, from an interlocutory order or decree denying his motion to vacate and dissolve a preliminary injunction and adjudging him to be in contempt for violating said injunction and fining him $200.
    On December 19, 1912, the complainant, Chicago Directory Company, an Illinois corporation, having its office and principal place of business in the city of Chicago, filed its sworn bill of complaint in the Superior Court of Cook county against said defendant. The bill alleges, in substance, that complainant’s business was that of compiling, publishing and selling directories; that for many years, in addition to publishing the City Directory of Chicago, it had been publishing a book consisting of selected names from Chicago and suburban towns, known as “Chicago Blue Book”; that about the year 1890 complainant adopted said title for said book to designate it as being complainant’s publication and has since continuously used said title, and that the book has acquired a ready sale and wide circulation, and has become known to the trade and the public generally by the titles “Chicago Blue Book” or “The Blue Book,” as the publication of complainant and of no other person or corporation; that since 1890 the book has been published each year and the volume for the year ending 1912 is the twenty-third volume of the series; that all of the volumes have borne conspicuously upon the outside cover thereof, and upon the title page, the words “Chicago Blue Book,” and have been referred to by complainant in its advertise-' ments and announcements either by that title or ‘ The Blue Book”; that said words have acquired and now possess a distinct secondary meaning, and, to dealers in books and users of books, are understood to refer exclusively to complainant’s publication; that the defendant is engaged in the business of publishing books in the Lakeside building, Chicago, and has recently distributed circulars wherein he has advertised that he is about to put upon the market a book entitled “City Blue Book of Chicago Biography,” and defendant is now engaged in soliciting subscriptions for said book under that title; that the use of said words “Blue Book,” either in connection with the word “Chicago” or alone, in defendant’s said announcements has already caused confusion and induced the belief that defendant’s book was to be published by complainant and was one of the series of complainant’s “Chicago Blue Book”; that if defendant is permitted to continue his said advertising and solicitation much damage will ensue to complainant, and if defendant is permitted to publish his said book the same will be purchased by the public in the belief that it is complainant’s publication, and complainant and the reputation of its publication will be greatly injured, and the public will be deceived and misled; that the proposed use of the said title of defendant’s book is for the purpose of enabling defendant to profit by the reputation of complainant and of its said publication, and that defendant’s conduct is fraudulent in intent and result; that complainant has duly warned defendant of its rights in the premises and requested him to refrain from the use of the words “Blue Book” or “Chicag’o Blue Book” in advertisements or otherwise as a title of any publication not complainant’s, but defendant has entirely, disregarded said warning and threatens to continue his practices as aforesaid, either in the exact form herein complained of or with variations, which are colorable only and which will not prevent the public being deceived or injury to complainant. The bill prayed that defendant and his agents, servants, etc., might be at first, during the pendency of this suit, temporarily enjoined, and afterwards permanently enjoined, etc., and that defendant might be required to account to complainant for all gains and profits, etc.
    The motion of complainant for a preliminary injunction was referred to a master in chancery to hear the same and report his conclusions thereon. Subsequently the defendant filed an answer to the bill, duly sworn to, in which he denied that complainant was entitled to an exclusive use of the words “Blue Book,” either alone or in connection with any other words, or to the relief prayed or any part thereof. On the hearing of the motion before the master no testimony was taken, but both parties introduced several affidavits and exhibits. On February 19, 1913, the master filed a lengthy report in which he reviewed the affidavits and exhibits, referred to many decisions of the courts, and concluded that complainant’s motion should be granted, and recommended the issuance of an injunction against defendant, his agents, servants, etc., as prayed on complainant’s bill. On the following day, February "20th, the court approved the master’s report, overruled exceptions thereto, and ordered that upon complainant furnishing a bond of $5,000 an injunction issue as follows:
    “That the said defendant, Clark J. Herringshaw, his agents, servants, employes, attorneys, workmen and assigns be, and the same hereby each and all are, during the pendency of this suit and until the further order of the court, enjoined and restrained from using or employing in connection with the advertisement, publication, offering for sale or sale of any publication, not being the genuine publication of complainant, the words, ‘Chicago Blue Book’ or ‘Blue Book of Chicago Biography, ’ or any like word or names, whether accompanied by other words or not; and from using or employing in connection with the advertisement, publication, offering for sale or sale of any publication, not being the genuine publication of complainant, the words ‘Blue Book,’ without clearly distinguishing the same from the publication of complainant so as unmistakably to indicate that the same is the publication of the defendant and not the publication of complainant ; and further from using any name or names, device, artifice or contrivance which may be calculated to induce the belief that any publication not complainant’s is in fact complainant’s.”
    On July 9, 1913, complainant filed a sworn petition and made a motion to commit the defendant for contempt for a violation of said injunction. The petition alleged, inter alia, that defendant’s advertisements and announcements, which formed the basis of the charge of unfair competition in complainant’s said bill of complaint and which were enjoined as aforesaid, contained as the title of defendant’s proposed publication ‘ Herringshaw’s City Blue Book of Chicag*o Biography”; that on or about June 1, 1913, the defendant caused to be sent to J. Platt Underwood and many other persons a certain circular, as a part of an advertising campaign conducted by defendant in connection with the distribution and sale of' defendant’s said publication, described by him as “ Herringshaw’s City Blue Book of Biography, Chicago Men of 1914”; that such changes in the name of said publication are colorable only and that the distribution of said circulars is calculated to deceive the public and injure complainant and is in deliberate violation of said injunction. Defendant was ruled to answer this petition by July 18th, which he" did, and said petition and answer were referred to the same master in chancery to take evidence and report his conclusions. Defendant in his sworn answer disavowed any intention of violating said injunction and denied that he had been guilty of any violation thereof. The master found, and so reported to the court on July 29, 1913, that the advertising and offering for sale of defendant’s publication under the title of “Herringshaw’s City Blue Book of Biography, Chicago Men of 1914,” as disclosed by said circulars was calculated to deceive the public and was a deliberate violation of said injunction, and recommended that the defendant be attached for contempt of court. Subsequently, on March 11,. 1914, the defendant having previously moved for a dissolution of the injunction order of February 20, 1913, the court, after hearing arguments, ordered (1) that defendant’s “said motion to dissolve and vacate said preliminary injunction be denied”; and (2) that the master’s report on complainant’s said petition be approved, that the defendant be adjudged to have committed the contempt as alleged and as found by the master, and that the said defendant “pay into court for the benefit of the complainant, within ten days * * * a fine in the sum of $200, and that complainant recover of and from the defendant its costs.” etc. The defendant prayed an appeal “from this entire order,” which appeal was allowed upon filing a bond in the sum of $250, and was subsequently perfected.
    On the hearing before the master on the motion for a preliminary injunction, complainant submitted its sworn bill of complaint and various affidavits and exhibits. In the affidavit of Beuben H. Donnelley, vice president of complainant, it is stated in substance that complainant has published the “Chicago Blue Book” yearly since 1890; that that title has always appeared upon the outside of the book and upon the title page; that in complainant’s advertising and printed matter the words “Blue Book” have been frequently used as well as the full name “Chicago Blue Book”; that the book has a circulation of about 1,800 copies annually and is lmown to and used by many people; that affiant had some time previously received one of defendant’s circulars advertising “ Herringshaw’s Chicago Blue Book of Biography,” whereupon complainant at once communicated with defendant requesting him to discontinue the use of the names “Chicago Blue Book” or “Blue Book” in connection with his publication; that this correspondence resulted in the defendant substituting the word “City” for “Chicago” in the title of his publication, but still containing the word “Chicago” in a subtitle; that in affiant’s opinion this was not sufficient to prevent confusion; and complainant again wrote defendant that said change was not satisfactory and requested further changes, but defendant did not reply. Attached to said affidavit as exhibits were circulars of complainant and defendant advertising their respective publications, and also certain letters, received by complainant during October and December, 1912, from certain individuals, advising complainant that they had received copies of defendant’s circulars and making certain inquiries as to same. The affidavits of Martin B. Brennan, an employe in the book department of Carson, Pirie, Scott & Co., of H. A. G-ould, an employe of A. C. McClurg & Co., booksellers, and of Gr. W. Ford, of the firm of Dunwell & Ford, dealers in stationery and books, were also presented by complainant. They were to the effect that the respective affiants had long been familiar with complainant’s publication, known as “Chicago Blue Book” or “Blue Book,” and that in their judgment and belief said names or titles indicated complainant’s publication. In the affidavit of J. P. Underwood it is stated that in December, 1912, he received one of defendant’s circulars; that at first he thought-the cireular was a request from complainant for him to renew his subscription for complainant’s publication for the current year; that he “got this impression” from the fact the words “City Blue Book” and the word “Chicago” appeared upon the blank; that the words “Blue Book” in connection with any Chicago publication immediately associated themselves in his mind with complainant’s publication; that on looking at the blank more closely it occurred to him that some other concern was about to put out a rival publication, and thereupon he wrote a letter of inquiry to complainant. In the affidavit of Finley Barrell, of Chicago, it is stated that early in October, 1912, he received one of defendant’s circulars; that he at first assumed it was a subscription blank for complainant’s publication, but that on closer inspection he was doubtful about it and he inquired of complainant, etc. The affidavits of A. D. White, employed in the advertising department of Swift & Co., Chicago, and of J. Q. Williams, a publisher’s representative in Chicago, are to the same effect.
    On behalf of the defendant, several affidavits with accompanying exhibits were presented. In the affidavit •of Thomas W. Herringshaw, the father of defendant, it is stated in substance that affiant has been engaged in the publishing business in Chicago for thirty years; that his office has been in the Lakeside building, corner of Clark and Adams streets, Chicago, for more than ten years; that he has studied the history and meaning of the term “Blue Book”; that said term originated in England more than three hundred years ago, and has since that time been applied to various published reports, compilations and directories used by various departments of trade; that since 1681 the term has been applied by the British (Government to reports and documents put forth by various branches of said (Government, and has since come to be descriptive of reports put forth by any government; that this meaning of the term has become so well established that reference to it is found in practically every encyclopedia and dictionary published; that the definitions contained in many dictionaries show that the term has come to mean also “a high class compilation of information”; that more than 1000 annual publications are issued in the United States with the title “Blue Book,” either alone or in connection with another word or words, and that many of said publications are issued in the city of Chicago. Accompanying said affidavit as exhibits there were many “Blue-Books,” published in Chicago and elsewhére, such as “Blue-Book of Chicago Commerce,” “Automobile Blue-Book,” “Illinois Medical Blue-Book,” “Chicago Financial Blue-Book,” etc., etc. In the affidavit of Frank M. Morris, a bookseller in Chicago for twenty-five years, it is stated that the term “Blue-Book” is used generally among publishers all over the United States “as a title to indicate a high class of- names and addresses of persons in the particular trade or profession covered by such book.” In the affidavit of Clark J. Herringshaw, the defendant, it is stated in substance that he adopted the general form and plan for his “Blue-Book” before he had ever seen or had his attention called to the “Chicago Blue Book” published by complainant; that he originally entitled his book “ Herringshaw’s Chicago Blue Book of Biography,” and sent out requests for information to be used therein to various persons, said requests being upon printed blanks; that upon examination of complainant’s publication it is disclosed that the same is merely a directory giving the names and addresses of members of clubs and of society people, largely ladies, of Chicago and suburbs, with certain information as to clubs, churches, societies, theatres, etc.; that upon examination of affiant’s publication it is disclosed that the same is a collection of biographies of men prominent in the commercial and professional life of Chicago; that any confusion caused by the similarity of titles is to his detriment, and that when he had his attention called to the similarity between the titles of the two publications he promptly changed the title of his publication to “ Herringshaw’s City Blue Book,” with a subtitle consisting of the words “of Chicago Biography” to indicate the field of said publication, and on October 11, 1912, so informed complainant by letter; that after changing the title of his publication as aforesaid he issued new blank requests for information, containing the heading “Herringshaw’s City Blue Book,” with the words under it in small letters “of Chicago Biography”; that affiant’s father, Thomas W. Herringshaw, has been engaged for many years in publishing various directories and “Blue-Books,” including “Herringshaw’s American Blue-Book of Biography”; that affiant, in framing up a form of circular for use in connection with his book copied the form of blank or circular used by his father; that affiant never saw the blank or circular used by complainant until after the commencement of this suit, and that complainant’s blank or circular requests different information from that requested in affiant’s blank and that the two blanks are easily distinguishable one from the other; that since affiant sent out his first lot of blanks, or requests for information, he has received about 5,000 letters from Chicago business and professional men; and that affiant has never received any complaint from any subscriber to his book that the latter subscribed under any misapprehension or under the impression that he was subscribing for complainant’s publication.
    Samuel Shaw Parks, for appellant.
    Frank F. Reed, Edward S. Rogers and Charles A. Williams, for appellee.

      See Illinois Notes Digest, Vols 211 to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an “unfair competition” case. It is not a “trade-mark” case. “Unfair competition consists in passing off or attempting to pass off upon the public, the goods or business of one person as and for the goods or business of another. * * * The basic principle is that no one has a right to dress up his goods or otherwise represent them in such a manner as to deceive an intending purchaser and induce him to believe he is buying the goods of another. No monopoly is created or fostered by protection against unfair competition, but the court should be careful not to interfere with free and fair competition, and should confine itself to preventing fraud and imposition from some real resemblance in name or dress of goods. Nothing less than conduct tending to pass off one man’s goods or business as that of another will constitute unfair competition.” (38 Cyc. 756.) In a well-known English case, Burgess v. Burgess, 3 De G., M. & G. 896, 904, Lord Justice Turner said: “No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another.” “Descriptive terms and generic names are publici juris and not capable of exclusive appropriation by anyone, but may be used by all the world in an honestly descriptive and non-deceptive manner.” (38 Cyc. 800.) “Geographical terms may be used by all persons for the purpose of truthfully stating the origin of materials used, or the location of a business, subject, however, to the general rules governing unfair competition.” (38 Cyc. 802.) “Publications are property and entitled to protection against unfair competition like any other property.” (38 Cyc. 831.) “Circulars, advertisements, or other announcements calculated to deceive the public and pass off defendant’s goods or business as the goods or business of plaintiff constitute unfair competition and will be enjoined.” (38 Cyc. 846.) Whether or not a defendant has been guilty of unfair competition is always a question of fact. Bach case must depend upon its particular circumstances, and the facts of one case are little or no guide to the determination of another. (38 Cyc. 779; Reddaway v. Banham, 13 R. P. C. 218, 233; 65 L. J. Q. B. 381, 391.)

The interlocutory order of injunction issued by the Superior Court, which is in the exact language as recommended by the master, is a broad one. It enjoins the defendant, Clark J. Herringshaw, his agents, servants, etc., until the further order of the court, (1) “from using or employing in connection with the advertisement, publication, offering for sale or sale of any publication, not being the genuine publication of complainant, the words ‘Chicago Blue Book,’ or ‘Blue Book of Chicago Biography,’ or any like words or names, whether accompanied by other words or not”; and (2) “from using or employing in connection with the advertisement, publication, offering for sale or sale of any publication, not being the genuine publication of complainant, the words ‘Blue Book,’ without clearly distinguishing the same from the publication of complainant so as unmistakably to indicate that the same is the publication of the defendant and not the publication of the complainant”; and (3) “from using any name or names, device, artifice or contrivance which may be calculated to induce the belief that any publication not complainant’s is in fact complainant’s.”

There is attached to the transcript of the record before us a copy of complainant’s book, entitled on the back of the cover “Chicago Blue Book, 1912,” and also a copy of defendant’s book, entitled on the back of the cover “Herringshaw’s City Blue-Book of Biography. Chicago Men of 1913.” Upon examination we find the books to be dissimilar in appearance, size and contents. There is also contained in the transcript of the record a sample copy of the circular, or subscription blank, used by the complainant at and prior to the time of the commencement of the present suit, having at the top the words “The Blue Book” printed in large type; also a copy of the circular, or subscription blank, used by defendant at the time of the commencement of this suit, having at the top the words “ Herringshaw’s City Blue Book,” printed in large type, and immediately underneath the words “of Chicago Biography,” printed in smaller type; also a copy of the circular, or subscription blank, used by defendant at the time the proceedings against defendant for contempt were commenced, having at the top the words “ Herringshaw’s City Blue-Book of Biography,”printed in large type, and immediately underneath the words “Chicago Men of 1914” printed in smaller type. The master, in his report recommending that an injunction issue, found substantially that an unwary person receiving the circular of defendant, first above mentioned, would be misled into thinking that the circular was an advertisement of complainant’s publication, or a request for a subscription to complainant’s book, and in his subsequent report on the petition of complainant to punish defendant for contempt he found to the same effect concerning defendant’s circular last above mentioned. To these findings of fact we cannot agree. We do not think that even an unwary person would be likely to be so misled or deceived. There are many noticeable differences in the circulars, both in form and substance. Furthermore, the affidavits presented by complainant to sustain the point that defendant’s circulars are so similar to the circular of complainant as to deceive the public contain mere expressions of opinion. They do not state facts from which such a conclusion may be reached. The affidavits of J. P. Underwood, Finley Barrell, A. D. White and J. Q. Williams, much relied upon by complainant, show on their face that these parties were not actually deceived, for the reason that each party, upon receiving one of defendant’s circulars immediately communicated with complainant either by letter or telephone. And it was stated to us on oral argument by counsel for complainant that there was no proof in the record to the effect that any person had actually contracted to purchase,'or had purchased, defendant’s book thinking that he was purchasing complainant’s book.

It was alleged in complainant’s bill that the words, contained in the title and advertisements of complainant’s publication, “Chicago Blue Book” and “The Blue Book,” had acquired and possessed a distinct secondary meaning, and to dealers in books and 'users of books were understood to refer exclusively to complainant’s publication. In speaking of this doctrine of secondary meaning it is said (38 Cyc. 769): “Words or names which have a primary meaning of their own, * * * and which are not capable of exclusive appropriation as a trade-mark, may nevertheless'by long use in connection with the goods or business of a particular trader come to be understood by the public as designating the goods or business of that particular trader. Such words have both a primary and secondary meaning. In their primary descriptive sense, they are publici juris, and all the world may use them, but they must be used in such a way as not to falsely convey the. secondary meaning, for this would constitute unfair competition. * * * In all this class of cases where the word, name, or other mark or device is primarily publici juris, the right to relief depends upon the proof. If plaintiff proves that the name or word has been so exclusively identified with his goods or business as to have acquired a secondary meaning, so as to indicate his goods or business and Ms alone, he is entitled to relief against another’s deceptive use of such terms. If he fails in such proof, he is not entitled to relief.”

In view of the affidavit of Thomas W. Herringshaw, and exhibits thereto attached, as to the number of “Blue Books” published in Chicago and elsewhere, and in view of all other facts and circumstances as disclosed by the other affidavits and exhibits before us, we do not think that it was shown .that the words “Chicago Blue Book” or “The Blue Book” had been so exclusively identified with complainant’s publication as to indicate its publication alone, or that it was shown that the defendant was guilty of attempting to pass off upon the public his publication as and for complainant’s publication. We are therefore of the opinion that the Superior Court erred in denying defendant’s motion to dissolve the preliminary injunction.

In the order of March 11, 1914, appealed from, the court, in addition to denying defendant’s motion to dissolve said injunction, adjudged that defendant was guilty of contempt for violating the injunction and that defendant “pay into court for the benefit of the complainant, within 10 days * * * a fine in the sum of $200.” The court erred in imposing a fine upon defendant for the benefit of complainant. Barnes & Co. v. Typographical Union, 232 Ill. 402, 411; Rothschild & Co. v. Steger Piano Co., 256 Ill. 196, 205.

The interlocutory order of March 11, 1914, is reversed.

Reversed.


author: Mr. Justice Carnes

text:
    Henry O. Forrest, Appellee, v. Roper Furniture Company, Appellant.
    Gen. No. 5,846.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1913.

      Certiorari allowed by Supreme Court.
    Affirmed.
    Opinion filed April 15, 1914.
    Rehearing denied May 21, 1914.
    Statement of the Case.
    Action by Henry 0. Forrest against Roper Furniture Company to recover for an injury to his right eye while in the defendant’s employ. The injury was alleged to have been caused by defendant’s violation of section 1 of the Act of 1910, Hurd’s R. S. 1911, p. 1128, J. & A. ft 5386, which provides: “That all power driven machinery including all saws * * shall be so located wherever possible as not to be dangerous to employes or shall be properly inclosed, fenced, or otherwise protected.” Though stipulated to be under the Workmen’s Compensation Act of 1912, plaintiff claims the right to maintain this action under the provisions of section 3 of that Act, Hurd’s B. S. 1911, p. 1137, J. & A. 5451, which provides: “That when the injury to the employe was caused by the intentional omission of the employer, to comply with statutory safety regulations, nothing in this act shall affect the civil liability of the employer.”
    Abstract of the Decision.
    1. Master and servant, § 701

      -—when evidence shows injury resulted in loss of sight of an eye. In an action by an employee for the loss of the sight of his eye alleged to have been caused by a splinter thrown from unguarded saw machinery, where the defense was that the loss of sight resulted from an old injury and not from the accident complained of. Evidence held sufficient to show an injury at the time and in the manner charged by plaintiff which resulted in the loss of sight of plaintiff’s eye perhaps because of a weakened condition produced by the old injury.
    2. Damages, § 45*—effect on recovery where injury resulted in aggravating former disease. The fact that a personal injury received resulted in aggravating a former -disease and would not have been of so much consequence in the absence of that disease, affects only the question of damages.
    3. Master and servant, § Tl^-^when direction of verdict not warranted. In an action by an employe for the loss of sight of an eye alleged to have been caused by a splinter thrown from unguarded saw machine, where it appeared that the eye had been formerly injured, held that the fact that plaintiff’s evidence did not show he could see with that eye immediately before the accident did not warrant a direction of a verdict for defendant, where plaintiff testified he could see with his eye before the accident and offered proof showing that a few months before he did work with the other eye bandaged, since in such case the jury would be warranted in presuming from his testimony that his ability to see with his eye continued up to the time of the accident.

      From a judgment entered on a verdict for plaintiff for two thousand five hundred dollars, defendant appeals.
    Trusdell, Smith & Leech, for appellant.
    John E. Erwin, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

4. Master and servant, § 800 —when instruction not erroneous as omitting element of employer’s knowledge of condition of mar-chine, In an action by an employee to recover for the loss of an eye resulting from failure of the employer to guard saw machinery as required by section 1 of the Act of 1910, J. & A. 1f 5386, where the' right to maintain the action was based on the proviso to section 3 of the Workmen’s Compensation Act of 1912, held that an instruction given for plaintiff was not objectionable for the reason that it omitted the element of defendant’s knowledge of the condition of the machine, where it contained the phrase “intentionally omitted,” since the phrase would imply knowledge of the defect as well as the duty.

5. Master and servant, § 98*—statute relating to guarding of saw machinery construed. Splinters thrown from a saw driven by machinery held to be a danger which an employer is required to guard against under the provisions of section 1 of the Act of 1910, Hurd’s R. S. 1911, p. ,1128, J. & A. If 5386.

6. Master and servant, § 620*—admissibility of evidence. In an action by an employee for personal injury resulting from the failure of the employer to guard daw machinery as required by section 1 of the Act of 1910, Hurd’s R. S. 1911, p. 1128, J. & A. IT 5386, testimony offered by plaintiff to show that there were guards in use or on the market that were practicable to prevent the dangers, held competent.

7. Appeal and error, § 1514*—when remarks of counsel not reversible error. In a suit by an employee to recover, for injuries, the fact that counsel for plaintiff in cross-examination of witnesses called attention to the fact that the suit was defended by an insurance company, held not reversible error where an officer of the defendant previously testified without objection that he notified the insurance company of the accident.

8. Master and servant, § 833*—when rejection of evidence as to condition of machinery not reversible error. In an action by an employee for personal injuries caused by the unguarded condition of machinery, rejection of evidence offered by the employer as to the condition of the machine sometime after the accident held not reversible error where the condition of the machine at the time of the accident was known to many and could have been readily shown.

9. Appeal and error, § 1100*—matters which should be raised in first brief. The point that damages are excessive to he relied upon should be made in the first brief and not in the reply brief.


text:
    The Woodlawn Social Entertainment Association, Appellee, v. John W. Anderson, Appellant.
    Gen. No. 5,891.
    1. Corporations, § 17

      —effect of failure to file certificate of incorporation for record. Failure of a corporation to file its final certificate for record in the county of its principal place of business does not deprive it of the right to acquire and hold property, and if such failure be the only neglect of the corporation to comply with the law, it is a corporation de facto and its existence cannot be attacked collaterally.
    2. Corporations, § 34*—right to question existence. A private individual cannot question the legal existence of a de facto corporation.
    3. Corporations, § 518*—when rejection of evidence of cancellar tion of charter not prejudicial. In an action by a corporation, where a plea of nul tiel corporation was filed, rejection of the certificate of cancellation of plaintiff’s charter by the Secretary of State offered to show nonuser, held not prejudicial where it was clear that the corporation did use its franchise and acquired property and dealt with the same up to the time of the trial, and there was no controversy in the evidence received or suggested by the evidence offered on that question.
    4. Forcible entry and detainer, § 77*—when evidence of conveyances under which defendant claimed title inadmissible. In an action of forcible detainer to recover possession of a portion of a building, evidence of conveyances of the entire building under which defendant claimed title to the premises, held properly refused where defendant was charged with record notice of plaintiff’s title and also actual notice of the extent of plaintiff’s rights in the property.
    5. Corporations, § 518*—when court may instruct jury that corporation is de facto. In an action brought by a corporation where a plea of nul tiel corporation was filed, action of court in instructing the jury that the plaintiff was a de facto corporation, held
      not error where the evidence, with all its fair inferences, would lead to no other conclusion than that it was a corporation de facto.

    6. Corporations, § 481

      —when defense of ultra vires acts immaterial. The fact that a corporation not organized for pecuniary profit issued stock to persons who had made voluntary donations to invest in a building for its use, and that it had to some extent used such property for purposes only authorized by corporations for pecuniary profit, held not material as a defense in an action of forcible entry and detainer brought by the corporation to recover possession of the property.
    Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Rehearing denied May 21, 1914.
    Nellie B. Kessler, Morris & Morris and O. F. Morgan, for appellant.
    J. W. Kern, Frank Harry and C. G. Hirschi, for appellee.

      gee Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number*

      See Illinois Notes Digest, V'ols XI to X\ and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

A complaint in forcible entry and detainer was filed in the Circuit Court by appellee, The Woodland Social Entertainment Association, June 24, 1912, in which it avers it is a corporation organized under the laws of the State of Illinois, and charges appellant, John W. Anderson (and others afterwards dismissed from the case), with the forcible entry and detainer of a stairway and the second floor of a building in the Village of Woodland, Illinois, particularly described. Defendants pleaded: (1) Not guilty; (2) nul tiel corporation; (3) failure to record a certificate of incorporation in the office of the recorder of deeds, in the county of Iroquois, the corporation’s principal place of business. A demurrer to the third plea was sustained, the defendants stood by their plea and the case proceeded to a jury trial resulting in a verdict and judgment for the plaintiff, from which this appeal is prosecuted.

It appears from the evidence that a certificate of organization was issued to appellee as a corporation not for pecuniary profit, by the Secretary of State April 17, 1891, in -accordance with the provision of our Corporation Act. (J. & A. f[ 2447.) Every step necessary to a complete organization was taken except the recording of the certificate in the recorder’s office of Iroquois county. The object for which it was formed as recited in its charter was: ‘For social entertainment ; ’ ’ there was a provision that the management be vested in a board of five directors to be elected by the Association; the directors for the first year were named in the charter. The corporation proceeded to make by-laws and appoint a committee to ascertain the cost of a building, and in May, 1891, voted to build the upper story of the building now in controversy, and afterwards built it and by a written instrument under seal duly recorded December 30,1891, contracted with one Zernpel, the owner of the premises, as to the rights of the parties therein, reciting that each party had paid one-half of the cost of the foundation, roof and fire walls; and that the lower story should be used and controlled by the owner of the premises, except the stairway from the ground to the floor of the upper story, and the second story together with said stairway should be owned and controlled by appellee for the period of ninety-nine years; each party to share equally in keeping the roof in repair, and each party to pay taxes on its part of the building. The members of the Association issued to themselves shares of stock, and in the management of its affairs voted in accordance with their stock holdings, and by assessment of the stock raised a fund of about one thousand, eight hundred dollars which they used in paying for building and furnishing the second story as a hall. They proceeded to use the hall, renting it for certain nights of the week to the Modem Woodmen and at other times to the Sons of Veterans and again for various entertainments, and at one time for school purposes, acquiring’ some funds from those sources; and at a meeting on January 6,1894, a small dividend was ordered, and then and afterwards there was distributed in dividends among the members of the Association in proportion to their stock holdings a few hundred dollars.

For about nine years, or up to October 1,1900, meetings were held, officers elected and agents appointed in the ordinary manner of conducting the affairs of such associations. Appellant had some connection with the business, acted as secretary of a meeting November 14, 1891, and at a meeting December 12, 1891, offered a resolution under which the committee to let the hall were instructed as to the manner of leasing, and at a meeting May 14, 1892, he was appointed on a committee of three to rent the hall for the coming year. It appears from the record of a meeting of November 26, 1891, that there were 159 shares of stock outstanding owned by twelve persons, their holdings ranging from one to thirty-one shares each.

The Modern Woodmen used the hall as tenants of appellee up to the time possession was taken by appellant. That society had a janitor who was also employed by appellee. He had a key to the hall and a member of the Association also had a key. There seems to have been no election of directors or officers after October 1, 1900, but rent was collected and expenses paid, and the balance from time to time distributed among the stockholders, either by officers elected at that time or by one or more of the principal stockholders who assumed to act for the Association.

In April, 1912, appellant got possession of the premises. There is much evidence as to the way in which he did it, but no question is made that he did take possession and .withhold it from appellee. He offered in evidence a certificate of cancellation of appellee’s charter by the Secretary of State for failure to make annual report and pay the fee of one dollar as provided by act of our legislature of 1901. This certificate was dated July 1, 1902. He also offered the record of five warranty deeds of the property beginning with Zempel, the owner, and ending with deed to Peterson June 10, 1908, in each of which this lease was recited, then three warranty deeds beginning with Peterson and ending in deed to appellant recorded May 14, 1912, which deeds described the entire property with no mention of the lease. The .court sustained objections to each of these items of evidence offered by appellant on the ground that they were not pertinent to the issues.

Appellant was. chargeable with notice of the record title of appellee. Appellee’s possession of the premises by its tenant, the Modern Woodmen, from whose janitor appellant obtained the key to get into the building, was also notice of whatever rights it had in the premises; and appellant also knew from his former connection with appellee the nature and extent of its rights in the property. If appellee had a sufficient organization as a corporation to own and control this property, there can be little further question in the case.

The court in sustaining the demurrer to the third plea, in effect, held that the failure of appellee to file its final certificate for record in Iroquois county was immaterial. The law is well settled in this State that such failure does not deprive the corporation of the right to acquire and hold property, and if such failure be the only neglect of the corporation to comply with the law, that it became a corporation de facto and its existence cannot be questioned collaterally. Bushnell v. Consolidated Ice Mach. Co., 138 Ill. 67; Gade v. Forest Glen Brick & Tile Co., 165 Ill. 367; Loverin v. McLaughlin, 161 Ill. 417; Marshall v. Keach, 227 Ill. 35. It is true there must be a law under which such corporation might be lawfully created together with user under such law (American Loan & Trust Co. v. Minnesota & N. W. R. Co., 157 Ill. 641); but there was in this case such a law and such user. A private individual cannot question the legal existence of a de facto corporation (Illinois State Trust Co. v. St. Louis, I. M. & S. Ry. Co., 208 Ill. 419; Thomas v. South Side El. R. Co., 218 Ill. 571; Foster v. Hip Lung & Co., 243 Ill. 163.

We have no doubt that appellee was a de facto corporation with power to acquire and hold property. Accurately speaking, appellee’s property was not the building itself but the right of dominion over it, which certainly involved the right to expel intruders.

We are of the opinion that the court did not err in excluding evidence of the cancellation by the Secretary of State. If this had been a proceeding by the People to forfeit the charter it would have been competent and prima facie evidence of nonuser (People v. Rose, 207 Ill. 352); but it does not of itself work a forfeiture of the corporation’s charter (Id. and Gilmer Creamery Ass’n v. Quentin, 142 Ill. App. 448). It is argued by appellant that he had the right in support of his plea of mil tiel corporation to show nonuser, or that it was incumbent on appellee to show user to maintain its standing as a de facto corporation, and that this certificate was competent on that issue. This suggestion would require consideration if the evidence received and offered left any question as to-user; but it is clear that appellee did use its franchise, acquire property and deal with that property, and continued so to do up to the time of the trial, and there is no controversy in the evidence received, or suggested by the evidence offered, on that question; therefore appellant was not harmed by the rejection of evidence which in this case clearly would not have sustained a finding of nonuser.

We cannot see that the court erred in rejecting the evidence of the conveyances under which appellant claimed title to the premises; they had no force or effect in support of his claim of right to take and keep possession of the property.

It is claimed that the court erred in instructing the jury that appellee was a corporation de facto, taking from the jury the decision of the issue presented by the plea of nul tiel corporation, which it is said was a question of fact to be determined by the jury. If it is a question of fact for the jury, which appellee denies, the same rule applies here as in other cases where questions of fact are raised by issues joined, they are for the jury to determine; but where the evidence, with all its fair inferences, leads to only one conclusion, it then becomes the duty of the court to instruct the jury to that effect; and we see nothing in this record to lead to any other conclusion than that appellee was a corporation de facto.

It is contended by appellant that appellee had departed from its charter right in issuing stock and acquiring property which it used for profit. However that may be, a reference to the cases heretofore cited will show that it is not material in this case. The fact that a corporation may perform ultra vires acts does not authorize individuals to seize and hold its property. Appellee had the right to acquire property for the purpose for which it was organized, that involved the right to in some way acquire the money to pay for it, which it might do by voluntary donations of people so disposed, and we see nothing objectionable in issuing so-called stock to such people in proportion to their donations, which is practically what was done in this case; and having acquired a hall we presume it was not ultra vires for it to permit its occupancy at times for purposes similar to that for which it was organized. But it is not a subject of inquiry here whether appellee did or did not, to some extent, use its property for purposes only authorized for corporations for pecuniary profit.

We are of the opinion that the court committed no error of which appellant can complain.

The judgment is affirmed.

!'Affirmed.


text:
    Elmer E. Fitzkee, Appellant, v. Louis A. Hoeflin, Appellee.
    Gen. No. 5,900.
    1. Appeal and eebob, § 1682

      —when error in ruling on demurrer waived. A defendant by pleading to and answering a bill after his demurrer thereto has been overruled waives the right to question the ruling on the demurrer.
    2. Cancellation oe insteuments, § 29*—sufficiency of Mil. In an action by a vendor for the cancellation of a contract for the sale of land on the ground that the actual contract was that the land should be deeded subject to a certain right of way and that the purported contract did not contain such provision, and that it was not delivered with the intent on the part of either party to be the contractual relation between them, held that a demurrer thereto that the complainant under either his special or general prayer for relief had no remedy against the defendant which a court of equity would enforce was properly overruled.
    3. Fbauds, statute oe, § 82*—persons entitled to avail of. A party cannot be permitted to use the statute of frauds and perjuries to harvest the fruit of his fraud.
    4. Vendor and pubchaseb, § 94*—grounds for cancellation. Because facts do not furnish grounds for a reformation of a land contract, it does not follow that such facts may not furnish grounds for relief by way of cancellation.
    5. Vendor and pubchaseb, § 94*—grounds for rescission of contract. A vendor may be entitled to a rescission of a contract under facts that naturally call for a reformation, if the purchaser refuses to abide by the true original agreement.
    6. "Vendob and purchaser, § 94

      —grounds of relief when delivery of contract procured by fraud. Where parties entered into a land contract and the instrument omitted a part of the actual agreement that the lands were to be conveyed subject to a certain right of way, and when the instrument was delivered to the purchaser the vendor called his attention to the omission but the purchaser said, “I understand that, but it will be all right,” that he had to catch a train and could not wait to write another contract, held that the vendor might be entitled to relief from the terms of the written contract on the ground that there was no delivery of the contract, or on the ground that there was fraud in procuring its delivery.
    7. Contracts, § 57*—what essential to constitute a delivery. It is necessary that an instrument should be understood by the parties to be complete and ready for delivery, in order to have a mere placing it in the hands of the grantee construed into a delivery.
    8. Evidence, § 344*—when parol evidence admissible to show nondelivery of instrument. While a written contract cannot be changed by evidence of a prior or contemporaneous parol agreement, whether such contract was delivered must usually be determined from a consideration of such evidence.
    9. Contracts, § 58*—when procurement of delivery will be presumed fraudulent. Where a person induces the delivery of a contract to him by promising that an omission of a provision therein would not be taken advantage of, and he thereafter seeks to enforce the terms of the written contract, a presumption of fraudulent intent at the time of the delivery of the instrument may be indulged in a suit to rescind the contract.
    10. Cancellation op instruments, § 25*—jurisdiction of court of equity. A court of equity has jurisdiction to cancel a contract on the ground of fraud even in cases where the law affords relief, and this especially where the court properly took jurisdiction on a bill to reform a contract and there was a full hearing and no controversy as to the facts which would justify relief of cancellation.
    11. Vendor and purchaser, § 101*—condition precedent to rescission of land contract. A vendor seeking the cancellation of a land contract, not within the statute of frauds, must offer to return to the purchaser the amount received by him as an advance payment on the contract.

      Appeal from the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 15, 1914.
    Rehearing denied May 21, 1914.
    N. F. Anderson and Henry Waterman, for appellant.
    John B. King, Clarence W. Heyland and Carl A. Melin, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yole XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, Elmer E. Fitzkee, filed a bill in chancery to reform a written contract between himself and appellee, Louis A. Hoeflin, and to enjoin a suit at law that had been brought by Hoeflin on that contract. He afterwards amended his bill praying that the contract be cancelled instead of reformed, and the case resulting in the dismissal of his bill for want of equity he prosecuted this appeal.

In the course of the proceeding there was a reference to the master in chancery and he reported the facts. The evidence is not shown in the record filed here but each party adopts the statement of facts made by the master and asks us to adopt it in our consideration of the case. It appears that for some months prior to December 10, 1910, appellant had, through agents, been offering for sale a half section of land in Henry county, Hlinois, on which there was a drainage ditch large enough with its spoil banks to occupy at least eighteen acres of the half section and through which ditch flowed the main channel of a river. The drainage corporation had some right or title in the land, the exact nature of which is not disclosed, securing a right of way for the ditch. The proposed sale of the land was to be made subject to the right and title of the drainage corporation.

Appellee lived in Tazewell county, Illinois, and had for some time been aiding appellant’s agents in the effort to find a purchaser for the land, and was familiar with the physical condition of the property and with the title as affected by this drainage proposition, and knew that title to the land could only be made subject to the rights of the drainage corporation.

On December 10, 1910, he appeared with his attorney at the office of appellant’s agents in Henry county, and there orally arranged with them for the purchase by himself of this land, subject to said right of way, for $22,300; $1,000 of the purchase price to be paid in advance and the balance in deferred payments, with deed to be executed and possession of the premises given on or before the first day of the following March. Appellant was then called in, and appellee and his attorney wishing to leave town on a train that was soon due, the attorney drafted a contract in duplicate setting out the various provisions of the agreement, except that in relation to the right of way, which he omitted, and provided a penalty by way of liquidated damages of $1,000 to be paid by either party defaulting ; appellee paid the $1,000, and each of them signed and acknowledged the contract. There was some haste in the matter, but just before or just after the signing and before the exchange of the papers, and after they had both read the contract, appellant said to appellee in substance: “The right of way is not mentioned in here and it should be there;” and appellee answered in substance: “I understand that, and it will be all right, but we want to catch this train and haven’t time to stay here and write another contract.” Each party then took one of the duplicates and they separated.

At the designated time appellant tendered a war^ ranty deed of the premises subject to the drainage right of way, and appellee refused to accept the deed because it was made subject to said right of way and therefore not in compliance with the terms of the contract as written.

Afterwards appellee began an action at law to recover the $1,000 advance payment, and the other sum of $1,000 provided in the contract as liquidated damages for nonperformance. Appellant filed this bill in chancery to enjoin the prosecution of that suit at law, setting up the facts as above stated and praying that the contract be reformed on the ground of fraud and mistake, and for general relief. An answer was filed and the cause referred to the master in chancery to report his conclusions of law and fact. He reported the facts as before stated with his conclusion of law that they did not entitle appellant to a reformation of the contract; this view was adopted by appellant and he amended his bill striking out the averment of mistake by the scrivener in drafting the contract, and adding the averment that the actual contract was, that the land should be deeded subject to said right of way, that the purported contract did not contain that provision, and that said written purported contract was not delivered with the intent on the part of either party that it was to be the contractual relation between the parties; striking out the prayer that the contract be reformed, and substituting the prayer that the written instrument be decreed to be delivered up and cancelled.

The case then stood on the amended bill setting up the facts as above stated and praying that the contract be cancelled and for general relief. Appellee filed a general demurrer to the bill as amended which was overruled. He then filed a plea to the whole bill of the statute of frauds, and took an order that his answer to the original bill stand as an answer to the amended bill. The plea was set down for argument and on hearing was held sufficient to bar the action. A decree was entered to that effect, and also overruling exceptions of appellant to the master’s report, adopting its findings and approving and confirming the report, and finding from the pleadings and evidence that the equities were with appellant, and dismissing the bill at complainant’s costs.

Appellee seeks by cross-error to question the action of the court in overruling his general demurrer to the amended bill. By pleading to and answering the bill after his demurrer was overruled he waived his right to raise that question; but we are of the opinion that the court properly overruled the demurrer. It raised the question whether the complainant under either his special or general prayer for relief had any remedy against the defendant that he could enforce in a court of equity. Suppose the error had been in describing the whole section of land instead of the half section, and the writings had been exchanged as here, on the promise of the grantee that he would not take advantage of the error. Is our system of jurisprudence such that the party inducing delivery by means of his promise could obtain aid from the court to harvest the fruit of his fraud? We think not, and we are also of the opinion that he can not be permitted to do it by using as an instrument the statute of frauds and perjuries so long ago enacted and for so many years used for the purpose of preventing frauds.

The master found as matter of law that the writing could not be reformed because, as he finds, the scrivener made no mistake, that is, he was not told by either party to put the omitted provision in the contract, and each party knew when he signed the contract, or at least before the papers were exchanged, that the provision was omitted. He expressly bases his finding of law on the decision of the Court in Smith v. Rust, 112 Ill. App. 84. That is a case much like this on the facts claimed, but it was decided by the court on the ground that the facts were not satisfactorily established by the proof, and the discussion of principles of law applicable to the facts claimed is dicta, and apparently dicta that only the writer of the opinion was willing to accept as the law, for it is expressly stated in the opinion that it is the view of the writer of the opinion. If it be conceded that the master was correct in his conclusion that the facts did not furnish ground for reformation of the contract, as both parties in their argument here do concede, and we express no opinion on that question,, still it does not follow that the facts may not furnish ground for equitable relief by way of cancellation of the contract, a remedy which equity courts alone are able to confer (6 Cyc. 286); and one which is exercised when the transaction is different with respect to its subject-matter or terms from that which was intended (Id., and Pomeroy Eq. Jur. sec. 870); and the vendor may be entitled to a rescission of the contract under facts that naturally call for reformation if the purchaser refuses to abide by the original true agreement (39 Cyc. 1248; Cullison v. Connor, 222 Ill. 135).

Appellant may be entitled to relief on two different views of the .case: First, that there was no delivery of the contract: Suppose the papers as drafted had located the land in the wrong county, fixed the time for delivery of the deed and possession in May instead of March, and made the consideration $2,200 instead of $22,300,' and the parties had noticed these mistakes and mentioned them before delivery of the papers, and agreed that the contract was so erroneous and incomplete as to be worthless as a written contract, but had concluded to each keep a copy as a memorandum of the truth it did contain and dispense entirely with the written agreement, and each trust the other to act in good faith in carrying out what they had orally promised to do the next March by way of conveying and paying for the land. "We suppose these facts being admitted there would be no difficulty in determining that there was no existing written contract between the parties, notwithstanding each had in his possession an apparently complete and perfect contract signed and acknowledged by both parties. This case only differs from the one supposed in the magnitude of the error and the clearness of the language used when the papers were exchanged. It seems to us appellee should not he heard to complain of that construction of what the parties said at the time of the exchange of these writings, and that a court of equity should adopt any reasonable meaning of the words used, necessary to prevent a party from invoking a- technical rule of law to enable him to perpetrate wrong and injustice on another. It is necessary that the instrument should be understood by the parties to be complete and ready for delivery, in order to have a mere placing it in the hands of the grantee construed into a delivery. Jordan v. Davis, 108 Ill. 336. While a written contract cannot be changed by evidence of a prior or contemporaneous parol agreement, whether that contract was delivered must usually be determined from a consideration of parol evidence, and the mere placing of the writing in the hands of one of the parties does not of itself necessarily constitute a delivery; the inquiry is, what was the intention of the parties at the time? Wilson v. Wilson, 158 Ill. 567.

The other view of the case is, that the contract was delivered with, the express understanding and agreement of the parties that it was incomplete, and such delivery was induced by appellee for his own accommodation to enable him to take a train for home without waiting for its completion, and to induce the delivery he expressly promised that he would treat it as though the omitted matter was inserted. It certainly outrages every sense of justice that he should be permitted to take advantage of the confidence reposed in him. If he in this way induced the delivery •of the paper intending to take advantage of the omission of the right of way provision, he was guilty of fraud in inducing and procuring ¡the delivery of the instrument; and it is a legitimate inference from the admitted facts that he did then intend exactly what he afterwards attempted to do. The presumption of fraudulent intent at the time of the execution of a deed has been repeatedly indulged in suits for rescission of conveyances of land in consideration of future support; the conduct of the grantee after the execution of the contract has been held sufficient evidence of a fraudulent intent at the time of the execution. McClelland v. McClelland, 176 Ill. 83, and cases there cited and discussed. It would seem the presumption might as well be indulged in this case as in those cases and with the same equitable results.

Appellant urges as a ground of equity jurisdiction that the contract is a cloud on his title. It is answered that there is no allegation or proof that the contract is recorded in the county where the land is situated, therefore on the authority of Howe v. Hutchison, 105 Ill. 501, and Parker v. Shannon, 121 Ill. 452, there is no cloud on his title. The authorities on that subject are collected and reviewed in Allott v. American Strawboard Co., 237 Ill. 55. Belief may be granted under the rule adopted in this State in some cases where the instrument sought to be cancelled is not of record in the office of the Becorder of Deeds; but the facts of this case may not bring it within that ground of equity jurisdiction; if not we are of the opinion that the court has jurisdiction on the ground of fraud, in which it has concurrent jurisdiction with courts of law, even in cases where the law affords relief; and while it will generally decline to act where the legal remedy is in all respects adequate, it may and sometimes does grant relief in such cases. 16 Cyc. 81.

If the contract be treated as not delivered, quite likely "that defense could be made in the suit at law sought to be enjoined. But even in that view of the case it is true equity properly took jurisdiction on bill filed to reform the contract, there has been a full hearing and there is left no controversy whatever as to the facts, no issue of fact to be passed on by a jury, nothing but a question of law to be decided by the court. There can hardly be a rule of law or practice requiring the chancellor to dismiss the bill and then, sitting as a judge on the common-law side of the same court, determine the issue of law presented. We do not hold that the remedy at law is adequate, it seems to us in any view of the case a court of chancery can better determine the controversy; but, even if that be not so, the court having obtained jurisdiction of the parties and satisfactorily settled all disputed facts, should proceed to a final disposition of the case. Bollnow v. Roach, 210 Ill. 365.

Appellant in amending his bill prayed for cancellation, instead of reformation, of the contract, and did not offer to return the $1,000 he had received as advance payment on the contract that he seeks to cancel. He relies in his argument on holdings that a party who makes a part payment on a contract, not enforceable because of the statute of frauds, cannot refuse to fulfil the contract and recover back the money so paid. That may be true, but we are holding this contract not within the statute, and it is to be cancelled on the application of appellant. The authorities are numerous that as a condition of release he must return the amount .received with legal interest; no authority to the contrary is cited.

A temporary injunction was issued at the beginning of this suit and has been kept in «force pending the outcome of this appeal. Some questions are argued touching the granting and refusing to dissolve the injunction, but they are now unimportant in the view we have taken of the case.

The decree is reversed and the cause remanded with directions to enter a decree providing that upon the payment by appellant to appellee, or into court for appellee, of the said sum of $1,000 with interest at the rate of five per cent, per annum from December 10, 1910, within thirty days from the entering of said decree said writing shall be delivered up and cancelled, and the injunction made perpetual and each party to pay one-half the taxable costs, and that upon failure to make such payment within the time limited the bill shall be dismissed, at complainant’s cost.

Reversed and remanded with directions.


author: Mr. Justice Dibell

text:
    Burdella D. Deach, Appellant, v. Woolner Distilling Company, Appellee.
    Gen. No. 5,852.
    1. Negligence, § 24

      —duty of owner of premises to invitees. Where one is upon the premises of another by the invitation, express or implied, of the owner, such owner owes the visitor a duty to exercise ordinary care to keep the premises in reasonably safe condition, but this rule is not applicable to a visitor on the premises by implied invitation unless he is there for a purpose connected with the business in which the owner is engaged or which he permits to be carried on at that place.
    2. Negligence, § 24*—duty of owner of premises to licensees. The owner owes no duty to one who is upon his premises as a mere licensee, and such mere licensee, if injured while upon the premises, cannot recover damages from the owner without proof that the owner knowingly and wilfully injured him.
    3. Negligence, § 204*—when direction of verdict improper. Where a teacher and a number of students obtained permission to call and visit a distillery and upon calling at the office of the distillery were placed in charge of a guide, and while the party was" standing on a platform inspecting the plant the platform gave way and a member of the party was injured, held in an action against the distillery company for the injuries alleging that the party was upon the platform at the express invitation of a guide, that plaintiff’s evidence was sufficient to require a submission to the jury of the questions whether the action and conduct of the guide was binding on the defendant and whether it made the party express invitees, and whether the plaintiff exercised due care, and that the court erred in directing a verdict for defendant.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Rehearing denied May 21, 1914.
    Kirk & Shurtleff, for appellant.
    Weil & Bartley, Quinn, Quinn & McGrath, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

W. F. Raymond, a teacher in the Bradley Polytechnic Institute at Peoria, applied to Samuel Woolner, Junior, president of the Woolner Distilling Company, for permission for himself and some of the students of the Institute to visit the distillery operated by said Company at Peoria, and obtained such permission, and afterwards advised said president that said students desired to make said visit on Saturday, April 13, 1912, and the president told him they could come at that time. Raymond went at the time appointed with about fifty students, about two-fifths of whom were young men and the rest young women. Raymond went into the distillery office and saw the president and told him he had brought the students down to go through the distillery, and the president placed them in charge of a man who took them through certain portions of the distillery, and a chemist in the employ of the distillery company then went with the party. While they were upon a certain platform, inspecting the upper surface of certain vats, the floor gave way beneath the party and many of them were precipitated to the cement floor at least seventeen feet below. Burdella D. Deach, then twenty-three years old, one of said students, who was studying chemistry and preparing to teach domestic science, was a member of said party. She was very seriously injured, and she brought this suit against the Woolner Distilling Company to recover for said injuries. The declaration was very lengthy and we think it enough to say of it that it is sufficient to support a judgment, if the facts give her a cause of action. At the first trial a juror was withdrawn by agreement. At a second trial, at the close of all the evidence, the court directed a verdict for defendant. Such verdict was rendered, a motion for a new trial was denied, and defendant had judgment and plaintiff below appeals.

If one is upon the premises of another by the invitation, express or implied, of the owner, such owner owes the visitor a duty to exercise ordinary care to keep the premises in a reasonably safe condition. The owner owes no such duty to one who is upon the premises as a mere licensee, and such mere licensee, if injured while upon said premises, cannot recover damages from the owner without proof that the owner knowingly and wilfully injured him. Gibson v. Leonard, 143 Ill. 182; Pauckner v. Wakem, 231 Ill. 276; Purtell v. Philadelphia & I. Coal & Iron Co., 256 Ill. 110. The implied invitation referred to in the foregoing rule is where the visitor is there for a purpose connected with the business in which the owner of the premises is engaged or which he permits to be carried on at that place. Illinois Cent. R. Co. v. Hopkins, 200 Ill. 122; Pauckner v. Wakem, supra; Purtell v. Philadelphia & I. Coal & Iron Co., supra. This qualification that, to make the owner liable to one who is present only by an implied invitation, there must be some mutuality of interest in the subject to which the owner’s business relates, has apparently been omitted from the statement of the rule in Calvert v. Springfield Elec. Light & Power Co., 231 Ill. 290; Devaney v. Otis Elevator Co., 251 Ill. 28; McDermott v. Burke, 256 Ill. 401; Indiana B. & W. Ry. Co. v. Barnhart, 115 Ind. 399 ; and 2 Cooley on Torts (3rd Ed.) 1259; upon "which authorities appellant relies; yet that qualification is expressly approved in the very recent case of Cunningham v. Toledo, St. L. & W. R. Co., 260 Ill. 589, and for the purpose of this opinion we shall treat it as the law of this State. If the rule is treated as so qualified, then it is not sufficient that the party was upon the platform by an implied invitation of appellee or its officers or servants. But the declaration avers that the party was upon said platform by the express invitation of the chemist, and that the chemist was an employee of appellee authorized by appellee to guide and conduct the party through that part of the premises. Appellant introduced proof tending to show that the chemist was a highly educated man, in the employ of appellee and in charge of the more important processes connected with the making of whisky, and that, in meeting and conducting the party, he was acting under instructions previously received by him; that he introduced himself to Baymond, and took the lead and charge of the party, and conducted them around to the place where they could see the various processes by which whisky is produced, and that he directed them to go up a certain stairway and out on the platform adjacent to and near the top of eighteen large vats, containing the liquor in various processes of fermentation, and that he called them to congregate about him so that they could see what he pointed'out and hear his explanation, and that the young women of the party did gather around him to the number of twenty-five or thirty and the young men stayed back to give the young women an opportunity to hear the explanations and instructions given by the chemist, and that the chemist then directed them to start for another place and just as they were starting the floor gave way. The proof showed that the chemist had been working there for appellee for at least six years and was upon this platform daily and was familiar with the situation, and that the president of appellee was there very frequently and was familiar with the construction of the platform. Neither Raymond nor appellant had ever been in said distillery before, nor had they ever seen said platform, nor did they have any knowledge as to how it was constructed and supported nor that the regular floor was far below the platform. No negligence can be attributed to either of them in going where the chemist directed them. We are of opinion that the question whether the conduct and language of the chemist was binding upon appellee and whether it made the party express invitees under the rules of law above stated, and created an obligation on the part of appellee to exercise due care for the safety of the party, and whether appellee did exercise such due care, were all questions of fact, upon which appellant had sufficient evidence in support of her position to require the submission of these questions to the jury. The evidence introduced by appellant shows the thickness of the boards and the distance apart of the supports upon which they rested. It tended to show that such boards, so supported, were not sufficient to sustain even one-half the weight then placed upon them, and that the boards had been there for eight years and had been washed in cold water, once each week, and that the boards were a slight distance apart so that the water might pass down through the interstices, and that the action of the water upon such boards in that way for that length of time was calculated to weaken and rot the material; and that there was much carbonic acid gas in the room, and that such gas was heavier than air, and that it passed over and between the boards, and was calculated to have a like effect upon them; and that the breaking of the boards at the time of the accident was a straight break and not a splintered break, and that this indicated that the material had become weakened or rotten. Appellee introduced evidence to contradict much of this proof in relation to the floor and the break, and to show that appellee and its officers were justified in considering that platform, so supported, capable of sustaining a much greater weight than was upon it at this time. But, upon the motion to direct a verdict, the court could not weigh the evidence on these subjects and determine where the preponderance was. It is obvious that the platform was intended to be used only by a very few employees, and whether appellee or its servants did invite and place so large a party thereon, and whether this was negligence, were questions of fact which must in the first instance be submitted to the jury. The court should not have directed a verdict and should have granted a new trial.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.