author: Mr. Justice Baldwin

text:
    Glencoe State Bank, Appellant, v. Edwin R. Cole et al., Appellees.
    Gen. No. 8,358.

      Heard in this court at the May term, 1931.
    Opinion filed February 18, 1932.
    H. c. Rumery and Litchfield & Snyder, for appellant.

      Altheimer & Mayer, for appellee North Shore Bond & Mortgage Co.; Walter B. Smith and George W. Struckmann, of counsel.
    R. B. Webster and Louis P. Miller, for appellee George Park.
   Mr. Justice Baldwin

delivered the opinion of the court.

This was a bill in chancery brought by Glencoe State Bank, hereinafter called “complainant,” to foreclose the lien of a certain trust deed made by Cole and his wife. Various mechanic lien claimants were made defendants, as was also the North Shore Bond and Mortgage Company, hereinafter called “cross complainant,” it being the holder of a trust deed conveying the same premises. The lien claimants filed their answers in the nature of intervening petitions seeking to enforce their liens. The cross complainant filed a cross-bill- seeking to have the lien of its trust deed foreclosed and held superior to that of complainant by reason of certain statements claimed to have been made by officers of complainant and acted upon by cross complainant.

The original cross-bill of cross complainant stated substantially that complainant had agreed to disburse the loan made to Cole so as to cause the erection of thé proposed building, free of mechanic’s liens, and upon the hearing before the master the testimony was that the complainant told the cross complainant that it would make the loan for the building if cross complainant, which already had a first mortgage, would subordinate its lien to this loan to which cross complainant agreed and accordingly withheld its trust deed from record until complainant’s trust deed was filed.

It appears that Cole was' a builder and had made several loans from complainant. In the summer of 1928 he had dealings with cross complainant, as a re-suit of which cross complainant bought for him a lot in Highland Park and took back a purchase money mortgage for its cost. Cole was to obtain a loan and erect a building and he entered into negotiations with complainant for a loan for the purpose of erecting a building on this lot and during the pendency of the negotiations a representative of cross complainant went to the office of complainant and told complainant that he understood complainant was making a loan to Cole for the purpose of erecting á building on this loan and that he wanted to be sure as to the purpose for which the loan was being made, and was informed by an officer of complainant that a loan of $10,000 was being made, or considered, by complainant for the purpose of putting a building on that lot and the officers of complainant asked the representative of cross complainant if it would subordinate its purchase price loan to theirs if the loan was made to put up the building, and the representative of cross complainant stated that it would, and it further appears that cross complainant relied upon this understanding. The loan of $10,000 by complainant to Cole was made and the trust deed securing it, which is now sought to be foreclosed, was executed and placed upon record. Cross complainant withheld from record its trust deed until after complainant’s trust deed had been recorded.

The building was begun, but was not completed. Cole testified that not more than $3,000 of the $10,000 loan was used in the building. It was not denied that he received all the money, but what use he made of it is not disclosed. The mechanics and materialmen, who seek a lien, remain unpaid. Default was made by Cole of interest and taxes and complainant elected to- declare the entire amount due and filed its bill to foreclose and made various lien claimants and the cross complainant defendants; all defendants answered and filed appropriate pleas, a receiver was appointed by the court with authority to complete an unfinished building and he obtained authority to issue and sell receiver’s certificates to the amount of $7,500 and these were sold to complainant and the proceeds were used to complete the building. The order authorizing the certificates provided that they should be a lien upon the premises superior to all other liens.

The cause was referred to the master in chancery and he found that the lien of cross complainant was subordinate to the lien of complainant, and that George Park, one of the lien claimants, had no lien as against incumbrances and purchasers. Other findings with reference to other lienholders in this report are. not material here as the parties have reached an adjustment of those matters and they are not now in question.

Objections were filed to the master’s report and were ordered to stand as exceptions thereto, and upon the hearing before the court the exceptions of George Park and of cross complainant were sustained and a decree was entered finding due the' complainant the sum of $12,497.87 and costs, and ordering a sale of the premises. It found due the cross complainants the sum of $2,699.17 and found its lien to be superior to that of complainant on the ground involved, but subject to that of complainant on the building on said premises. The decree found that George Park had a lien for $1,000 and that other claimants were entitled to liens. The decree found further that various mechanic’s liens were subject to the lien of the receiver’s certificates and to the lien of the trust deeds to the extent of the value of the premises on the date the respective contracts were entered into and reserved for future computation the exact amounts due the various parties.

At the time the court heard the exceptions to the master’s report and rendered his decision thereon, cross complainant asked leave of court to amend its cross-bill to conform to the proof, which leave was granted and no objection made thereto by complainant and shortly thereafter a cross-bill conforming to the proof before the master was filed and among the errors urged by complainant it is claimed that the court erred in allowing the cross-bill to be amended. The facts as shown by the record with reference to the claim of George Park are substantially as follows: On or about August 15, 1928, the owner of the premises involved entered into a contract with Park to install plumbing, gas and sewerage for the price of $1,500, said contract being reduced to writing and is undated. Park proceeded with his work until December 1, 1928 when, without his fault, further work was discontinued by the owner. On January 24, 1929, Park filed his claim for lien basing it upon the contract alleging $1,450 due him and averring completion of the contract. Upon the hearing before the master upon this claim it was claimed that an error had been made in the statement and answer filed thereon and later an intervening petition as amended was filed claiming that the reasonable value of the work performed under the contract to December 1, 1928, was $1,000. The master found that the claim of Parks should be disallowed because his statement was not “certified.” The court, upon hearing the exceptions, overruled the master and allowed the claim in the amount of $1,000.

The complainant prayed an appeal to this court and alleges that the decree is erroneous in its findings as to the relative rights of complainant and cross complainant; that the particular relief given cross complainant is not justified and that the court erred in finding George Park has a lien upon the premises as against complainant.

We shall first take up for consideration the claim for lien by George Park. The complainant contends that his claim was not verified by proper affidavit and that the claim does not state the amount due and is materially false.

The lien law requires claimant to file a statement of claim verified by affidavit. The affidavit in this case begins, “George Park, being first duly sworn, deposes and says, etc.,” and on the line upon which the deponent usually signs is the name “George Crosby” and the jurat “Subscribed and sworn to before me” is signed “George Crosby.” Crosby is the officer before whom the affidavit was sworn. It appears from an inspection of the records that Crosby signed the affidavit and also the jurat. The evidence discloses at page 121 of the record (not abstracted) that a witness was present when the statement of claim was signed and “acknowledged” by claimant. The word “acknowledged” was apparently inadvertently used by the solicitor in his question instead of the word “sworn.”

Objection to the introduction of this statement was made on the ground, among others, that it was not sworn to.

Where an inspection of the document itself presents a doubt as to whether or not it was sworn to by claimant, then it is proper to produce proof aliunde that the statement was in fact sworn to. Cox v. Stern, 170 Ill. 442.

The statute, Cahill’s St. ch. 82, Ü 7 (section 7, chapter 82, Smith-Hurd 1931), provides in substance that the claimant shall file a claim for lien verified by the affidavit of himself, etc.

"An affidavit has been defined to be a written declaration on oath, sworn to by the person making it, before some officer duly authorized by law to administer oaths. 1 Encyclopedia of Pleading and Practice 309; Harris v. Lester, 80 Ill. 307.

The statute does not, and neither do the decisions cited to us upon the question require that the affidavit be “signed”"; the only requirement is that it be sworn to. The jurat in this case states that the affidavit was “subscribed and sworn to, etc.” The statement itself was signed in the appropriate place by George Park, the claimant.

The document was properly admitted in evidence.

It is claimed the statement filed does not state the amount due and that it is materially false.

The statement filed in this case was apparently made out on a printed blank such as is generally used for such purposes, claimant filling in blanks to suit his supposed conditions. Instead of setting up items of the value of material and labor delivered to the owners, he set up that his claim for lien rested upon a contract in the sum of $1,450, and that the contract was completed December 1, 1928, and the answer of claimant in the nature of an intervening petition, filed, followed this theory. On the hearing before the master the following took place, (see record page 117):

“Mr. Webster: If the master please, I just today learned that Mr. Park had not completed the work he was about to do. I filed a claim for lien and in the intervening petition I set up the amount of the contract.
“Master: You wish to amend, is that it!
“Mr. Webster: Yes.
“Master: Go ahead and put in your testimony.”

The claimant then proceeded with his testimony as though the amendment had been made and it was proven that $1,000 worth of material and labor had gone into the building under the contract up to December 1, 1928, when further work was abandoned. Later on an amended intervening petition was filed, setting up that $1,000 worth of work and labor was claimed, etc.

A portion of Cahill’s St. ch. 82, 7 (section 7, chapter 82, Smith-Hurd 1931), provides as follows: “No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien-therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud. ’ ’

It nowhere appears in the record, other than the mere filing of the claim, based upon the contract price of $1,450, whereas (the.contract which was introduced in evidence specified $1,500 (abstract 14), instead of basing the claim upon the. value of the work that had been done up to the time further work was prevented as is provided by section 4 of the Liens Act, Cahill’s St. ch. 82, if 4), that the claimant intended to defraud any interested party.

Our courts have held that, where a claimant under the lien law seeks .to perpetrate a fraud, then his lien shall be denied; but an examination of the cases cited upon this question discloses that the fraud acted upon in those cases arose, not only out of the filing of the claim for a larger amount, but that, upon the hearing, testimony was offered to support such purported claim.

The cases cited by claimant, Christian v. Allee, 104 Ill. App. 177, and Marsh v. Mick, 159 Ill. App. 399, are to be distinguished from this case in that, in each of those cases the respective claimants were found, from the .evidence in the case, to have offered false and perjured testimony, in support of their claims, and that it was deliberately and wilfully made in order to prejudice interested parties and their liens were denied upon that ground and not upon the ground that the lien notice or the .pleadings were in error..

The facts in the instant case do not extend that far in our judgment. We, therefore, hold that the amount due — though a mistaken one based upon an improper premise — was substantially stated and that as soon as the mistake was discovered, i. e., upon the day of the hearing,- an attempt to correct the error was made and tacit consent to do so was given by the officer hearing the testimony and no objection was interposed by the complainant.

It is not contended that the actual work was not done, nor that the materials did not enter into the building, nor that $1,000 was not a reasonable and fair price for such labor and materials. Further, no showing1 is made that complainant was harmed or prejudiced by claimant’s action in the matter. The offer to correct thé statement was made at the hearing, which was still open, and opportunity was afforded complainant to meet such proof as was offered. Hayes v. Hammond, 162 Ill. 133; Kendall v. Fader, 199 Ill. 294; Treloar v. Hamilton, 225 Ill. 102:

We are, therefore, of the opinion that the chancellor decided correctly that Park was entitled to a lien for $1,000 as shown by the proof.

The appellant contends that the court erred in granting cross complainant leave to amend its cross-bill.

It appears from the record that the amendment to the cross-bill was sought by cross complainant at the time its exceptions to the master’s report were heard and decided by the court and leave was given by the court to amend, no objections by complainant being offered. (Abstract 16.)

The statute, Cahill’s St. ch. 22, ft 37 (section 37, chapter 22, Smith-IIurd 1931), grants authority to the courts to permit amendments to bills, etc., upon such terms as the court deems proper so that neither party may be surprised nor unreasonably delayed, and it has been repeatedly held by our courts that parties, before final decrees, may be permitted to amend their pleadings to conform to proofs and that such permission is regarded as an exercise of the sound discretion of the chancellor.

Nothing is shown in this record of any objection by complainant to this action of the court, nor is there any claim that the complainant was thereby surprised or in any manner unreasonably delayed. The action of the court in permitting the cross-bill to be amended before decree is approved. Ackley v. Croucher, 203 Ill. 530, 534; Sanner v. Sanner, 257 Ill. App. 305, 324.

Two cases, Jones v. Kennicott, 83 Ill. 484 and Campbell v. Powers, 139 Ill. 128, were cited by complainant, in its brief, to sustain its contention that the court erred upon this point.

The Jones case was a ne exeat case and the application for permission to amend came after the writ was quashed because the petition failed to allege a material averment and the defendant was no longer in court.

The Campbell case was a bill for an injunction, such bills being required by law to be verified and the courts move with greater caution in allowing amendments to sworn bills. In the instant case, the cross-bill is not one of that character and, therefore, greater liberality may be indulged in by the courts in the exercise of a proper discretion.

The amendment to the cross-bill was filed soon after the chancellor sustained the exceptions of cross complainant to the master’s report and considerable time before the entry of the decree. Ample time was therefore afforded complainant, either to object to the action of court, or to take steps to obviate the effect of the amendment.

The remaining question in this record to be disposed of is the one raised as to the respective priorities of the respective trust deeds as to their participation in the proceeds of the sale of the premises.

It is stated in the briefs that there are no decisions in this State upon the points involved and reference is made to the reports of other States for guidance.

It is contended by complainant that under the facts as stated, it owed no duty to cross complainant to see to the application of the proceeds of its loan towards the payment of costs of the construction of the building; that admitting for the purpose of the argument, it was negligent in so disbursing the fund, cross complainant was equally negligent and, lastly, if cross complainant is entitled to any relief, it is not that given by the decree, but that the relief, if any, to be given it, is to decree that it should share after the payment of liens, receiver’s certificates, costs and amount due first mortgage less such liens and receiver’s certificates.

Cross complainant urges in support of the decree: 1. Complainant stated to and agreed with cross complainant that it would make a building loan to Cole if cross complainant would subordinate its purchase money mortgage to the proposed building loan and relying thereupon it subordinated the lien of its mortgage. 2. Having made such statement and agreement and knowing that cross complainant acted in reliance thereon, complainant was obligated to apply the proceeds of its loan to the costs of constructing the building. 3. Cross complainant had a right to rely upon complainant performing its duty in that respect and cannot urge that cross complainant should have done the things complainant was under obligation to do. 4. The decree, in so far as it determines the rights of cross complainant, should be affirmed, because: (a) Where the record on appeal does not show affirmatively that it contains all the evidence heard in the trial court, the court of review will not go behind the decree; (b) the decree makes findings of facts sufficient to sustain the decree as to cross complainant, and, (c) even should the Appellate Court go behind the decree there is sufficient evidence in the record to sustain it.

There seems to be no doubt but that the conversation between complainant and cross complainant, through its officers, occurred as set forth in the foregoing statement of facts, and that it was so understood by complainant is evidenced by the testimony of the witness Armour Park, who testified he went to the bank of complainant to draw money on some building job, and who was told by a representative of complainant that the complainant was making a loan to Cole on two more houses for him and that he, Park, would get his money on those two in the same manner as he received the money for which he went to complainant’s bank. We are to decide the legal effect of these facts.

It appears to us that complainant, knowing cross complainant had a purchase money mortgage, stating and agreeing with cross complainant that it would make a building loan of $10,000 provided cross complainant would subordinate its first mortgage to that of complainant’s, thereby impliedly placed itself under obligation in equity and good conscience to so apply all the proceeds of the loan to the costs of the building construction. That course of action was only fair and promotive of common justice as between them. The record discloses that only $3,000 of the proceeds of this' loan went into building costs and the record is silent as to what became of the remainder of the loan except that it went to Cole and was presumably used by him for other purposes.

The parties here did not reduce their understanding to writing, nor did they agree to check upon the other as to performance of what each was to do. The cross complainant delayed filing its trust deed until after complainant’s trust deed was filed and cross complainant having done what it had agreed to do had a right ■to rely upon complainant doing what it had impliedly agreed to do, as we hold and as the chancellor found, that it was to use the proceeds of the loan to discharge building costs to the extent of the loan. Under the circumstances as they appear in this case, we are of the opinion that in making the building loan, equity imposed a duty on the mortgagee to apply the proceeds of the loan on the costs of construction of the building.

We are referred in the brief of cross complainant to the case of Equitable Savings & Loan Ass’n v. Hewitt, 67 Ore. 280, 135 Pac. 864, as bearing upon the point. We have examined the case and the facts in that case were as follows: The defendant, Mrs. Wright, purchased a lot, and, desiring to build a dwelling thereon, entered into a contract with defendant Shay to build a house for the sum of $3,000. At his request Mrs. Wright was to have the lot conveyed to defendant Hewitt in trust, for the purpose of negotiating a loan of $2,500 from the plaintiff, payable in monthly instalments. This was done, and thereupon Hewitt conveyed the property to Mrs. Wright, subject to the mortgage. Shay then sublet the contract to build the house to Hewitt. It is alleged by defendant Mrs. Wright that the loan was made with full knowledge that it was negotiated for her for the purpose of building the house, and that the plaintiff was to hold the money and to direct the payment thereof upon the cost of the erection of the building for her, etc. Before the house was complete, Hewitt abandoned it. He drew all the $2,500 loan from the plaintiff, and left many bills unpaid.

It will be seen that in the Oregon case it was alleged that the loan association was to hold the money and to direct the payment thereof towards the building costs. On page 283, the court said:

“When plaintiff made the loan and accepted the mortgage, it did not deliver the money either to Hewitt or to defendant Mrs. Wright, but retained it for its own protection against liens on the mortgaged property. The property evidently was a vacant lot, and the building of the house was contemplated by plaintiff as a basis for making the loan. Otherwise, it would not have made the loan. Therefore, for its own protection, as well as for the protection of the owner, it should have diligently paid the money only upon the expense of the erection of the dwelling.” And again on page 284: “When plaintiff undertook to hold the money to see that it was paid out to the proper parties, it was responsible for not doing it.”

The Oregon case is predicated upon an allegation of an express agreement on the part of the loan association to hold the money and pay it out on building costs, while in the instant case there was no such express agreement, yet we believe under the facts in the instant case, there was raised an implied duty on the part of complainant in this respect and was as complete as though it had been expressly agreed.

On the question of the apportionment of complainant’s lien of $3,000 between land and improvements, Joralmon v. McPhee, 31 Colo. 26, 71 Pac. 419, is cited.

We find the facts of this case fairly stated in the cross complainant’s brief, pages 19 and 20, and they are as follows: One Snell owned vacant lots subject to a first mortgage of $2,000 and a purchase money second mortgage of $4,000 owned by one O’Donnell. Snell, desiring to erect a building on the lots, obtained loans totaling $8,000 from Tooker and Joralmon, the proceeds of the $8,000 loan to be applied, first, on the discharge of the existing $2,000 first mortgage and the remainder to the construction of a building. In reliance upon this arrangement, O’Donnell released the purchase money mortgage and took back a new third mortgage of $4,000, subject to the Tooker and Joralmon mortgage for $8,000. Tooker and Joralmon thereupon entered into a building contract with Snell for the- erection of a building. It was presumed that the proceeds of the $8,000 loans were applied to the discharge of the original $2,000 first mortgage and $2,770.10 thereof were used in paying for labor and material. The remainder apparently was paid directly to Snell and did not go into the building. Various parties furnished materials, and, not having been paid, filed liens and commenced actions of foreclosure. The court found that Tooker and Joralmon were entitled to a first lien on the lots to the extent of $2,000, the amount of the original first mortgage which was discharged from the proceeds of the loan. The opinion found that they were entitled to a lien for $2,770.10 upon lots and buildings prior to O’Donnell’s third mortgage, because to that extent the value of the O’Donnell lien had been increased, the court saying: “but this lien upon the building is limited to this sum because it is all that has been advanced for the purpose of constructing it.” O’Donnell was therefore decreed to have a second lien upon the land for $4,000, subject to a $2,000 prior lien and a $4,000 lien upon both lots and buildings subject to the prior lien of $2,000 on the land and prior lien of $2,770.10 on the buildings.

The cross complainant having relinquished its first lien, relying upon the statement and agreement and the resultant implied duty of complainant, as we hold, arising therefrom, and it not having been extinguished by payment out of the proceeds of complainant’s loan, is entitled to be allowed to be a first lien upon the lot in question. Complainant by reason of having expended $3,000 upon the building is, in equity, by the same token, entitled to have a first lien upon the building. It therefore follows that complainant would be entitled to have a second lien upon the lot for $12,497.87 and costs, subject to the prior lien of cross complainant for $2,699.17 and cross complainant should have a lien upon the building for $2,699.17, or so much of it as remains unpaid, if any, after payment from that portion of the proceeds of sale apportioned to the lot, subject to a first lien of complainant to the amount of $3,000 and interest (that being the sum it advanced from the loan on building costs).

It appears that the building on the lot in question has been completed out of funds raised from the sale of receiver’s certificates which are declared to be, by the decree appealed from, a first lien and held properly so.

Thereupon it would equally be true that it would be destructive of the interests of the parties to direct a sale, which would permit the purchaser to remove the improvements. Inasmuch as the' liens as we have found them attach separately to improvements and to the lots themselves, the proceeds must be divided accordingly by ascertaining the value of the improvements separate and apart from the lot and the value of the lot without the improvements. (Joralmon v. McPhee, supra.)

The decree entered in this case by the chancellor, and which is brought here for review, is in accord with the views of this court as expressed herein and contains this clause, to wit: “And the court reserves for future computation and determination the value of the ground as distinguished from .the buildings thereon, and the exact amounts due hereunder to the various parties found to have liens upon said premises and reserves for future consideration the taxation of costs between the parties.” And upon the matters thus reserved we do not by what has been said herein intend to express any opinion on the questions thus reserved.

The record in this case was made up from a praecipe and upon its face does not purport to contain all of the record, and therefore the presumption arises that there were, sufficient facts in the record to support the decree. Allen v. Henn, 197 Ill. 486.

Upon a careful reading of the record and the decree, we are satisfied it finds sufficient facts upon which to support the decree, at least in so far as complainant, cross complainant and claimant Park are concerned, quite aside from the presumption obtaining as aforesaid.

The decree is therefore affirmed so far as it relates to the matters herein decided.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Louis Van Acker, Plaintiff in Error.
    Gen. No. 8,402.
    Heard in this court at the October term, 1931.
    Opinion filed February 18, 1932.
    Thos. P. Sinnett, for plaintiff in error.
    Benjamin S. Bell, State’s Attorney, for defendant in error; Dan H. McNeal, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

This case arises from the filing of an information consisting of four counts by the State’s attorney in the county court of Bock Island against Louis Van Acker, Odiel Oliver and John Doe, an unknown man, described in said information.

The first count of the information charged that the defendants named therein did on or about April 18, 1930, in the county of Bock Island, unlawfully possess intoxicating liquor, and in the second count it was charged that said defendants did unlawfully sell intoxicating liquor, and the fourth and fifth counts were based upon the statute relative to the maintenance of a common nuisance, being a place where intoxicating liquors were sold.

Louis Van Acker was the only defendant arrested and consequently was the only one placed on trial. He was convicted under the first and second counts of the information and after motions for a new trial and in arrest of judgment had been disposed of, a judgment was rendered upon the verdict of guilty by the jury and the defendant was sentenced on each count for 90 days ’ imprisonment, etc.

A number of reasons are assigned by the plaintiff in error for a reversal of the judgment, among them being that the jury found the defendant guilty on the first and second counts and rendered no finding on the other counts of the information. Defendant contends that the verdict is so inconsistent and incomplete that a valid and legal judgment and sentence could not have been entered thereon.

The jury found the defendant guilty of unlawfully possessing and of selling liquor under counts one and two which had the effect of a verdict of not guilty of maintaining a place where liquor was kept or sold as set forth in the other two counts. It may be that the unlawful possession or selling of liquor may be an essential element of the crime of maintaining a place where liquor is sold; but the reverse of that is not true. Our decision to this effect is swayed by the better considered cases upon the question and it has been held by those cases that where a defendant is charged in different counts with different crimes and is convicted on some counts and acquitted on others, where the evidence warrants a “guilty” verdict, such a verdict is not invalidated by reason of the apparent inconsistency thereby arising. Gozner v. United States, 9 F. (2d) 603; Carrignan v. United States, 290 Fed. 189.

The jury may have believed that the defendant did not maintain a place as required in section 21 of the Prohibition Act, Cahill’s St. ch. 43, K 21, and yet was guilty of possession and selling.

Then there are respectable courts, as we believe with the weight of authority, which hold that a conviction for illegally possessing and selling is not inconsistent with an acquittal on the charge of maintaining a nuisance, etc. Bilboa v. United States, 287 Fed. 125.

Therefore, we cannot subscribe to the contention of the defendant upon this point.

It is next insisted that the information as filed and sworn to does not meet with the legal requirements of our State. The oaths of the parties sworn to the information were administered by S. T. Burnett, clerk of the district court of the United States for the southern district of Illinois at Springfield, Illinois. Springfield, Illinois, is in Sangamon county and the counties of Bock Island and Sangamon, they being the respective counties in which the affidavit was made and in which the trial was held, are a part of the southern district of Illinois, a federal district in the State of Illinois, and Mr. Burnett is the clerk of the United States district court which has jurisdiction for federal offenses in the southern district of Illinois. The United States Judicial Code, sec. 525, gives authority to clerks of federal courts to administer oaths and it is the duty of all of the State courts of Illinois to take judicial notice of all federal courts and of their officials either elected or appointed, operating within the limits of the State, as well as the duties of those officials. Defendant cites, among other cases, Desmoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312, as authority for the proposition contended for by him in this respect; but in our judgment that case does not sustain his contention. The cited case related to the validity of an oath taken before a notary public of a foreign State and his jurat did not state that he was duly authorized to administer oaths. By the general law merchant a notary public did not have power to administer oaths unless conferred by statute and that authority must be proven. Keefer v. Mason, 36 Ill. 406.

The contention of defendant that there cannot be a conviction for possessing intoxicating liquor, and also a sale of the same intoxicating liquor where the possession is a mere incident to the sale thereof is easily disposed of by referring to the case of Albrecht v. United States, 273 U. S. 1, where the court held, “The fact that the person sells the liquor which he possessed does not render the possession and sale necessarily a single offense. • There is nothing in the Constitution which prevents Congress from punishing separately •each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.”

Defendant contends that error arose out of the instruction of the court as to the form of verdict, claiming that the jury had no alternative but to find defendant guilty under some count. ■ ->m

We cannot agree with him. The instruction was phrased in apt words and the average jury would not be misled thereby.

Finally, the defendant claims there was not sufficient evidence in the record upon which to base a verdict of -guilty. It was the theory of the State that the liquor was possessed and sold by the. defendant’s servant with the defendant’s knowledge and consent. This theory, if sustained by sufficient proof, is a proper one. People v. Duchow, 331 Ill. 636.

We have examined the record and read the evidence and we are of the opinion that, if the jury believed the testimony offered on the part of the People, after having heard the defendant’s testimony, then the jury had the right to make the finding it did.

In view of what is disclosed by the' record, and our views thereon as herein expressed, the judgment of the county court of Bock Island county in this case should be and the same is hereby affirmed.

Judgment affirmed.-


author: Mr. Justice Wolfe

text:
    The People of the State of Illinois, Defendant in Error, v. Perley W. Johnson, Plaintiff in Error.
    Gen. No. 8,396.

      Heard in this court at the October term, 1931.
    Opinion filed February 24, 1932.
    Ray E. Lane, for plaintiff in error.
    Ashbel V. Smith, State’s Attorney, for defendant in error; Hervey C. Coulson, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The State’s attorney of Lake county, Illinois, filed an information in the county court of Lake county, charging the defendant, Perley W. Johnson with the violation of Cahill’s St. ch. 91, ff 25 (section 24 of chapter 91, Smith-Hurd’s statute), otherwise known as the “Medical Practice Act.” The original information consisted of 12 counts. The plaintiff in error was tried by a jury and found guilty under counts nine and ten of the information; after the verdict all the counts, except the 10th, were dismissed. After motion for a new trial and arrest of judgment were overruled the defendant was sentenced to the State Farm at Vandalia for a term of 65 days. To review this judgment the case is brought to this court on a writ of error.

Count ten of the information is as follows: “And the said State’s attorney, in the name and by the authority of the People of the State of Illinois, as aforesaid, further informs the court that said Perley W. Johnson, late of the County of Lake and State of Illinois aforesaid, heretofore, to wit: on the second day of March, in the year of our Lord, one thousand nine hundred and thirty-one, in said County of Lake, in the State of Illinois aforesaid, not then and there possessing in full force and virtue a valid and' existing license issued by the authority of the People of the State of Illinois, to practice the treatment of human ailments in any manner, did then and there on the second day of March, in the year of our Lord, one thousand nine hundred and thirty-one, at and within the County of Lake and State of Illinois, did unlawfully maintain an office at No. 438 North Hough street, in the Village of Barrington, in said county and state aforesaid, for examination and treatment of divers persons afflicted, or supposed to be afflicted by and with certain human ailments and diseases, to wit: stomach trouble, headache, hay fever, insomnia, asthma, bronchitis, enlarged or inflamed tonsils, neuralgia, paralysis and other diseases and ailments, the further description of which is to your informant unknown, by then and there renting and occupying a building at said No. 438 North Hough street, in the said Village of Barrington in said county and state and by placing therein certain table, chairs and other equipment, and a certain large sign, with the title of doctor or Dr. attached to his name, in or about the exterior of said building above described, and by inviting and receiving divers and various persons aforesaid, to be examined and treated in said building by him for the ailments, or supposed ailments, by various methods of manipulation of the bodies of the said persons aforesaid afflicted as aforesaid with his hands and by massaging the backs, spinal areas and pelvic regions of said persons aforesaid, with his hands, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.”

The sufficiency of this information is challenged by plaintiff in error, in that it does not charge any offense under the statute. We are of the opinion that count No. 10 does state a cause of action and charges several specific offenses in violation of the Medical Practice Act, Cahill’s St. -ch. 91, fí 1 et seq.

The evidende offered, we think, clearly shows that the plaintiff in error held himself out to the public as a person engaged in the treatment of human ailments; also that he maintained an office to practice his profession, and in front of his place of business he had a sign with his name with the abbreviation “Dr.” prefixed to his name thereon. The sign in front of the office was, “Dr. Perley W. Johnson.” The evidence further shows that he maintained an office and occupied it for the treatment and examination of patients; that at this office he treated divers persons for certain ailments by manipulating their bodies with his hands, and that he received compensation for his services; that his name appears in the telephone directory of Barrington, in Lake county as “Naprapath;” that he advertised by radio addresses given by himself, that he could cure any disease, except leprosy and cancer, and that in these radio addresses he called himself Dr. Perley W. Johnson; that he advertised in the local newspapers claiming to be a person engaged in the- treatment of human ailments, and claiming great merit in the method of his treatments and boasting of the cures he had performed. This evidence was uncontradicted and the plaintiff in error offered no evidence to show that he had a license from the State of Illinois as required by law permitting him to treat human ailments.

We think the People proved beyond a reasonable doubt that the plaintiff in error had violated the statute in at least five different particulars as set forth in the 10th count of the information. This count charged specific violations of the act in such plain language that the defendant knew the charge he had to meet.

It is the contention of the plaintiff in error that the burden of proving that he did not have a license to practice medicine was on the State and this the People failed to do; therefore, he was not properly convicted. After the People had made out their case showing the acts that were in violation of the statute, the burden is on the defendant to produce a license if he had one. This he failed to do and there was no error in the court in refusing to direct a verdict for the defendant. (People v. Hollenbeck, 322 Ill. 443.)

It is next contended that the trial court erred in sentencing the defendant to the Vandalia State Farm. The Medical Practice Act provides that whoever is found gúilty of any of the offenses enumerated in said act shall be punished by a fine, or by confinement in the county jail; or by both such fine and imprisonment. Our statutes further provide that it is in the discretion of court to sentence a prisoner either to jail or to the State Farm at Vandalia after he is found guilty of a misdemeanor.

It is also urged that the court committed error in allowing the information to go to the jury room with the jury when they retired to deliberate upon their verdict. Before the information was taken by the jury the affidavit of the State’s attorney was detached and the court committed no error in allowing the information to be taken to the jury room with the jury. (People v. Franklin, 341 Ill. 499.)

The plaintiff in error also insists that the court erred in giving the instructions on behalf of the People and refusing to give the instructions offered on behalf of the defendant. We have examined the instructions and we think those given by the court fairly set forth the law applicable to cases of this kind, and there was no error in refusing to give the offered instructions of the defendant. The plaintiff in error is in no position to urge this as error, as his abstract violates rule 16 of this court, in which it provides that all of the given instructions and refused instructions shall be included in the abstract. An examination of the record discloses that numerous instructions were given in behalf of the People and 12 were given in behalf of the defendant. The abstract contains only two of the given instructions for the People and none of the given instructions on behalf of the defendant. From an examination of the whole record in this case we are of the opinion that justice had been done, and that the judgment of the county court of Lake county should be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Jett

text:
    Ley Fuel Company, Appellant, v. S. Weisman and A. M. Langert, as Trustee, Appellees.
    Gen. No. 8,345.
    Heard in this court at the May term, 1931.
    Opinion filed March 15, 1932.
    R. W. Olmsted, for appellant.
    Sweeney & Eagle and Eli D. Langert, for appellees ; Edw. L. Eagle, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

The record discloses that Ley Fuel Company, a corporation, installed an automatic coal burner in an apartment building of appellee S. Weisman, and took from him a conditional sales contract which provides that title and ownership of the burner shall remain in the seller until the purchase price has been fully paid, and that upon failure of the purchaser to make any payment as provided by the contract, the seller shall have the right to declare all unpaid balance immediately due and payable; or he may remove and repossess the equipment. Appellee Weisman failed to make payments as provided by the contract and the appellant filed a claim for mechanic’s lien within four months after the completion of the installation of the equipment, and thereafter filed a bill for the foreclosure of the lien. In its bill the complainant among other things alleged that upon information and belief the First Trust and Savings Bank and A. M. Langert of Chicago have, or claim to have, some interest as mortgagee or trustee, under trust deeds or otherwise, the precise nature whereof was unknown to the appellant. Some five months after, the appellant filed a claim for a lien as provided by the statute, the bill was amended in which amendment it was alleged that the appellant had elected to abandon the title to the equips ment installed and then sought to exert a lien and recover the amount of the purchase price due. To the bill the court sustained a demurrer which had been interposed thereto and dismissed the same for the want of equity. This appeal is prosecuted by the appellant from the order dismissing the bill.

It will be observed that the terms of the conditional sales contract, entered into between the respective parties for the sale' of this particular automatic coal burner, provides that the title and ownership of said automatic coal burner is to remain in the appellant until the purchase price and all obligations of the contract have been paid and met and not until then is the title to vest in the purchaser. It will also be seen that the purchaser is made responsible for the loss of the burner.by theft or other casualty and that he must pay the taxes thereon and insure the same for the protection of the appellant. It is quite apparent that the provisions for insurance and the payment of the taxes on the burner show that it was the intention of the appellant that the said burner was to remain personal property and not as a matter of fact to become a part of the real estate. The contract further provides that the purchaser cannot remove the burner from the address given in the contract without the written consent of the seller, who is the appellant in this cause, and that the purchaser has no right to assign his rights under the contract but the seller may do so. From the terms of the contract it appears it was not the intention of the appellant that the burner should become a part of the real estate until it was fully paid for by the purchaser. The seller also reserved the right, upon default of payment, to enter the premises and remove the burner.

The purpose of the Mechanics’ Liens Law, Cahill’s St. ch. 82, H1 et seq., is to give a lien when materials or machinery have been furnished to the owner of certain lands and premises and converted into real estate, and made a part thereof. The rights of the parties were fixed and determined at the time of the execution of the contract.

We are of the opinion the court correctly held that appellant is not entitled to a mechanics’ lien because the rule is well settled that a mechanics’ lien must at" tach, if at all, as of the date of the mailing of the contract. In this case it is apparent that there was no intention to have a lien attach when the contract was entered into by the parties, but to the contrary it was agreed that the relation of buyer and seller should not exist and that the seller was to retain title and ownership of the burner with the right of removal because of a breach, or if he elected so to do, he might declare the debt due and payable and sue therefor.

The appellant cannot, after the failure of the purchaser to comply with the contract, change the terms and intention of the parties thereto merely by electing to abandon the title to the burner and seek a lien for the recovery of the purchase price.

We are of the opinion, therefore, that no lien existed and the decree dismissing the bill should be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Gridley

text:
    Nestor Johnson Manufacturing Company, Appellee, v. Morris Goldblatt et al., Appellants.
    Gen. No. 35,124.

      Heard in the second division of this court for the first district at the April term, 1931.
    Opinion filed February 23, 1932.
    Rehearing denied March 5, 1932.
    Pritzker & Pritzker, for appellants. Morris Goldblatt and Nathan Goldblatt; Arthur J. Goldberg and Reuben L. Freeman, of counsel.
    Charles A. Brown and Harvey L. Hanson, for appellant F. W. Planert & Sons, Inc.
    Zane, Morse & Norman, for appellee; John M. Zane, Harold W. Norman and Craig R. Johnson, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By this appeal Morris Goldblatt and Nathan Goldblatt, doing business as Goldblatt Bros, (hereinafter called the Goldblatts), and F. W. Planert & Sons, Inc., an Illinois corporation (hereinafter called the Planert Co.), seek to reverse a decree of the superior court of Cook county, entered January 22, 1931, wherein it is adjudged that said defendants, and their respective officers, employees, agents, etc., and all other persons acting through or under them and each of them, be perpetually enjoined and. restrained “from carrying on any scheme of unfair competition with the complainant or from advertising for sale or representing for sale or offering for sale or selling tubular ice skates of Nestor Johnson Manufacturing Co. in juxtaposition with advertisements of or displays of Planert skates below the regular retail selling price of Johnson skates in the sum of $6.85, or of advertising the skates of Nestor Johnson Manufacturing Co. in juxtaposition with advertising matter in regard to the tubular ice skates of F. W*. Planert & Sons, Inc., or with Planert skates where the skates of Nestor Johnson Manufacturing Co. are advertised for sale at any price below that.of F. W. Planert & Sons, Inc., or at less than $6.85 per pair, or from any further carrying out of the scheme and agreement between G-oldblatt Bros, and F. W. Planert & Sons, Inc., complained of in the bill of complaint, or any similar agreement, or from further representing, either directly or indirectly, by advertising or displays or in any other way, the skates of Nestor Johnson Manufacturing Co. to be of inferior character to those skates called Planert skates.”

In the decree, after providing for the payment of certain sums allowed as costs, the court ordered that a certain previous order to show cause in a contempt proceeding “be dismissed by agreement of the parties.”

Complainant’s verified bill was filed on December 19, 1927. It prayed that a temporary injunction be issued, enjoining the defendants, their agents, etc., “from advertising* for sale, or offering for sale, or representing for sale, or selling, tubular ice skates of complainant below the regular retail selling price of such skates in the sum of $6.85 per pair, or of advertising the skates of complainant in. juxtaposition with advertising made in regard to the tubular ice skates of Planert & Sons, Inc., or of Planert skates,, where the skates of complainant are advertised for sale at any price below that of said Planert & Sons, or at less than $6.85 per pair, or from any further carrying out of the conspiracy complained of in the bill of complaint herein, or from further representing, either directly or indirectly, the skates of complainant to be of inferior character to those skates called Planert skates”; and that upon final hearing the injunction be made perpetual, etc. On the same day, without notice, the court issued the temporary injunction as prayed for, and on December 22, all defendants having entered appearances, the court, on motion of the Goldblatts to dissolve the injunction on the face of the bill, dissolved it. On December 23, 1927, complainant, following the practice as sanctioned in Williams v. Chicago Exhibition Co., 188 Ill. 19, 26, moved that its bill be dismissed and that it be allowed to appeal to this court from the order of dismissal. The motions were granted and the. appeal was perfected here.

On November 27, 1928, this court adjudged that the judgment of the superior court, dismissing complainant’s bill, be reversed, and that the cause be remanded to the superior court “with directions that it enter' a rule upon the defendants to plead to or answer the bill, as they severally may be advised, and for a. hearing upon the merits.” (Nestor Johnson Mfg. Co. v. Goldblatt, 250 Ill. App. 644.) In the opinion (not published) we said: “The sole question for our determination is whether the facts, as alleged in the bill, warranted equitable relief by injunction as prayed for. Defendants ’ motion to dissolve operated as a demurrer to the bill and admitted the truth of the facts therein properly pleaded, as distinguished from conclusions or inferences of law.” After setting forth the material allegations of the bill and describing four advertisements, which appeared in Chicago newspapers on different days during the month of December, 1927 (copies of which advertisements were set out in the bill), we further said:

“After examining the allegations of complainant’s bill, and considering the briefs and arguments of opposing counsel, and reviewing many adjudicated cases, we have reached the conclusion that the bill states such facts as require, under the decided current of authority of the courts of this and other States and of the United States, that defendants plead to or answer the bill arid that a hearing upon the merits be had. We think that the bill sufficiently discloses prima facie that defendants wilfully and maliciously sought, and at the time of the filing of the bill still were seeking*, to injure complainant in its trade and business, thereby causing it irreparable damage, and that defendants wilfully and maliciously conspired together to that end, and, when the acts as alleged were committed in consummation of the conspiracy, had no legitimate purpose of their own to serve. (Citing cases.) And we think that the bill sufficiently discloses prima facie a case of conspiracy on the part of defendants to unlawfully and maliciously carry out a scheme of unfair competition, remediable by injunction. (Citing cases.) ”

After the mandate of this court had been filed, the superior court, on December 20, 1928, reinstated the cause and also the temporary injunction against defendants. After answers to the bill, and replications to the answers, had been filed, the court on January 7, 1929, referred the cause to a master, before whom a mass of oral and documentary evidence was introduced. He made his report on June 6, 1930, in which after making numerous findings, he concluded that “complainant has failed to prove the material allegations contained in the bill,” and that “the equities of the cause are with the defendants.” He recommended that the bill “be dismissed for want of equity,” and further found:

“20. That no conspiracy between said Goldblatt Bros, and defendant Planert has been proven; that Goldblatt Bros, procured said Johnson skates through regular business channels; that there was no agreement between Goldblatt Bros, or anyone through whom said skates were purchased to sell the same at any particular price; and that the preponderance of the evidence discloses that said advertisements and acts of Goldblatt Bros, and defendant Planert were not done for the wilful and malicious purpose of injuring the business of complainant, but were done for the lawful purpose of legitimately increasing the sales of said Groldblatt Bros, and defendant Planert.”

Complainant filed numerous objections to the report but the same were overruled by the master, whose report was filed on October 17, 1930. On the hearing before the court the objections stood as exceptions.

On December 16, 1929, while the cause was pending before the master, complainant filed a petition praying for a rule on the Groldblatts to show cause why they should not be adjudged in contempt of court for violating the temporary injunction then in force, by reason of their publication of three other advertisements in a Chicago newspaper during December, 1929. Copies of the advertisements were attached as exhibits to the petition. After the court had entered the rule, the defendants filed an answer to the petition. Inasmuch as it appears from the decree, as above mentioned, that the contempt proceedings “by agreement of the parties” were dismissed, we deem it unnecessary to further consider said proceedings or said advertisements.

In the decree the court made numerous findings in substantial accord with the allegations of the bill. Many of them are contrary to those of the master. Among the court’s findings are:

“8. In the months of October and November, 1927, complainant received over the telephone requests from someone purporting to speak from the Groldblatts ’ store asking for sales of Johnson skates directly to Groldblatt Bros, from complainant, but it was explained by complainant what its method of business was and such sales were declined by complainant, and thereupon the person soliciting such sales threatened complainant for such refusal; that thereafter said Groldblatt Bros, and said Planert Co. formed the design of carrying on a scheme of unfair competition with and of injuring the business of complainant ....
“11. That the various acts above stated were done by the defendants not for any lawful or legitimate purpose of said Goldblatts or said Planert Co., or either of them, but for carrying on an unfair competition with complainant and for the unlawful purpose of appropriating the good will and reputation of said complainant and injuring its business and the good name and value of Johnson tubular ice skates. . . .
“13. That the material allegations in the bill of complaint have been substantially proved, and that complainant is entitled by reason thereof to a permanent injunction, enjoining the Goldblatts and the Planert Co., and the agents, officers, employees and successors and assigns of each of them, as prayed in the bill.” ■

Inasmuch as defendants’ main ground for a reversal of the decree is that (as found by the master) the evidence failed to prove any conspiracy on the part of the. Goldblatts and the Planert Co. to injure complainant in its trade and business, as alleged, we here set forth the material allegations of the bill, in which it' is first alleged in substance:

That complainant is an Illinois corporation with principal place of business in Chicago; that the Goldblatts are copartners, as Goldblatt Bros., in' conducting a department store in Chicago; that the Planert Co. is an Illinois corporation having its principal place of business in Chicago; that complainant and Plánert Co. are competitors in business in Chicago, the United States and elsewhere, in manufacturing and selling skates of the same general design and description, known as “tubular ice skates”; that complainant’s skates are known to the trade as “Johnson” skates, one of the models of which being called “Flyers”; that complainant’s skates have been widely advertised and have had a high reputation; that its business in manufacturing and selling them has been large and lucrative; that the Planert Co. sell and have sold tubular ice skates, known as “Planert’s” skates, and of which a certain model is called “Winners”; .that the Planert skates have a general resemblance to those of complainant; that the Goldblatts, as a part of their retail business in said department store, have sold and are selling tubular ice skates; that complainant “has conducted its business of selling its skates in Chicago through jobbers or wholesalers, and has not, as a matter of reasonable and deliberately adopted method of business, sold its skates in Chicago directly to. the retail trade, excepting large dealers whose purchases are equal to those of a jobber”; and that complainant “has consistently maintained the wholesale selling price of its model of ‘Flyers’ and thereby has maintained a general high selling, price at retail of said ‘Flyers’ of $4.50 per pair to its distributors and jobbers and $6.85 up to $7.50 per pair to the retail trade.”

The above allegations are sustained by the evidence introduced before the master, excepting those allegations in the last two clauses. It appears in substance from the testimony of complainant’s general manager, C. I. Johnson, that complainant, prior to December, 1927, sold Johnson skates directly to a large number of retail merchants in Chicago, including The Fair, Stebbins Hardware Company, Von Lengerke & Antoine, Wieboldt’s, Sears Roebuck & Co. and Fair Play Co.; and also “to about 25 to 50 retailers in the State of Illinois”; and also “to approximately 100 exclusive retailers in the United States, scattered from coast to coast.” It also appears from Johnson’s testimony that complainant sold many skates to Sears Roebuck & Co. at a net price, including discounts, of $4.27~Y2 per pair. The bill further alleges:

“8. That the Goldblatts, being incensed against complainant on account of the fact that it as a manufacturer disposed of its product to jobbers and large dealers, and that it did not think it good business policy to sell its skates directly to the Goldblatts as retailers and had so informed them, malieionsly and unlawfully conspired with the Planert Co. to injure the business and good will of complainant, and the Planert Co. maliciously and unlawfully conspired with the Goldblatts to carry on an unfair competition with complainant, and to market its skates instead of Johnson skates asked for by customers, and agreed to publish the advertisements hereinafter set forth, and other advertisements of that character, and to cause the Goldblatts to advertise for sale and to sell complainant’s tubular ice skates at a price less than cost, and to keep on hand a few of said Johnson skates, not enough, in quantity to justify the advertising thereof, and, when exhausted, to offer Planert skates to customers instead of Johnson skatesf and, by means of said advertisements and such prices, to represent the skates of complainant tobe of inferior quality as compared with the skates of the. Planert Co., and to cause the various retailers dealing in tubular skates to decline to deal in and to carry complainant’s tubular skates and to cause it to be understood in the trade that complainant was cutting the price of its skates through sales by the Goldblatts, and to destroy complainant’s business and sales, and to cause retail dealers to cancel orders for complainant’s tubular skates; and did further agree to divide between the Planert Co. and the Goldblatts the cost of said advertising”; and “in pursuance of said conspiracy, did on December 4, 1927, publish and caused to be published, either at their joint cost or at the cost of the Planert Co., in the Chicago Herald and Examiner, a Chicago newspaper having a wide circulation, the following advertisements:”

The advertisement of December 4, 1927, is set out in full in the bill by newspaper copy, and in our former opinion we described it as follows:

“At the top is the name in large letters of ‘Goldblatt Bros. Dept. Store’ and the location of the store at ‘1609-35 W. Chicago Ave., near Ashland. ’ Then appears a heading in large letters ‘ Genuine Planert Skates’ in the center of the sheet. Underneath this heading, and to the left, is a cut of a high laced shoe, attached underneath to a tubular skate, and the words, ‘The World’s Best Skate,’ and also a figure of a boy skating and a dog running along beside him, and the words, ‘I’m as fast as you are now, Speed.’ Underneath said heading, but to the right, are the words, in heavy black type, ‘ Planert’s All Steel, Full Tubular Ice Skates. ’ Then follow the sentences, in small type: ‘Winner’ Model, for racing, hockey, figure and pleasure skating. Electrically welded. No open seams. Shoes of selected leather. Nationally advertised and' guaranteed by the manufacturer. On sale, a pair .......’ Still further to the right are the figures, in very large black type, ‘$6.95.’ Underneath said sentences are the words: ‘Free; a pair of pure all-wool skating hose with every pair. ’ Immediately to the left of the figure of the boy and dog, and separated therefrom by a broad line, is another cut of a high laced shoe, attached underneath to a. tubular skate. Above this cut are the words ‘Nestor Johnson Skates.’ The word ‘skates’ is of larger and blacker type than the words ‘Nestor Johnson.’ Below this cut are the sentences, in small type: ‘The well-known Nestor Johnson Skates, Hockey or Racers for women or men. Famous Flyer brand. All sizes, a pair.......’ Immediately to the right of the sentences are the figures, in large black type, ‘$4.98.’ ”

The bill further alleges (par. 8) that by reason of said advertisement defendants “did cause it to be understood that complainant was selling its skates to a particular dealer at a large discount, and was enabling the Goldblatt Bros, to sell its skates at- a lower price than they could be purchased by any other dealer, and sold at less than cost in the retail trade, and did impliedly represent said tubular skates of complainant to be, in the public understanding, inferior to said Planert skates; and that the public did understand that complainant’s skates were inferior to said Planert skates. ’ ’ The bill further alleges in substance:

9. That “pursuant to said conspiracy” the Goldblatts, having on hand a “few pairs” of Johnson skates, sold at the price advertised the Johnson tubular skates which they had on hand, and then offered for sale, to customers asking for Johnson skates, Planert skates “at the same cut price”; and that said price of $4.98 “was below the price at which my retailer could acquire Johnson skates.”

10. That the Goldblatts, “having thus sacrificed its small number of Johnson skates,” attempted to obtain additional skates “to further carry on said conspiracy,” but was unable to obtain any more of complainant’s skates at a price below $5.50 per pair; that, thereupon, “having obtained about 75 pairs of complainant’s skates,” and “being thus equipped to further carry on said conspiracy,” they, on December 9, 1927, published in the Chicago Daily News, a newspaper having a wide circulation in Chicago, another advertisement (set out in full, in which the Johnson skates, “Flyer Brand,” are advertised for sale by the Goldblatts at the “sensationally low price of $5.48 per pair,” and the Planert skates, “Winner Model,” are advertised at the price of “$6.95 per pair,” and that with each pair purchased there would be given to a purchaser “free, a $1.00 set of scabbard guards”); that said advertised price of the Johnson skates “was below the cost price of said skates”; that said advertisement “was of the same character and calculated to produce the same effect as the preceding advertisement”; that thereupon the Goldblatts .“sold its few pairs of Johnson skates at said advertised price of $5.48 per pair,” and thereupon “offered Planert skates to customers asking for Johnson skates at $5.48 per pair”; that thereafter on December 14, 1927, the Goldblatts, “in furtherance of said conspiracy,” advertised Johnson skates “at the price of $5.44 per pair” in said Chicago Daily News (this third advertisement is set out in full in the bill and is also of the same general character, — the Planert skates being advertised at said price of $6.95 per pair); that thereafter on December 16, 1927, the Goldblatts, “in pursuance of the same conspiracy,” published in said Chicago Daily News a fourth advertisement (also set out in full- in the bill, and in which the Johnson skates are advertised at “$5.39 per pair” and the Planert skates, “The World’s Best Ice Skates,” at “$6.95 per pair,” and under the heading “Nestor Johnson Skates” are the words “Another Big Shipment Received for Tomorrow”); and that “such acts and said advertisements were done solely for the malicious and unlawful purpose of injuring complainant’s business and the good name and value of its tubular skates, and not to advance any legitimate purpose of the Goldblatts.”

11. That said conspiracy and said publications, and the aforesaid acts of the defendants, the Goldblatts and the Planert Co., were done by them and each of them, not for the lawful and legitimate advancement of the business of the Goldblatts or for any lawful or legitimate purpose, but “solely for the wilful and malicious purpose of injuring complainant’s business, and of bringing its tubular skates into disrepute, and of drawing away its customers for said skates”; that “by the conspiracy and acts aforesaid complainant’s business has been greatly injured” and “it has been exposed to damages which cannot be measured in money and are irreparable in their nature”; and that said acts of defendants “are and constitute a continuing wrong and injury, irreparable in its nature and which can be redressed only in a court of equity.”

As to the finding of the court (par. 8 of the decree as above) relative to some person telephoning complainant several times during the months of October and November, 1927, and requesting complainant to sell its skates direct to the Goldblatts, and which person after the refusal of the requests threatened complainant, etc., complainant’s counsel here urge that the finding discloses a motive on the part of the Goldblatts to enter into the conspiracy as charged. The only evidence, however, to support the finding is the testimony of complainant’s general manager, O. I. Johnson. He testified on direct examination: “I had telephone conversations in September and October, 1927, three of them, — the first in September and the other two before November 1st. In the first conversation they said, ‘This is Goldblatt,’ and that they were interested in skates. I told them, as I had other people, that we sold through distributors. ... I explained our method of doing business, and said we had certain jobbing arrangements that we had to maintain, selling to the wholesaler, and that we were not in a position to sell to them direct. . . . The second conversation was about the same as the first. The third conversation started about the same as the first. This man from Goldblatts said that they were going to purchase the Alfred Johnson skates, and I told him . . . that it was his privilege to buy where he wanted and our privilege to sell where we wanted, but that he should be careful not to advertise them as ‘Johnson’ skates, and then he went on and made a threat. He said: ‘Well, we will fix you for that.’ ” On cross-examination the witness testified: “I had never heard the voice over the telephone before, and probably would not now recognize it. .. . In the third conversation I recognized the voice as that of the same man I had talked to previously. He told me he was from Goldblatts. I have never made any inquiries to find out who he was.” We do not think that this testimony as to the claimed telephone conversations was competent or that it can be held to support the above mentioned finding. (Rueckheim Bros. & Eckstein v. Ser Vis Ice Cream & Candy Co., 146 Ill. App. 607, 609, 610; Pumphrey v. Giggey, 150 Ill. App. 473, 476; Gallagher v. Singer Sewing Mach. Co., 177 Ill. App. 198, 226; 71 A. L. R., note, p. 10 et seq.) Furthermore the master, having allowed this testimony in evidence as well as contradictory testimony of both Goldblatts and their agents in positions of authority, made the further finding that the preponderance of the evidence discloses that “no attempt was ever made by Goldblatt Bros, to purchase any skates directly from complainant.” And the uncontradicted evidence further discloses that the Goldblatts made their purchases of complainant’s skates from Butler Brothers and Marshall Field & Co., who were distributors of complainant’s skates in Chicago. And there is no sufficient evidence connecting the Planert Co. with said claimed threat.

As to the allegations (contained in par. 8 of the bill as above) that the Goldblatts conspired with the Planert Co., and the latter with the former, to do the acts mentioned, we do not think that such conspiracy is sufficiently proved by the evidence. What is said in Tribune Co. v. Thompson, 342 Ill. 503, 529, is here applicable: “It first must be noted that the burden of proof is upon the complainant to prove the appellants guilty of conspiracy, as charged in the bill of complaint, by clear and convincing evidence. . . . There is no direct evidence in this case to prove the conspiracy, and while conspiracy may be proved by indirect or circumstantial evidence such evidence must be clear and convincing, and if the facts and circumstances relied upon are as consistent with innocence as with guilt it is the duty of the court to find that the conspiracy has not been proved. . . . ”

As to the acts alleged to have been done by the Goldblatts “pursuant to said conspiracy,” and the purpose of them (set forth in paragraphs 9 and 10 of the bill as above), we do not think that the same were sufficiently proved by the evidence, except as to the drafting and publication of said advertisements by the Goldblatts alone. On the contrary we think that the following further findings of the master, as well as his finding No. 20 above mentioned, are in substantial accord with the evidence:

“10. That the business of the defendant Planert was originally started by F. W. Planert in the year 1900 when said Planert made a pair of, skates for one of his sons; that he started to manufacture skates on a very small scale and that said business continued to grow; that in 1927 said defendant corporation sold about 75,000 pairs of skates. The. present corporation of F. W. Planert & Sons,- Inc., was organized in October, 1925. . -
“11. That the complainant and the defendant (Planert Co.) both claim that the tubular skates manufactured by them are superior to all other skates and each claims that its skates are superior to the skates of the other. The master further finds that the skates manufactured by the complainant and said defendant are of the same general character and differ only in certain details.
“12. That said Goldblatt Bros, purchased between 900 and 1,000 pairs of said Johnson ‘Flyers’ skates during the season 1927-28 from Butler Brothers, and Marshall Field & Co., Chicago; they also had about 40 or 50 pairs of said skates left over from the preceding season, 1926-1927; that Marshall Field & .Co. made three shipments consisting of 313 pairs of ‘Johnson Flyers’ Skates as follows: One shipment of 213 pairs, another shipment of 3 pairs, and another shipment of 97 pairs. On December 9 and December 15, 1927, said Butler Bros, shipped to Goldblatt Bros, a total of 600 pairs of said skates.
“14. That defendant Planert solicited orders for skates from said Goldblatt Bros, on many occasions in the years 1926 and 1927 through one Brodack, a salesman in its employ. That the first order was given to said Brodack in November, 1927, for 100 pairs of ‘Winners’ which were to be shipped on consignment at $4.50 per pair; 119 pairs were actually shipped, consisting of two types of ‘Winner’ model and ‘North-light’ model. At that time defendant Planert allowed said Goldblatt Bros, the sum of $100 for advertising purposes. The request for the allowance was made by Goldblatt Bros., prior to the placing of their first order. The practice of making cash allowances for advertising was generally followed among the trade.
“15. That after the shipment of said 119 pairs of skates, further orders were received by defendant Planert from Goldblatt Bros, and during the season 1927-1928, about 1,000 pairs of said skates were sold to said Goldblatt Bros. The price paid by Goldblatt Bros, for said first shipment of 119 pairs on consignment was at the rate of $4.50 per pair, less cash discount of two per cent in 10 days and net 30 days.
“19. That one Lucy Baxter purchased a pair of Johnson skates at Wieboldt’s store in Chicago, in December, 1927, for $6.85; that a day or two thereafter she saw the advertisement of Goldblatt Bros, in one of the newspapers, advertising the sale of Johnson skates; that she returned the skates so purchased by her to Wieboldt’s store and.came to the Goldblatt’s store to select a pair of Johnson skates at the advertised price; that she was informed by one of the salesmen in Goldblatt’s store that the size she desired was not in stock, but that they would order same; that she was also told that Planert skates were better than Johnson skates; and that she finally purchased the Planert skates.”

The witness Baxter was called by complainant. Her testimony further discloses in substance that said salesman explained to her at the time certain points of superiority of the Planert over the Johnson skates which, upon comparing the two models, she believed to be true; that the salesman did not offer her “Planert skates as Johnson skates”; that she did not remember the exact price she paid for the Planert skates; that as she did not want the advertised stockings, the salesman said he “would make an allowance of one dollar on the skates”; and that she was satisfied with her purchase of the Planert skates.

As evidence of misrepresentation and unfair trade competition on the part of the Goldblatts, complainant’s counsel here lay great stress upon that portion of the advertisement of December 16, 1927, wherein appear the words, “Another Big Shipment Received for Tomorrow.” The evidence does not disclose that this was a misrepresentation. It appears that on December 9, 1927, Butler Bros, delivered to the Goldblatts 500 pairs of Johnson skates and also 100 pairs on December 15, 1927. And complainant’s witness, Edward A. Bass, testified: “I would call 50 pairs a fair sized order and 100 pairs a big shipment.”

The court further found in the decree that the Planert Co., or its representatives, “consented to this advertising and scheme.” We do not think that the evidence supports the finding. It does not appear that the Planert Co., or any of its representatives, ever consented to the form or substance of any of the four advertisements, or to any “scheme.” While consent was given, at the Goldblatts’ request, to an advertising allowance of $100, the same was given on November 22, 1927, before any advertisements had been drafted or published by the Goldblatts.

After careful consideration of the allegations of complainant’s bill, the evidence and the voluminous briefs of respective counsel, we are of the opinion that the court erred in entering the decree, awarding the perpetual injunction, as first above mentioned. We think that the master was right in his ultimate finding that complainant “has failed to prove” the allegations of its bill. The gist of the bill is the malicious conspiracy of the G-oldblatts with the Planert Co. to injure the trade and business of complainant. We do not think that such a conspiracy or any conspiracy has sufficiently been proven. And we do not think that the evidence is sufficient to support the perpetual injunction, as prayed for or as allowed, on the ground of unfair trade competition on the part of the defendants or any or either of them.

Accordingly, the decree of the superior court of January 22, 1931, is reversed and the cause is remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.

Kerner and Scahlah, JJ., concur.