author: Mr. Justice Holdom

text:
    Hyde Park Investment Company, Appellee, v. Hyde Park State Bank, Defendant. Liberty Supply & Lumber Company, Appellant.
    Gen. No. 33,747.

      Opinion filed May 28, 1930.
    Smietanka, Poulton & Bryant, for appellant; Morton John Barnard, of counsel.
    William J. Pringle and Edwin Terwilliger, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The Hyde Park Investment Company filed its bill to foreclose four certain trust deeds upon certain premises described in the bill, in which Liberty Supply & Lumber Company,and others were made defendants. The cause proceeded to trial and there was a decree in favor of complainant, finding the amount due and ordering a sale of the mortgaged premises to satisfy such degree.

The appeals before us do not seriously challenge the integrity of the foreclosure decree.

Liberty Supply & Lumber Company, Fred M. Heinlcel, George Thomas, Alfred Jones, and James A. Black Hardware Co., a corporation, filed their several answers to the bill of foreclosure in the nature of intervening petitions, claiming mechanics’ liens upon the mortgaged premises for labor and materials furnished in buildings erected upon the mortgaged premises. All of these intervening petitions were dismissed for want of equity, five in number, and the appeals to this court are numbered respectively 33,747, 33,922, 33,923, 33,924 and 33,925, all of which have been consolidated in this court for hearing on complete record and abstract of said record in the case first above entitled.

All of the questions involved in the foregoing appeals will be discussed and disposed of in this opinion.

We make these preliminary observations applicable to all of the five mechanics’ Hen appeals before us..

In dismissing a bill, petition or intervening petition for want of equity, it is not necessary to recite findings of fact in such decree of dismissal. Findings of fact have no place in a decree dismissing a bill or intervening petition for want of equity. Kelly v. Funkhouser, 171 Ill. 205. In State Bank of Chicago v. Christensen, 195 Ill. 496, it was held that the incorporation of findings in a decree dismissing a bill for want of equity is unnecessary. Where there are such findings it is immaterial whether they are findings of fact or conclusions of law and fact.

Peter S. Nielsen, a widower, executed the four trust deeds sought to be foreclosed, to secure his indebtedness therein recited, and conveyed such premises to the Chicago Title & Trust Company as trustee to secure such loan. Nielsen on November 25, 1927, deeded the premises conveyed by the four trust deeds aforesaid to the Hyde Park State Bank as trustee. In and by the conveyance by Nielsen to the Hyde Park State Bank, as trustee, said Nielsen conveyed all of his title, without reservation, to the property conveyed by the four trust deeds foreclosed in this proceeding, and subsequent thereto he died. As Nielsen at the time of his death had no title or claim of title to the real estate theretofore conveyed by him in the four trust deeds in this foreclosure proceeding, it was not necessary for complainant in the foreclosure proceeding to make the personal representatives of said Nielsen, deceased, parties to said foreclosure proceeding.

I. The Claim for a Mechanic’s Lien of the Liberty Supply & Lumber Company.

The decree dismissing the intervening petition of the Liberty Supply & Lumber Company for want of equity at its costs was entered for the sole reason that it presented a claim which in every material particular was fraudulent and grossly exaggerated. Under such circumstances only one inference could be drawn from the evidence on that subject, which was that the fraud perpetrated was by design and with full knowledge on the part of the claimant.

In the first place the answer of the Liberty Company in the nature of an intervening petition for a mechanic’s lien alleged that it entered into a verbal contract with Nielsen, the owner, to furnish lumber for the building then being erected on Lot 6, and that he agreed to pay therefor the reasonable value of such material; that it furnished such material and that its reasonable value was $2,669.51; and further alleged that on March 7, 1928, it filed in the office of the clerk of the circuit court a statement of mechanic’s lien for such unpaid balance, and the same allegations were made in the intervening petition as to the three other lots, making a total claim of $10,689.04, and averred that the material was delivered to that amount for each of the four lots. It attempted to prove by its president categorically the delivery of the lumber on each of the four lots in value the aggregate amount of $10,689.04. This witness testified that he was at the building four or five times a week and that he checked the lumber being used in the construction of the buildings on the four lots; that he saw such lumber used in the construction of such buildings; whereas in truth and in fact the contract was not a verbal contract but was in writing signed by the parties and was for a price fixed by the contract and not otherwise.

While the terms of the written contract between the parties provided for a trade discount which on the statement tendered would amount to $883.81, no such credit was given, and the Lumber Company attempted to collect the gross amount, notwithstanding that the books of the Lumber Company showed on inspection that the account was credited with the discount. This was a bold and fraudulent attempt by the Lumber Company to saddle the property with a lien for that excessive amount. Such conduct was not the result of a mistake or involuntary error, but was a deliberate fraud practiced by the Lumber Company intentionally and with full knowledge by the claimant of the facts. The law will excuse mistakes and honest errors, but not so where fraud, as in the case at bar, permeates the whole transaction, so far as the Lumber Company is concerned, and it is such fraud which under the law deprives claimant Lumber Company and bars it from any relief. Such gross and patent frauds cannot be condoned under the law. Many other fraudulent representations by claimant Lumber Company might be categorically set forth, but we think the foregoing recitations are sufficient, standing alone, to stamp the claim of the Lumber Company as fraudulent in every material particular and amply sufficient to bar it from any relief in a court of conscience.

The answer of the Lumber Company in the nature of an intervening petition for a mechanic’s lien is the pleading of the Lumber Company, under the Mechanics’ Lien Act, Cahill’s St. ch. 82, ft 9; section 9, chap. 82, Smith-Hurd B». S. This provides that all parties may contest each other’s rights without any formal issue made up between them. No special pleadings are necessary. Any proper evidence tending to contest the claim is admissible under such a petition, it being' incumbent upon such petitioner to maintain by adequate proof the material averments of such petition. A failure so to do defeats the relief so sought. All the defendants without any special pleading have the right to put in evidence, all facts material to defeat the claim made by the claimant in his pleadings. If the averments of claimant’s pleadings are not proved or if the proof establishes facts not averred in the pleading, and no amendment is made to support the proof thus made, it would be the duty of the court to dismiss the bill. Tucker v. Powell, 318 Ill. 166. This rule has been applied in a number of cases in this State, among which are Geraghty v. Organ, 67 Ill. App. 263; Ludwig v. Huverstuhl, 108 Ill. App. 461; Belanger v. Hersey, 80 Ill. 70, and also in Wagner v. Hansen, 103 Cal. 104.

The truth of the Lumber Company’s claim for mechanic’s lien filed in the office of the clerk of the circuit court and its answer in the nature of an intervening petition, on which the trial was had, was effectually disproved by its own proofs. It claimed a verbal contract by which the lumber was to be furnished at a reasonable price, and proved a written contract by which the lumber was to be furnished at a fixed price. The claimant’s frauds were abundantly proved by its own proofs. It further proved that its claim filed in the office of the clerk of the circuit court was false as well as its intervening petition for a mechanic’s lien. In other words, it offered no proof, which under the law would entitle it to the mechanic’s lien sought. The Lien Statute being contrary to the course of the common law, claims under it are required to be proven with certainty. Nothing can be assumed in the absence of legal proof.

The following quotation from Gibbs v. Hanchette, 90 Mich. 657, cited and followed in Marsh v. Mick, 159 Ill. App. 399, is quite pertinent to the point last discussed:

“It is insisted in their behalf that the mistake was not fraudulent, wilful or intentional; that it is only an inaccuracy. The excuse given by them for the misstatement is that their attorney was absent at the time they filed their claim and, therefore, they could not arrive at exact amounts. But it appears that they made no efforts to ascertain whether they could obtain the contract from their attorney’s office. . . . The most that can be said in their behalf is that they made and swore to the claim thoughtlessly and carelessly and without any effort to obtain the correct data, which were within their reach. We think this comes within the definition of ‘knowingly’ and ‘wilfully’ given by Mr. Phillips in his work on Mechanics’ Liens in Section 355 as follows:
“ ‘A person wilfully and knowingly claims more than is due, only when he claims something which he knows not to be due, and not when he claims what he honestly, though mistakenly, believes to be due him.’
“It cannot be seriously contended that these complainants did not know that the claim was too large. . . . The purpose of the statute is that an accurate and truthful claim shall be filed. The authorities very generally hold that where there is an honest mistake of fact made in the honest belief of its correctness, courts will not for that reason hold that the lien is lost. But where claimants place upon record a statement which they know is not correct, the authorities are very uniform that the lien is lost. (Citing cases.) There is good reason for requiring strictness, accuracy and truthfulness in filing these statements. They are proceedings ex parte and in invitum as to those against whom they are aimed. The effect is to tie up their property, to prevent sales and the raising of money by mortgage. The reason' for this rule is well stated in Hoffman v. Walton, 36 Mo. 613. . . .
“Lienors with knowledge of the status of the account, or with information thereof at their disposal, cannot be excused for a failure to file this truthful statement, so wisely and clearly required by the statute. To hold otherwise would result in offering a premium for thoughtlessness and carelessness and in establishing liens contrary to the provisions of the law.”

The claim that such defense is a technicality is well answered in Wagner v. Hansen, 103 Cal. 104, in the following language:

“The purpose of the record and statement must be to inform the owner, in case of a contractor and laborers rendering service under such contract, as to the extent and nature of a lienor’s claim, to facilitate investigation as to its merits. Such a statement as the above would be misleading. The lienor is required to verify the statement. In all essential particulars it must be true.
“Respondent’s only reply to this suggestion is that it is a mere technicality. Plaintiff’s claim to a lien is a mere technicality. He is given a right upon condition that he complies with the statute, and there must be a substantial compliance with all these conditions to the right.”

See New Jersey Steel & Iron Co. v. Robinson, 83 N. Y. S. 450, 451, affirmed in memorandum opinion 172 N. Y. 632; Christian v. Allee, 104 Ill. App. 177.

It is contended by claimant that evidence of exaggerated claims made in a conversation relative to a settlement were erroneously submitted. However, no such evidence was received regarding any negotiations for a settlement. It was an independent statement made in an effort to compromise and was therefore admissible. Domm v. Hollenbeck, 142 Ill. App. 439. The rule is well stated in Downs v. Michigan Commercial Ins. Co., 157 Ill. App. 32.

We ground our decision in the Liberty Company appeal, in affirming the decree of dismissal of the chancellor, that the claimant’s claim was fraudulent in every material particular, false and grossly exaggerated and so done with intent to defraud; that the false claim was made intentionally and not through error, mistake or inadvertence; that by reason thereof the chancellor had no alternative under the law than to do as he did, disallow claimant’s claim totally.

No. 33,924.

II. The Claim of Alfred Jones for a Mechanic’s Lien.

Jones claimed to be the plumbing contractor for the buildings to be erected on the four lots, trust deeds on which complainant was foreclosing. There are several defenses interposed such as the claim was not filed within four months from the doing of the last work under his contract, etc. These defenses, however, are not material in the light of the conceded fact that Jones executed and delivered a waiver of lien under seal for a valuable consideration. In the light of this waiver other defenses are unimportant. This waiver was executed and delivered on September 9, 1927, to the complainant. The waiver was addressed “To Whom It May Concern,” and after reciting that Jones had been employed by Nielsen as contractor on the building described in complainant’s bill of foreclosure, concluded thus:

“Now, therefore, know ye that I, the undersigned, for and in consideration of One Dollar and other good and valuable considerations, the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien or claim or right of lien on said above described building and premises under ‘an act to revise the law in relation to mechanic’s lien approved May 18, 1903, and in force July 1, 1903’ and amendment thereto on account of labor or materials or both furnished or which may be furnished by the undersigned to or on account of the said work . . . for said building or premises.
“Given under my hand and seal this 9th day of September, 1927. (Signed) Alfred Jones (Seal).”

This waiver, as appears from the foregoing recitals-therefrom, covered labor or materials or both furnished or which may be furnished by Jones “to or on account of said work,” etc. This waiver is full and complete, covering as it did, all work and labor done or thereafter to be done for the premises covered by the trust deeds being foreclosed by complainant. The waiver operated to release any lien which Jones might have had but for such waiver. Wolff Co. v. Gwynne, 246 Ill. App. 86. The bona fides of the waiver is not questioned. It is a complete defense and amply sufficient to support the decretal order of the chancellor dismissing Jones’ claim for want of equity.

No. 33,922.'

III. The Claim of Fred M. Heinkel, a Mason Contractor Upon the Premises in Foreclosure by Complainant.

The Heinkel claim is similar to that of Jones and he gave a waiver of lien dated September 2, 1927, under seal. The waiver of lien is not abstracted. We have gone to the record and found a copy offered in evidence as an exhibit. The waiver is “on account of labor or materials or both furnished by Heinkel to or on account of the owner.” It appears from the testimony that Heinkel received $4,000 on the date he signed the waiver of lien. Without any further explanation, documentary or oral subsequent to the execution and delivery of the waiver we are of the opinion that the waiver was effectual and discharged any lien which Heinkel theretofore had on the premises for which he was mason contractor. We think the force and effect of this waiver is to the same purport and effect as in the Jones claim, supra. We find no evidence in the record justifying this court in reversing the finding of the chancellor in the Heink'el claim and dismissing his claim for want of equity.

No. 33,923.

IV. The Claim of George Thomas.

While Thomas did masonry work upon the premises sought to be foreclosed in complainant’s foreclosure proceeding, yet there is no evidence or any suggestion of evidence found in the record that Thomas ever took any proceedings to perfect any lien which he might have had under the mechanic’s lien statute. Therefore he is not in a position to charge the property with a lien for the work done and material furnished on the premises secured by complainant’s four trust deeds from Nielsen. Therefore Thomas not having prosecuted his claim for a lien as provided by the mechanic’s lien statute, he is not entitled to any relief in this proceeding, and the order of the chancellor dismissing his claim for want of equity was without error.

No. 33,925.

V. The Claim of James A. BlaeJc Hardware Company for a Mechanic’s Lien.

The record as to the Black Hardware Company is practically the same as that of George Thomas. It took no steps towards preserving its lien which it had under the mechanic’s lien statute. ■ Therefore it had no standing in the trial which entitled it to a mechanic’s lien upon the premises in complainant’s foreclosure proceeding. Therefore the chancellor was unable to award- any relief and the order dismissing the claim for want of equity was proper.

The action of the chancellor in dismissing for want of equity the intervening petitions of Liberty Supply & Lumber Company, Fred M. Heinkel, Alfred Jones, George Thomas and James A. Black Hardware Company, and taxing the costs against the defendants last mentioned, was without error.

The decretal order dismissing the intervening petition of Liberty Supply & Lumber Company for want of equity is without error, and is therefore affirmed.

Affirmed.

Wilson, P. J., and Ryner, J., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Harry J. Stoops for use of Albert Pick & Company, Plaintiff in Error, v. Lake View State Bank, Defendant in Error.
    Gen. No. 33,714.
    Opinion filed May 28, 1930.
    Rehearing denied June 10, 1930.
    Ringer, Wilhartz & Hirsch, for plaintiff in error; Samuel E. Hirsch and Sidney J. Wolf, of counsel.

      Harry E. Hurlbut and Samuel B. King, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court of Chicago, discharging a garnishee.

On February 4, 1927, Albert Pick & Company recovered a judgment for $21,994.92 and costs against Harry J. Stoops. Execution was issued and returned, “No property found and no part satisfied.” A garnishee summons, together with interrogatories, was served upon the garnishee, Lake View State Bank. It filed an answer on March 1, 1927.

The answer set forth that, at the time of the service of the garnishment writ and at the time of the filing of the answer, Stoops was indebted to the garnishee in the sum of $48,500, as evidenced by four promissory notes, one for $5,000, due January 26, 1927, one for $11,500, due May 26, 1927, one for $12,000, due March 14, 1927, and the fourth for $20,000, maturing March 21, 1927; that the notes were secured by collateral described as follows:

2 Promissory notes signed by Orvice La Bounty and D. E. Frost, 6%, for $10,000 each, due January 26, 1927........... $20,000.00

2 Promissory notes signed by Harry J. Stoops and D. E. Frost, 6%, for $5,000 each, due December 20, 1926.......... 10,000.00

36 — $500 First Mortgage real estate gold bonds Winona Beach Apartments, due May 1, 1927......................... 18,000.00

59 — $100 First Mortgage real estate gold bonds, Winona Beach Apartments, due May 1, 1927......................... 5,900.00

$53,900.00

and that the garnishee had no knowledge of the value of the collateral.

On October 8, 1927, the plaintiff was granted leave to contest the answer.

On November 28, 1927, pursuant to leave of court, the garnishee filed an amended answer in which it was alleged that Stoops was indebted to the garnishee in the sum of $43,500, as evidenced by one promissory note for $18,500, due November 8, 1927, one for $15,000, executed by the Standard Hotels Company (a concern controlled by Stoops, as disclosed by the evidence) and indorsed by Stoops, maturing November 21, 1927, and two notes for $5,000 each, and each maturing September 7, 1927. The answer further set forth that to secure the indebtedness Stoops had deposited as collateral with the garnishee:

“1. Promissory note signed by Orvice LaBounty, Harry J. Stoops and D. E. Frost, for $20,000 due February 14, 1928”;

that the collateral was at the time of the service of the writ and at the time of the filing of the answer, in the possession of the garnishee; that the garnishee had no knowledge of the value of the collateral, and that Stoops paid $30,000 on account of the indebtedness since the filing of the first answer, but in order to secure this payment, the garnishee was obliged to surrender the Winona Beach Apartments bonds of the value of $23,900.

On January 31, 1928, the garnishee, by leave of court, filed a third amended answer. It set forth the substance of the first and second answers. Attached to it were a number of exhibits.

On February 23, 1928, by agreement of the parties, an order was .entered referring the cause to William A. Doyle to hear evidence and report his conclusions as to the value, on April 22, 1927, of the bonds described in paragraphs 12 and 13 of the second amended answer of the garnishee. Although the abstract makes no mention of the paragraphs referred to, we assume that the bonds in question were the Winona Beach Apartments bonds, of the face value of $23,900. The master filed a report, in which he found the value of the bonds, on April 22, 1927, to be at least $21,510, without the interest coupons. The report was approved by the court.

At the conclusion of the trial the court made certain findings of fact which we consider to be supported by the evidence and sufficient to present the issues of law controlling the disposition of the cause. The first finding was that at the date of the service of the garnishment summons, the garnishee had in its possession the collateral described in its first answer; that prior to November 28, 1927, the date of the filing of its second answer, the garnishee accepted a promissory note for $20,000, due February 14, 1928, executed by Orvice LaBounty, D. E. Frost and Harry J. Stoops, in lieu of the two promissory notes for the sum of $10,000 each, maturing January 26, 1927, and signed by Orvice LaBounty and D. E. Frost, and that prior to November 28, 1927, the garnishee accepted two promissory notes executed by Stoops and Frost for $5,000 each, due September 7, 1927, in lieu of the two notes for like amounts, executed by the same parties, and due December 20, 1926.

The second finding was that the bonds of the Winona Beach Apartments were paid in full, with interest, on May 12, 1927, at which time their fair cash value was $24,736.50.

The third finding was that the securities described in the answer of the garnishee, filed on January 31, 1928, were of a value of $5,400 in excess of the amount owed by the judgment debtor to the garnishee on the date of the service of the garnishment summons.

The fifth finding was that, on April 22, 1927, the garnishee released to the judgment debtor the Winona Beach Apartments bonds.

The sixth finding was that the garnishee “made additional loans to the judgment debtor as late as January, 1928.”

These findings were given at the request of the plaintiff. It also submitted a finding numbered four which was refused. The court did not err in refusing it. The plaintiff also requested the trial court to hold certain propositions as the law controlling the decision of the case. They were all refused. It is deemed unnecessary to quote or state the substance of them because we are of the opinion that the trial court arrived at the correct conclusion and that the rights of the parties are governed by the garnishment statute.

Section 21 of the Garnishment Statute, Cahill’s St. ch. 62,' ft 21, provides that:

“When it shall appear that such goods, chattels, choses in action, or effects in the hands of a garnishee are mortgaged, or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an order of the court or justice of the peace, for that purpose, to pay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action and effects, in the manner before provided, to the officer who holds the execution.
Section 24 of the same statute provides as follows:
“When it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to the defendant, with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien' thereon, and may authorize the garnishee to sell any such property, or collect any choses in action, and account for the proceeds thereof; or, if the proceeding be in a court of record, the court may appoint a receiver to take possession and sell, collect or otherwise dispose of the same, and make all orders in regard thereto which may be necessary or equitable between the parties.”

In the instant case the plaintiff made no attempt to comply with either one of these sections. Its counsel say in their briefs that they “offered in open court several times to pay the defendant in error (the garnishee) the balance owed by the judgment debtor, provided that the defendant in error would produce all of the collateral held by the defendant in error at the date it was served with the garnishment writ.”

The only evidence of any tender is a colloquy between court and counsel at the conclusion of the trial as follows:

“Mr. Wolf: It doesn’t have to buy it at that price, but we can come in and we can say, we want to pay the $48,500, and we want the collateral.
The Court: Tou have not done it.
Mr. Wolf: We can do it right now.
The Court: But you are not doing it.
Mr. Wolf: We are willing to do it, but the evidence says the collateral is out of their hands. We are willing to pay the $48,500.
The Court: If you came in with some offer to pay $48,500 and the Court entered a rule on them to bring in this collateral and deposit it here so the exchange could be made, and it appears in any such proceeding as that that they have disposed of it, I could then ascertain the value of that collateral and charge them with the difference, but I don’t think I am at liberty to—
Mr. Wolf: I intended originally to make a tender of $48,500 with interest, and then after looking up the authorities I find that a tender is not necessary where it appears that it absolutely would be useless to make such a tender, as in this case. They have released the bonds, and the evidence shows that those bonds have all been duly canceled.”
and again :
“Mr. Wolf: I explained to the Court, in my argument, that we were willing to tender the amount of $48,500, upon receiving the collateral—
The Court: I don’t know how to give it to you, in the state of the record.
Mr. Wolf: I want to state right now that we are still willing to pay the $48,500, plus interest, upon receiving all the collateral described in the defendant garnishee’s answer.”

It is evident that sections 21 and 24 of the Garnishment Act were designed to give remedies to a judgment creditor against a pledgee of property of the judgment debtor which he would not otherwise have. In the case at bar the garnishee, being a pledgee, owed no obligation to the judgment creditor other than that imposed by the statute. Until the judgment creditor invoked the provisions. of the statute, the garnishee had the right to protect itself by accepting full or partial payment of the indebtedness owed. Until payment was made it was not obliged to sell the collateral or foreclose its lien if either was likely to result in a financial loss to it.

The garnishee filed its first answer on March 1,1927, in which it disclosed the collateral held by it as pledgee, including the $23,900 par value of bonds of the Winona Beach Apartments. The other collateral consisted of notes past due. The bonds were due May 1, 1927. They were surrendered on April 22, 1927, upon proper tender and demand, to Stoops. As we construe the garnishment statute, it does not permit dilatory tactics on the part of a judgment creditor. He has no right to wait indefinitely before availing himself of his rights under the statute. Otherwise the garnishee could be compelled to hold collateral that was depreciating in value and to refuse tenders of payment from the judgment debtor, until the judgment creditor saw fit to proceed to enforce his remedies under the' statute. The plaintiff had ample opportunity to protect itself but never undertook, at any time, to avail itself of its rights under the statute.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Wilsoh, P. J., and Holdom, J., concur.


text:
    William Shea, Appellee, v. John Cassidy, Sr., Appellant.
    Gen. No. 33,772.

      Opinion filed May 28, 1930.
    Freeman, Mason, Igoe & Flaherty, for appellant; George H. Mason, of counsel.
    Michael J. Sullivan and Vernon W. Foster, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

On Sunday evening, October 3, 1926, the defendant shot the plaintiff in the arm. While there is some evidence that the injury was permanent, the principal issue presented by this appeal is whether the punitive damages allowed were excessive. The jury assessed the damages at the sum of $50,000. The plaintiff agreed to a remittitur of $20,000. The trial court entered a judgment in favor of the plaintiff for $30,000. The defendant appealed.

The plaintiff kept company with the defendant’s daughter from some time in August 1924, until the shooting took place. He was a frequent visitor at the home of the defendant until January 1, 1926. Some altercation took place on the latter date which resulted in his being ejected from the home of the defendant. After that he never entered the premises. The defendant testified that the plaintiff was drunk and annoying the girl who was washing the dishes. On cross-examination he said that the plaintiff annoyed the girl, Bridget McCourt, by “kidding” with her and breaking dishes. He admitted pushing the plaintiff out of the apartment but says that the latter struck him and broke his glasses.

The plaintiff testified that he went into the kitchen, merely to ask Bridget how she liked the States, as she had just recently come from Ireland; that the defendant told him to get out and kicked and struck him. In rebuttal he said that he had one drink of whiskey which he got in the defendant’s home. The defendant was a former saloonkeeper. He further said that he did not put his hands upon the defendant or break his glasses. Bridget Woods, formerly Bridget McCourt, testified that she came to Chicago with the defendant’s sister-in-law on January 1, 1926, and stayed at the home of the defendant for a short time; that the' plaintiff asked if she liked this country; that he did not annoy her in any way and that he was not intoxicated.

The plaintiff after January 1, 1926, continued to see the defendant’s daughter. lie testified that they made appointments over the telephone and that they attended the same church. ■

The defendant lived in the third apartment in a building located at 7214 South Shore Drive, in the City of Chicago. On the evening in question the plaintiff met the defendant’s daughter at a nearby drug store. He had previously telephoned her. Her brother first answered the telephone and according to the plaintiff’s testimony he was very gruff. She finally answered and met the plaintiff at the drug store. He asked her why she didn’t put on a certain dress that he was fond of. They then went to the apartment so that she could change her costume.

According to the testimony of the plaintiff he accompanied her to the door of the vestibule and told her that he would meet her at the “South Shore View” but that she asked him to wait. That he went back tó the main sidewalk leading into the entrance of the building when she suddenly exclaimed, “My Grod, look out”; that the son of the defendant, who weighed 200 pounds, sprang at him and attempted to strike him; that the defendant was immediately behind his son, armed with a gun, and fired when the plaintiff was facing him and only a short distance away; that the bullet missed him and he started running across the street when a second or third bullet pierced his arm. He further testified that he made no move towards either the defendant or his son and that he was unarmed.

Drew Eberson, a distinterested witness, witnessed the shooting. As abstracted, the substance of his testimony was:

“As I got in front of this apartment building, there were three people came out, two men and a girl; one was without his shirt, in his B. V. D.’s and he immediately commenced slugging and hit this one fellow and the girl screamed and tried to pull them apart, and the boy in his coat fought back a little, and he was rushed back to the parkway. About a minute of that and the apartment door opened and the older man came out with a gun in his hand and almost immediately he started to fire, and they separated and one boy stood back in the parkway and (he) fired two or three shots at him. I thought they were blanks because he didn’t drop or anything. He was not 15 feet away. Finally he turned and ran across the street and down the sidewalk, and the old man ran after him and fired one shot while running and I ran after him. I thought he was a thief or something. I stopped him 100 feet away and he turned around, and I asked him what the trouble was and he said, ‘I’ll kill that-.’ ”

He further testified that the plaintiff was not armed.

Terrence N. Kelly, a police sergeant, testified that he heard two or three or four shots fired; that he met the plaintiff running down the street who said he was shot in the arm; that the defendant did not deny shooting the plaintiff; that the son went into the front room of the defendant’s apartment and got the gun from under the cushion of a chair and gave it to the witness; that all of the chambers of the gun were loaded; and that the defendant said that the plaintiff had a gun which he threw away at the corner but that he and another officer searched the surrounding’ premises for a gun but were unable to find one.

Bridget Woods, formerly Bridget McCourt, testified that on October 3, 1926, she went to the defendant’s apartment between three and four o’clock in the afternoon and remained there until two o’clock the.following morning; that Mary Cassidy, the defendant’s daughter, left the apartment, about eight-thirty in the evening; that about half an hour later the doorbell rang and the son of the defendant went down to answer the door; that he came back and said, “Papa, get the gun, it’s Bill”; that he had already gotten the gun and both ran downstairs; that she looked out of the window, saw some people running down the street and heard four or five shots fired; that the defendant and his son came back upstairs, reloaded the gun, and went downstairs again and that when the police officer arrived the son took the gun from his father and hid it under the seat of the davenport but later turned it over to the officer.

There was some medical testimony introduced on behalf of the plaintiff as to the extent and permanency of the plaintiff’s injury, but we deem it unnecessary to discuss this evidence because it is evident from the amount of the verdict and the judgment of the court that the damages assessed were punitive and not compensatory.

John Cassidy, Jr., son of the defendant, testified that he was 28 years old, five feet and seven inches in height and weighed about 200 pounds; that he had been a marble cutter for about six years and prior to that time was a taxicab driver; that on the evening in question the plaintiff called upon the telephone at 7:30 and said, “I am coming over and get you and your father”; that he called his father two bad names and said, “I am coming to get you with a gun”; that he told the conversation to his father and he said, “Stay home tonight and protect me ’ ’; that he heard the doorbell ringing incessantly and that he went downstairs, possibly five or six steps from the bottom and saw the plaintiff with his left hand on the bell, “laying over in a drunken manner.”

He further testified that he immediately ran upstairs and said, “Pa, here is Shea”; that he then went down again, “and started to humor the man” and asked him, “why are you going to shoot my father”; that the plaintiff said, “Come out here”; that during the struggle “I went ahead and saw his coat pushed back and I saw a revolver in there”; that the witness immediately ran upstairs and said, “Look out, Pa, he’s got a gun”; that the plaintiff ran towards his father to shoot him; that his father shot at the plaintiff and the latter ran four or five feet and ran outside the building and across the lawn, and that his father then fired two shots in the air.

On cross-examination he testified that to gain admittance to the defendant’s apartment, it was necessary to pass through two doors and that the inner door was always locked; that he opened the inner door and stepped out where the plaintiff was ringing the bell; that when the plaintiff telephoned he asked for Mary and that he replied, ‘ ‘ She is not here ’ ’; that the plaintiff then said, “I am going over to get your son of a B. father and I am going to get you if you monkey around”; and that he was excited and did not see his sister at any time during the affray. The plaintiff and the witness Eberson both testified that the witness’ sister was present.

The witness further said that he knew that the plaintiff was affiliated with a certain “gang,” naming the leader of it, and had threatened his father with them; that when the plaintiff was ringing the doorbell the witness went out and asked “what was the idea of ringing the bell”; that the plaintiff then grabbed hold of him and “was about to push the gun” and then the witness ran and said, “Pa, look out, he has got a gun”; that as he ran upstairs his father was coming down with a gun; that when he engaged in a scuffle with the plaintiff he saw a gun in the latter’s right hand covered over with a “spring coat,” and that he did not get his father’s gun for the police officer and that, so far as he knew, the gun was not reloaded. But the officer, Bridget Woods and the defendant all testified that he delivered the gun to the officer.

The defendant testified that he was about 68 years of age and was a salesman for an insurance company ; that on the evening in question he heard the telephone ring and some loud words used and that his son came over to him and said, “Shea is on the phone.” He then relates what happened as follows:

“Well, my son went downstairs and the bell rang and my son went downstairs and he said Shea was down there after the bell rang and he came up and told me. And of course I stuck my gun in my pocket and went downstairs and met Shea tusseling with my son in the hallway. So when I approached the outer hallway, Shea draws a gun on me, so I draws mine and shot him in the hand, first shot, and then he ran out the door and I shot two more in the air and he ran across the street on the east side of the drive there. It was pretty congested, so I didn’t want to go any further than that, so I shot in the air and called to the police. ’ ’

On cross-examination he was asked if he didn’t want to kill the plaintiff. He replied, “Well, I am glad I didn’t.” He was pressed to answer a question as to whether, at the time, he wanted to kill him. His answer was, “Well, he came there to kill me.” He further testified that after shooting the plaintiff in the arm he followed him for about 15 feet on the lawn, and that he then went upstairs and put three new cartridges in his gun because he was afraid of the plaintiff. Finally when asked why he came downstairs again with the reloaded gun he said, “In case he would come to get me he might have another one in his pocket,” and “He might be coming back and if he did and bothered me on my premises I would give him another one the same as I did before.”

The plaintiff, in rebuttal, testified that he did not enter the vestibule of the building in which the defendant’s apartment was located; that he had nothing to drink on the day in question; that he made no threats over the telephone and that he never owned a gun or pistol in his life, and that he did not have one in his possession on October 3, 1926.

The first point urged as ground for a reversal of the judgment of the trial court is that the verdict was outrageously excessive and that the plaintiff admitted that it was excessive to the extent of $20,000 by consenting to the remittitur in that amount. There is much discussion about the damages actually sustained by the plaintiff, but that was not the sole basis before the jury in determining the amount of their verdict. They were instructed that they could assess punitive damages and it is evident that they did so.

But, it is contended that, considering the evidence in a light most favorable to the plaintiff, the amount of the defendant’s financial worth did not exceed $220,000 and that the damages assessed are out of proportion with this amount. There is much argument in counsels’ brief about the method of proving values of property. In the instant case, however, the exact value of the defendant’s property holdings was not in issue. Furthermore, the defendant did not see fit to testify as to its value. If it was worth less than $220,000 he could have said so.

A number of cases are cited where the reviewing courts of this State have reversed the trial courts because of the allowance of excessive punitive damages, alone, or coupled with improper remarks of counsel or other errors. One was the case of the seduction of a man’s wife. Another was a case of malicious prosecution. The other cases are of like nature. No case was cited, however, where one man, with malice in his heart, attempted to take the life of another man, and without provocation. Punitive damages are allowed, not for the purpose of compensating the plaintiff but to deter the defendant from- committing a like offense in the future. No case has been brought to our attention which is parallel with the instant case.

According to his own admission, the defendant intended to Mil the plaintiff. After shooting at him he followed him for some distance. He says he shot him in the hand when the plaintiff drew Ms gun, but the evidence shows that the bullet entered the back of the plaintiff’s arm. This corroborates his statement that he was shot while running. After shooting the plaintiff the defendant admitted that he reloaded the gun and came downstairs with the intention to “give him another one” if he came and bothered the defendant on his premises. The undisputed evidence shows that to gain entrance to the defendant’s apartment the plaintiff would have had to pass through two locked doors. A man’s home is his castle and he has the right to protect it against invasion but he has no right to go out into the street and attempt to kill a man who has done no act indicating that he has the intention of making forcible entry of the home. The jury evidently believed that the plaintiff was unarmed. The testimony of four witnesses and the facts and circumstances indicate strongly that he did not have a gun.

Complaint is made of instruction number 9 given at the request of the plaintiff because it authorized the jury, in considering the amount of damages to be assessed to take into consideration his bodily suffering and future suffering, when there was no pleading or evidence to warrant the consideration of such an element of damage. The point is without merit. The pleadings of the plaintiff charged the defendant with shooting him in the arm. It is conceded that he was shot. The plaintiff testified that he had pains for some time but that they were not very serious. But the issue is whether punitive damages in the amount allowed by the court should have been assessed and whether the plaintiff would probably suffer in the future as a result of the wound, was of minor consequence. That he suffered pain at the time he was shot may be inferred. "What has been said with reference to this instruction applies to the objections to other instructions. There is no complaint about the instruction given with reference to the fixing of punitive damages.

It is also urged that the judgment should be reversed because of improper conduct on the part of counsel for the plaintiff. In his opening statement plaintiff’s counsel said that the defendant was worth a half of a million dollars and extensively in the mortgage business. There was some evidence tending to show that he was worth $220,000. If he was not worth that amount he could have testified as to his actual worth. He also asked the defendant if he retained in his home a very large supply of liquor from the place of business which he formerly conducted. An objection to the question was promptly sustained and no answer was given. Again he asked the plaintiff whether, at the time of the affray, he expected to marry the defendant’s daughter. Before he asked the question he warned the witness not to answer until counsel for the defendant was given an opportunity to object. An objection was interposed and sustained. We do not consider that the conduct of counsel was such as to warrant a reversal of the judgment of the trial court.

It is evident that neither the jury nor the court believed the testimony of the defendant and his son except in so far as it amounted to a confession of guilt. The version of the facts given by them is highly improbable.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Wilson, P. J., and Holdom, J., concur.


author: Mr. Presiding Justice Barnes

text:
    S. D. Friedman, Trustee for the Benefit of the Creditors of Max Cohen, Defendant in Error, v. Barnett Kappel, Plaintiff in Error.
    Gen. No. 34,164.
    Opinion filed May 29, 1930.
    William Rifkind, for plaintiff in error.
    Dulsky, Friedman & Dulsky, for defendant in error; Louis Dulsky, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ seeks review of a judgment in replevin based upon a stipulation of the facts.

It appears from the stipulation that prior to April 23, 1929, Kappel was the lessor, and Cohen the lessee, of a certain store under a form of lease hereinafter referred to; that on April 22, Cohen made an assignment for the benefit of his creditors to the plaintiff Friedman, as trustee, for their benefit, and that on April 23, Friedman took possession of all assets and of the store and continued possession thereof until May 16, 1929, when the assets were sold and the store delivered to Kappel; that said assignment was a bona fide transfer of said property for the benefit of Cohen’s creditors; that while at the time of the transfer the monthly rental of $150 was owing for the months of March and April, a claim therefor is not involved herein; that Kappel at no time affirmatively consented to be bound by said assignment, and at no time prior to May 16, did he cancel said lease; that on May 1, the rent of $150 for May became due and remained unpaid on May 16; that on that date Kappel levied a distress warrant on part of the property which had been so assigned and transferred, and a summons was issued for “the sum of $150”; that Kappel released the property distrained to Friedman and allowed him to sell the same upon agreement that this suit would be filed to test the right of possession to the property distrained.

The main point urged for reversal is that the right of the landlord to distrain the property in the hands of the assignee may be enforced to the same extent as when in the hands of the assignor. In support of this proposition we are cited to the ease of O’Hara v. Jones, 46 Ill. 288, where it was held on a similar state of facts ' that the assignee takes the property assigned for the benefit of creditors as a volunteer “and subject to all liens to which it is then liable, ’ ’ and that the landlord “retains his prior lien, with a right to enforce it to the same extent that it previously existed.” The basic theory of the decision is that the landlord had a lien on the lessee’s property prior to the assignment which he could thus enforce.

It was held in Kellogg Newspaper Co. v. Peterson, 162 Ill. 158, that at common law the goods of a tenant were free from a landlord’s lien until they were actually taken under a distress warrant, and that except as to crops grown or growing on the demised premises the landlord in this State can acquire a lien only by commencing such proceedings.

In Powell v. Daily, 163 Ill. 646, upon a like state of facts to those in the O’Hara case, where distraint was made by the landlord after an assignment by the lessee for the benefit of his creditors and the assignee had taken possession of the property, it was again said that with such exception the landlord has, under the law, merely a right to distrain, and that his lien with said exception does not attach until after the goods have been levied upon under the distress warrant. Of his right to distrain in that case the court held that the landlord did not avail himself in time, “for the assignee had become invested with the title to and the possession of the goods several days before the distress warrant was issued.” The court cited cases where the distress warrant was levied after title had passed by sale of the goods to a bona fide purchaser, thus applying the rule where title to the property distrained has passed to an assignee.

We are, therefore, bound to hold that the landlord 1 acquired no lien by virtue of his distress warrant issued after the assignment and the assignee had taken possession of the property.

It is contended by plaintiff in error that as the assignee took the property as a volunteer and subject to prior liens, as held in the O’Hara case, he took the same subject to the lien provided for in the lease, as follows :

“Meaning and intending hereby to give the said party of the first part, his heirs and executors, administrators or assigns, a valid and just lien upon any and all of the goods, chattels and other property belonging to said party of the second part, as security for the payment of said rent in the manner aforesaid, anything . hereinbefore contained to the contrary notwithstanding. ’ ’

It is contended by defendant in error that the provision is too indefinite to create a valid lien on any property, citing Chicago Title & Trust Co. v. Corporation of Fine Arts Bldg., 288 Ill. 142, and Borden v. Croak, 131 Ill. 68, where the effect of somewhat similar clauses was considered. We deem it unnecessary to construe the cited clause in this case. If it creates a lien it contemplates its enforcement by a proceeding in equity. The proceeding in the case at bar is one predicated solely on the landlord’s common-law right to distrain for rent due and unpaid and not for a lien provided for by contract.

The judgment is affirmed.

Affirmed.

Scahlah and Gbidley, JJ., concur.


author: Mr. Justice Gridley

text:
    Warshawsky & Company, Complainant and Appellee, v. A. Warshawsky & Company, Inc. et al., Defendants and Appellants.
    Gen. No. 33,840.

      Opinion filed May 29, 1930.
    Litsinger, Healy & Reid, for appellants; James A. O’Callaghan, of counsel.
    Joseph Rosenberg, for appellee; Philip R. Toomin, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an unfair trade competition case. Complainant’s bill, filed March 11, 1929', prayed for in junctional relief against defendants. On July 6, 1929, after a protracted hearing before the chancellor during which a mass of oral and documentary evidence was introduced by the parties, the court entered the decree appealed from, in which it is adjudged that the defendant, “A. Warshawsky & Company, Inc.,” an Illinois corporation, its officers, attorneys, agents, etc., be and they are perpetually enjoined:

“1. From using the name 'A. Warshawsky & Company, Inc.’
“2. From using, in the advertising, disposition, distribution or sale of new and secondhand automobile accessories, replacement parts, etc., or in the sale and purchase of secondhand automobiles for wrecking purposes, or upon any letterheads, catalogues, literature, signs, advertising matter, or otherwise, or verbally, the word ‘Warshawsky’ in its secondary sense as hereinbefore defined.
“3. From holding out or representing that said defendant is a representative of, or in any way connected, with complainant, ‘Warshawsky & Co.,’ in the sale and purchase of secondhand automobiles, trucks and truck parts, accessories and replacement parts, and the wrecked car business.
“4. From copying portions of advertisements of complainant, painting or marking the same on its windows, and adding thereafter the words ‘as advertised,’ in pursuance of a policy of unfairly competing with complainant.
“5. From engaging in unfair competition by copying the advertising methods of complainant, by giving away similar key rings at or about the same time complainant is extensively advertising its business and giving away its key rings, in pursuance of a policy of unfair competition.
“■6. From engaging in unfair competition by simulating the signs and color schemes adopted by complainant and used by it in connection with its said business, and appearing on its said premises at 1915-35 South-State Street, Chicago; and from simulating the appearance, construction, color scheme and design of the tow trucks operated by complainant, all in pursuance of a policy of unfair competition.”

And it is also adjudged that the defendants, Arthur Warshawsky, Charles Warsháwsky and Sarah Warshawsky, their employees, attorneys, agents, etc., be perpetually enjoined from doing acts substantially as above stated in paragraphs 3 to 6, inclusive. The language of the injunction as to them, concerning the use of the defendant corporation’s name and of the word “Warshawsky,” is different from that in paragraphs 1 and 2 as above stated, and is as follows:

“From using the names ‘A. Warshawsky & Co.,’ or ‘A. Warshawsky & Company,’ in print, script or writing, in any form whatsoever.
“From using, in the advertising, disposition, distribution or sale of new and secondhand automobile accessories, replacement parts, etc., and in the buying of secondhand automobiles and trucks intended for wrecking purposes and new and used automobile accessories, the word ‘Warshawsky,’ either alone or in combination or in corporate name, in its secondary sense as hereinbefore defined, unless there is added to said name, in letters of the same size, type, script or writing by which said name is displayed, the words ‘not connected with the original Warshawsky & Co.’ ”

In the decree the court made many findings, some of which are in substance as follows:

That about May 21,1915, complainant was organized as an Illinois corporation, with-the name “Warshawsky & Co.” for the purpose of “buying, selling and dealing in, . . . plumbing, electrical and heating supplies, rags, rubber, iron and metal goods, radiators, gas fixtures, pipe fittings and electrical supplies, ’ ’ etc., with capital stock of $2,000, and with principal place of business at Nos. 1925-29 (now 1915-35) South State Street, Chicago; that Israel Warshawsky has been and is now its president, and Nellie, his wife, its vice president, and the two are its principal stockholders; that in addition to its plumbing supply business it “pioneered in and developed” the purchasing of secondhand automobiles and trucks which it wrecks, — retaining such parts as can be resold, and that in the latter part of the year 1915 it began to purchase and sell stocks of automobile and truck parts and accessories; that its business is a “highly specialized and unique” one; and that it employs about 150 persons, many of whom are skilled mechanics.

That since its organization it has continuously advertised the name “Warshawsky,” and the products which it sells, by advertising compaigns in the Chicago newspapers, by circulars, catalogues, etc., and by advertisements in many magazines; that it issues two catalogues each year to 150,000 dealers and jobbers in the United States and Canada; that special catalogues and circulars are sent each year to about 25,000 retail customers; that its name and business have further been exploited and featured on the stage, by radio broadcasting, etc.; that for many years, during the month of June, it has advertised its “anniversary sale,” in newspaper and other advertisements, and the fact that key rings would be given to all purchasers at such sales; that it has expended each year large sums in advertising, the expense of which during the year, 1928, being $39,209; that its net sales during 1928 were $989,458; that it has maintained, and now maintains, large signs on its stores, yards and warehouses, advertising its name and business; and that it has been 'and is now operating motor trucks, and tow trucks, carrying the name “Warshawsky & Co.”

That in all of its advertising the name “Warshawsky,” and “Warshawsky & Co.” have been prominently featured and displayed; that the name “Warshawsky” has “acquired a secondary meaning” as applied to “replacement parts for automobiles and trucks, and the salvaging and wrecking of automobiles and trucks, and new accessories and parts for automobiles and trucks, sold by complainant”; that the name has become well known to persons, firms and corporations, having need for such replacement parts, new parts and accessories, and to those persons, etc., desiring to sell or purchase secondhand automobiles, trucks or parts; that such persons, etc., as well as the public generally, “have associated, and still continue to associate, the name ‘Warshawsky’ with the business conducted by complainant”; and that it is well known to the trade and to the public generally that any automobile or truck part, or accessory, can be replaced or found at complainant’s State Street store.

That defendant, Arthur Warshawsky, a resident of Chicago, is an older brother of Israel Warshawsky, president of complainant; that during the year 1911, and thereafter until February, 1914, Arthur was engaged in the junk business with his father, Louis, at No. 3227 South State Street, Chicago; that beginning in February,' 1914, he, individually, was engaged in the junk business at said address, under the name of “A. Warshawsky” or “Arthur Warshawsky,” up to about October, 1918; that in 1918 he and one Weller commenced a copartnership business, as “Warshawsky, Weller & Co.,” at No. 3021 South Michigan Avenue, Chicago, for the buying and selling of junk, metals and automobile accessories; that in 1919 he purchased all of Weller’s interest in the business and there individually continued it for a time; that about June 20, 1919, he sold to complainant all his stock and merchandise, and for about six months thereafter was not engaged in any business; that about January 1, 1920, he commenced the business of selling automobile supplies at his former location (No. 3227 So. State Street) under the name of “A. Warshawsky” or “Arthur Warshawsky”; that some time in 1923, he moved to No. 1621 South Wabash Avenue, and there conducted until 1928 an automobile accessories’ business, as well as that of wrecking new and used cars and selling new and secondhand replacement parts for automobiles; and that his business signs during the period read “Arthur Warshawsky,’’ and in some instances after 1924, “A. Warshawsky & Co.”

That about February 1, 1928, Arthur changed his business location to No. 3220 Ogden Avenue, Chicago, and there conducted the same business, hiring six employees ; that he caused the signs upon the building and windows to read “A. Warshawsky & Co.,” — “the letter ‘A’ being about one-third the size of the other letters”; that he installed an electric sign, bearing the words in small size “auto-parts and accessories,” and in the middle of the sign the name “A. Warshawsky & Co.”; that as originally installed the letters of the word “Warshawsky” were nine inches in height, while the “A” and the “& Co.” were only six inches; that shortly thereafter the size of the letters of the name in the sign was increased to twenty inches, while the size of the “A” and the “& Co.” was not increased; that, although the letter “A” in the sign was designed to be illuminated, yet he “did not, and does not now, illuminate said letter ‘A’, and when said sign is illuminated only the name ‘Warshawsky & Co.’ is visible and prominently displayed”; that the adoption and affixing of said signs and the color schemes thereof, because of their close similarity to the signs and the color schemes theretofore adopted and used by complainant “were calculated to deceive the public into believing that said defendant’s place of business was a branch store, or in some way connected with complainant’s place of business at 1915 South State Street,” and that defendant’s acts as to said signs “were intended by him to mislead the public and to secure to him a benefit and advantage from complainant’s good will and reputation, in pursuance of a policy of unfair competition”; and that after the organization of defendant corporation, as hereinafter men-tinned, and after it took over Arthur’s said business, it adopted the same signs and color schemes and continued to use the name, with the intention of deceiving the public- and for the purpose aforesaid.

That about November 8, 1928, defendants, Arthur Warshawsky, Sarah (his wife) and Charles (his son), caused to be organized an Illinois corporation, known as “A. Warshawsky & Company, Inc.,” to engage in the business of “buying, selling, manufacturing and dealing in all kinds of automobile parts, machineries and accessories, the wrecking of automobiles,” etc.; that it succeeded to the business and assets of Arthur at Nos. 3218-20 Ogden Avenue, and has since there conducted the business; that its name is so similar to that of complainant’s adopted in 1915, as to be a violation of a provision in section 24, chapter 32, of the Illinois statutes, prohibiting the organization of a corporation in this State, having the same or a similar name as that of another corporation previously authorized to do business in the State; that on February 7, 1929', the Secretary of State of Illinois notified defendant corporation by letter that its particular name had been granted through a mistake, and suggested that it change its name, because of its similarity to complainant’s; but that defendant corporation refused to comply with the suggestion.

That Arthur, from the time he moved his place of business-to No. 3220 Ogden avenue, commenced to operate a certain tow truck, on which the name “A. Warshawsky & Co.” was painted- — the letter “A” being about one-third the size of the letters forming the word “Warshawsky”; that the name was painted on a curved or semicircular board affixed above the body of the truck; that the shape of the board, the lettering thereon and the color scheme thereof were similar to those appearing on the tow truck operated by complainant; that the same were designed, used and operated by Arthur “for the purpose of deceiving the public into believing that his tow truck was a tow truck of complainant’s and for the further purpose of wrongfully benefiting from the good will, business and reputation established by complainant”; and that defendant corporation, since its incorporation, has operated, and is n'ow operating, the same tow truck, unchanged in appearance, for the same unlawful purposes.

That when Arthur moved his business to No. 3220 Ogden Avenue about February, 1928, he “commenced a policy or scheme” of copying portions of complainant’s advertisements, inserted from time to time in Chicago newspapers, “by painting or chalking some of the articles of merchandise, so advertised by complainant, on his Ogden Avenue store windows at the same prices as those advertised by complainant and adding thereto the words 6as advertised’ ”; that these acts “were calculated to deceive the public into believing that defendant’s place of business was a branch store of, or in some way connected with, complainant”; that he did these acts intentionally for the purpose mentioned ; and that defendant corporation, since its organization, has continued to do the same acts, and for the same unlawful purpose, with the knowledge of defendants, Arthur, Charles and Sarah Warshawsky.

That since February, 1928, Arthur instructed his salesmen or assistants, when a purchaser inquired for an article of merchandise which was not then in stock in the Ogden Avenue store, to request a deposit for the article and to inform the purchaser that it would be procured at the “main store,” or at the “State Street store”; that these instructions were followed, and thereby the purchasing public were led to believe that the Ogden Avenue store was a branch store of complainant, to its great injury; that this policy has been pursued by defendant corporation and with the knowledge of the individual defendants; and that, as a result, much confusion has arisen in the minds of the purchasing* public, to complainant’s damage.

That about June, 1928, Arthur commenced the distribution of key rings as souvenirs to all persons who made purchases at the Ogden Avenue store; that these rings were accompanied with a celluloid tag upon which was printed the name “A. Warshawsky & Co.”; that they were distributed when complainant was conducting an advertising campaign in Chicago newspapers, using full page advertisements, announcing its anniversary sale and stating that key rings would be given away to all purchasers at such sale; and that Arthur’s said acts were part of his plan or scheme to deceive the public and were done for the purpose of securing the advantage of complainant’s good will, advertising and reputation.

In complainant’s bill, in addition to making charges against defendants of unfair trade competition substantially as found by the court as above, it is alleged that, when in November, 1928, the individual defendants organized the corporation of the name “A. Warshawsky & Company, Inc.,” they knew that the name was similar to complainant’s corporate name and that they could not legally incorporate a company under such name; that their act in so doing was a part of their “scheme and conspiracy to deceive and defraud the public and injure complainant in its business”; that, in the securing of a charter with that name, they “resorted to fraudulent methods in that they secured the fraudulent action of some employees in the office of the Secretary of State, who temporarily withdrew from that office the files and records showing the existence of complainant corporation under the title ‘Warshawsky & Co.’ ”; that complainant was not aware of the organization of defendant corporation until in January, 1929, “whereupon the attention of the Secretary of State was called to the fact that complainant was in good standing and that Arthur Warshawsky and his associates had no right to do business under the name of ‘A. Warshawsky & Company, Inc.’ ”; and that thereupon the Secretary of State notified defendant corporation by letter, suggesting that it change its name, but that it refused to comply with the suggestion. On the trial no evidence was introduced showing fraud on defendants’ part in the organization of defendant corporation or in the procuring of its charter. It, however, appeared that on February 7, 1929 (about one month before complainant’s present bill was filed), the Secretary of State wrote defendant corporation, saying that, inasmuch as its name is 11 somewhat similar” to that of complainant corporation and both are engaged in the same line of business, “complaint has been made to me that you are infringing on the name” of complainant corporation; and the Secretary of State suggested that, “in order to save expense of litigation, it would be to your advantage to change your name. ’ ’ After the letter had been referred to the attorney for defendant corporation for advice and reply, he, with authority, replied to the effect that “two brothers were in the used auto business, both using their own names,” that both incorporated their respective businesses, that defendant company “feels that it is entitled to the same protection on its name as the former is,” and that “there is sufficient distinction in the names.” The letter concluded that defendant corporation “would be reluctant to surrender its corporate name, and would defend any court action to that end. ’ ’ It does not appear that any direct proceeding by State officials ever was commenced to compel defendant corporation to change its name or to surrender its existing charter.

Counsel for defendants contend that the decree appealed from should be reversed because complainant does not come into court with clean hands, and, hence, is not entitled to any equitable relief. The supporting-argument, as we understand it, is substantially that complainant’s present business is not warranted by its charter; that engaging in the used automobile accessories business, etc. constitute ultra vires acts; and that, even though defendants may be held to have engaged in some unfair competition, complainant has not legally been injured. We do not think that the conten- . tion is meritorious. Even if it can be held that complainant’s hands are unclean for the reasons as argued, defendants are in no position in this suit to complain. In the case of City of Chicago v. Union Stock Yards and Transit Co., 164 Ill. 224, 237, it is said:

“Counsel do not claim that a forfeiture of the charter may be declared in this proceeding, but insist that as it appears in the case that appellee is engaged in illegal acts in the use of its road it does not come into court with clean bands, and is not therefore entitled to equitable relief. We cannot accede to this view, but are of the opinion that the maxim invoked cannot have any just application to the facts of this case. If a defendant to a bill in equity brought by a corporation could defeat it by simply showing that the complainant had committed ultra vires acts, then no corporation so guilty could ever obtain equitable relief in any case. The maxim must have the same application as between individuals, and, as said in Bispbam’s Principles of Equity (p. 48), it ‘only applies to the particular transaction under consideration, fpr a court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. ’ The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation. (Citing cases.) If appellee has forfeited its charter by acts ultra vires, the State may enforce such forfeiture by an appropriate action, but the company cannot be denied relief in a proper case in a court of equity because of such acts.” (See, also, Carpenter’s Union v. Citizens Committee, 333 Ill. 225, 250.)

Counsel for defendants also contend that the decree should be reversed because the defendant, Arthur Warshawsky, was the prior user of the family name “Warshawsky” in connection with the automobile accessories, etc. business which is similar to that now carried on by defendant corporation, and that neither he nor defendant corporation can properly be enjoined, from using that family name by one who is a later user thereof in a similar business. While the evidence as to who was the prior user of the family name, in connection with the particular business involved, was conflicting, it appears that, after complainant corporation was organized and commenced doing business, Arthur, in 1919, sold to it all of the stock and merchandise of his then business and did not afterwards engage in any business for a period of about six months, when he re-engaged in substantially the same business. The question, however, who was the prior user of the family name in connection with the particular business involved, is not of controlling importance. The question rather is, whether Arthur, after he re-engaged in the business, and whether defendant corporation succeeding to that business, made an honest use of the family name. In Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, the court (p. 136) quoted with approval what is said in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 187, viz.:

“Every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name. . . . But, although he may thus use his name, he cannot resort to any artifice, or do any act calculated to mislead the public as to the identity of the business, firm, or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name.”

And the court in the Howe Scale Co. case further said (p. 136) that there was no practical distinction to be made between the use of such name in a firm or its use in a corporation, and that “it is dishonesty in the use that is condemned, whether in a partnership or corporate name, and not the use itself.” In L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88, 94, it is said:

“But, whatever generality of expression there may have been in the earlier cases, it now is established that when the use of his own name upon his goods by a later competitor will and does lead the public to understand that those goods are the product of a concern already established and well known under that name, and when the profit of the confusion is known to and, if that be material, is intended by the later man, the law will require him to take reasonable precautions to prevent the mistake. . . . There is no distinction between corporations and natural persons in the principle, which is to prevent .a fraud. ’ ’

In the present case the court, in particular findings as above stated, found in effect that in several ways the defendant corporation and the individual defendants had made and were making a dishonest use of the family name and had engaged and were engaging in a policy of unfair trade competition towards complainant. After reviewing the voluminous transcript we are of the opinion that these particular findings are sufficiently sustained by the evidence, and that the court was warranted in perpetually enjoining all the defendants from doing acts as stated in paragraphs 3 to 6, inclusive, in the decree as first above mentioned.

But we are of the opinion that paragraphs 1 and 2 of the decree, as to defendant corporation and also the three individual defendants, are too drastic and are unwarranted. In paragraph'!, as to defendant corporation, it is enjoined “from using the name ‘A. Warshawsky & Company, Inc. ’ ” In paragraph 1, as to the individual defendants, they are enjoined from using that name (not including the “Inc.”) “in print, script or writing, in any form whatsoever.” The individual defendants are officers and stockholders of defendant corporation. By said paragraph defendant corporation, which has an existing charter or franchise to do a particular and lawful business, is virtually prohibited from exercising its chartered powers unless it changes its name. Furthermore, the decree is entered in a collateral proceeding and not in a direct one brought by the State. By paragraph 2, as to defendant corporation, it is enjoined from using the name “Warshawsky” in the advertising, distribution or sale of the merchandise in which it deals, or in any signs, literature, advertising matter, etc. And by paragraph 2, as to the individual defendants, they are similarly enjoined from the use of the family name “Warshawsky,” unless accompanied, in letters of equal size, etc., with the words “not connected with the original Warshawsky & Go.” We do not think that the word “original” can be justified. In Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106, in a similar proceeding, the decree enjoined the use of the name “Alfred Johnson Skate Company” without the use of the words “not connected with the original Nestor Johnson Manufacturing Company.” Gur Supreme Court, however, said (p. 126) that “it is not necessary to enjoin entirely the use of the word ‘Johnson’ or the appellee’s corporate name. The object is to prevent the deception of purchasers, and the decree was sufficient for this purpose without the use of the word ‘original,’ which it directed should be used in the reference to the Nestor Johnson Manufacturing Company, required as a suffix to appellee’s corporate name. This word should be stricken out of the suffix which the decree required to be used in connection with appellee’s corporate name.”

Our conclusions are (a) that paragraphs 3 to 6, inclusive, of the decree, as to all defendants, should he continued in force; (b) that paragraph 1 of the decree (wherein defendant corporation is enjoined generally from using its corporate name and the individual defendants are enjoined generally from using such name or a similar one) should be eliminated; and (c) that paragraph 2 of the decree, both as to defendant corporation and the individual defendants, be so modified as to read substantially as follows: That defendant corporation, its officers, employees, agents, etc., and the three individual defendants, their agents, attorneys, etc., be perpetually enjoined from using, in connection with the business of defendant corporation as now carried on, in advertisements or on signs, stationery, etc., the name of defendant corporation “A. Warshawsky & Company, Inc.,” or any similar name in which the word “Warshawsky” is displayed, unless accompanied with the words “not connected with Warshawsky & Co., a corporation.”

Accordingly the decree of the superior court is affirmed in part and reversed in part, and the cause is remanded with directions to the superior court to enter a modified injunctional decree against defendants not inconsistent with the views herein expressed. No costs will be taxed in this court as against either of the parties.

Affirmed in part and reversed in part and remanded with directions.

Barnes, P. J., and Scanlan, J., concur.


text:
    Paul G. Johnson, Appellant, v. Lavanch D. Johnson, Appellee.
    Gen. No. 34,092.
    Opinion filed May 29, 1930.
    L. T. Pelnar and J. B. Bernard, for appellant.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In a proceeding for the annulment of complainant’s marriage with defendant upon the ground of her fraud, the court, after ex parte hearings, entered a decree on December 18, 1929, dismissing complainant’s bill for want of equity. The present appeal followed. Defendant has not appeared or filed a brief in this court.

In the bill, filed August 14,1929, complainant alleged that he is, and has been for more than a year, a resident of Cook county, Illinois; that he was married to defendant at Stillwater, Minnesota, on August 30, 1928; that they never thereafter lived together and the marriage never was consummated; that she immediately deserted him without cause; that such desertion was a part of a “preconceived plan,” formed by her prior to the marriage and unknown to complainant, “never to live with him as his wife and assume her marriage duties ’ ’; that immediately prior to the marriage, and for the purpose of deceiving him and inducing him to enter into the marriage contract, she made to him “false, deceitful and fraudulent statements and promises,” upon which he relied, that she would fulfil all her marriage obligations; that he was at all times ready, able and willing to comply with his marriage duties and provide a home for her; that after he discovered her fraud he never in any manner waived it; and that at the time of the marriage there was in force, and still is, a statute of Minnesota which provides that where the consent of either party to a marriage “has been obtained by force or fraud, and there is no subsequent voluntary cohabitation of the parties, the marriage may be annulled at the suit of the injured party and shall be void from the time its nullity is adjudged. ’ ’

Defendant was personally served with process in Chicago, on August 17, 1929, when she was on a visit to the city. She did not appear or file any pleading and was defaulted.

The certificate of evidence, as finally certified by the trial judge on the day the decree was entered, presents some extraordinary features. It discloses that there was a hearing on October 30, 1929, at which complainant was the only witness. He testified in substance that he was, and had been since 1925, a resident of Chicago; that he first became acquainted with defendant in 1921 while they were attending school at Far-well, Minnesota; that in August, 1928, defendant was employed in Minneapolis, Minnesota, and there was living at the home of an aunt; that on August 23,1928, complainant went to Minneapolis on a vacation trip, called upon defendant and was frequently in her company during the following week; that while they were having luncheon together on August 30, 1928, she proposed that they get married immediately, but that the marriage be kept secret for a few days until she notified her parents and friends; that he agreed to the proposal; that early that afternoon, immediately following the luncheon, they drove to Stillwater, Minnesota, procured a license, and were married at the home of a minister early that evening; that, returning to Minneapolis, they went to her home where they conversed about the future, — she telling him “to find an apartment” in Chicago and that she “would be down in a few days”; that the marriage was not then or ever consummated; that he then gave her $50 for her expenses to Chicago; that he left her about 11 o’clock, p. m., and departed for Chicago the following morning; that he has never seen her since; that for over two months following they corresponded frequently; that in his letters he continually urged her to come to Chicago and she in her letters kept “putting it off”; that he had “burned up” all of her letters, except one which he received “the last of November, 1928”; and that he did not thereafter attempt to see her.

The witness, being then handed a paper purporting to be a letter, further testified that “it was sent to me by my wife,” and that “it is in her handwriting and is signed by her.” Then follows in the transcript the following statement in brackets, viz.: “ (Whereupon said document, so offered in evidence as ‘complainant’s exhibit A,’ was admitted in evidence, and is made a part of the record hereof.) ” Then follows, as the next two pages, what purports to be an. original letter. The body is in ink handwriting; it is not dated, except the word “Tuesday”; it is addressed “Dear Paul” and is signed “Lavanch”; but it does not bear any identification mark of the reporter as to its being “complainant ’s exhibit A.” It is in part as follows:

“Received your letter this A. M. . . . I have been trying to decide just how to explain this to you. I can’t come to Chicago and live because I never did intend to — not even at the time we were married. I’ve . been' stalling around but now I really mean it. . . . All I wanted when I married you was to have the name of a married woman. Never meant to really be your wife and live with you as such. Right now I am happy as I am living like I’m single. I like my work and its easy to support myself. This way I can have all the privileges I want and yet have a married name. I hate to write this letter, but I may as well tell you the truth and get it over with. Now that you know it you can do as you like, but I have your name.”

Then follows further testimony of complainant to the effect that, just before defendant was served with process, he was informed that she was temporarily in Chicago stopping at a Chicago hotel, that he notified his lawyer of that fact, but that he did not see her while she was in Chicago. Then follows the statement by the court that the further hearing of the cause would be continued until November 9, 1929. Then follows the affidavit of Veronica H. Reynolds, sworn to on October 30 (the day of said hearing), that she is the reporter who took down in shorthand the evidence at the trial and that “the foregoing is a correct transcript of the same.”

The certificate of evidence also discloses that a fur- ' ther hearing was had on November 16, 1929. Complainant again testified, but his testimony does not show any additional facts bearing upon the charges in the bill. Thereupon complainant called as a witness Alvin B. Olson, .a resident of Chicago. He testified that he was a brother-in-law of complainant and had known him for 20 years; that he had known defendant since 1921; that he and his wife accompanied complainant to Minneapolis on the vacation trip in August, 1928; that while there he several times saw defendant, and on August 29,1928 (the day before the marriage), had a conversation with her; that he said 5‘Lavanch, why don’t you and Paul get married”; that she replied, “For one thing, Paul never asked me, and another thing, I have another fellow I like kind of well”; that he said, “Paul would make a very nice husband and I would be glad to see you settled”; that she replied, “I would like to have somebody to pay my bills; I could run around; but I would never come to Chicago and settle down”; and that the conversation then was interrupted by complainant’s appearance.

The certificate of evidence also discloses that a still further hearing was had before the chancellor on December 7, 1929. Complainant’s solicitor stated that he had “two affidavits signed by two witnesses who have read the letter and know its contents.” Thereupon the court directed that the two witnesses be sworn, and Clara L. Denny testified in substance that she is office manager of an incorporated company engaged in the business of court reporting in Chicago; that a letter, introduced in evidence on October 30th, has been lost or mislaid; that in the course of her duties she frequently checks over transcripts of evidence written out by court reporters employed by the company; that she remembers reading the evidence taken in the case of Johnson v. Johnson, and also the letter; and that she has a “fair recollection” of its contents, though she does not remember its date. The witness then gave her best recollection of its contents as follows:

“She (meaning defendant) stated to this man, her husband, that at the time she married him she had no intention of living with him as his wife, that she simply married him for, well, to have the name of being a married woman, and that it was useless to write her any longer as she had no intention of coming to Chicago to live. I remember her name was signed at the end of the letter.”

Thereupon Veronica H. Reynolds, the same reporter who certified to the correctness of the transcript of the evidence introduced at the hearing on October 30, testified that at that hearing a letter was “marked complainant’s Exhibit A” and introduced in evidence; that she took the letter to her office and put it in her desk; that on November 8, the day before the case was coming up for further hearing, complainant’s solicitor requested her to present her transcript of the evidence, and the letter, in court the following morning, but “not .to attach the letter to the transcript as he wanted to present it to the judge”; that she put the transcript and the unattached letter in an envelope and gave instructions that the package be delivered in court the following morning, which instructions were carried out; that thereafter in some manner the letter was lost; that she personally did not learn of the loss until November 16, when the second hearing was had; and that “we have looked everywhere for the letter but have been unable to find it.” The witness further testified that after the letter came into her possession she read it and that therein “she (defendant) stated she married him for the name only, that she never intended to live with him as man and wife, that he might just as well stop writing as it was useless, and that she never intended to come to Chicago.” Thereupon, at complainant’s solicitor’s request, the court directed that the two affidavits of the witnesses (Mrs. Denny and Miss Reynolds) be “read into the record.” This was done. With some minor differences they are respectively in accord with the testimony of the witnesses. It is, however, stated in each affidavit that the letter “was addressed to Paul Gr. Johnson, Chicago, Illinois and was signed by Lavanch D. Johnson.” Each affidavit is sworn to on December 7. On the next page of the transcript is Miss Reynolds’ affidavit, sworn to on December 7, that “she is the reporter who took down in shorthand the evidence at the trial of the above case, and the foregoing is a correct transcript of the same.” On the next page is the trial judge’s certificate in the usual form. At the end of the transcript of the record is the usual certificate of the clerk of the court, and he certifies that the original certificate of evidence is incorporated in said transcript.

In complainant’s printed abstract of record, prepared by his counsel and filed in this court on January 15,1930, the proceedings before the chancellor on December 7,1929, are not abstracted. Indeed, no mention whatever is made of them or that a letter had been lost. On page 12 of the abstract, a letter, addressed to “Dear Paul” and signed “Lavanch,” is set out in full as if it were a true original, and complainant’s counsel in his printed brief and argument treats it as such.

Counsel here contends that the decree, dismissing complainant’s bill for want of equity, is contrary to the law, in view of complainant’s testimony, Olson’s testimony and defendant’s admissions as contained in the letter. Counsel argues in substance that the testimony and letter sufficiently disclose such fraud on defendant’s part at the time of the marriage as warrants a decree of annulment. We cannot agree with the contention or argument. It is apparent that, without taking into consideration defendant’s claimed letter, complainant utterly failed to prove the charges of fraud in his bill. And it may well be that the chancellor in view of the facts and circumstances entertained doubts, as we do, as to the genuineness of the letter. But, even assuming its genuineness and that defendant had intentions at the time of the marriage as stated in the letter, we do not think that the court would have been justified in granting an annulment of the marriage under decisions in this State and the general current of authority in other jurisdictions. In 19 Ency. Law, 2d Ed., p. 1184, it is said: "The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient ground for the annulment of a marriage. It is not sufficient that the party relied upon the false representations and was deceived, or that important and essential facts were concealed with intent to deceive. The marriage relation is a status controlled and regulated by considerations of public policy which are paramount to the rights of the parties.” In 38 Corpus Juris, in a subdivision relating to proceedings for annulment of marriages, at page 1354, section 131, it is said: "The burden is on plaintiff to sustain his material allegations. ... In view of the peculiar nature of marriage and the grave consequences attendant upon its subversion, the courts will not grant a decree of nullity except upon the production of clear, satisfactory and convincing evidence.” In a footnote numerous cases decided in different States are cited, including two in Illinois, viz.: Lyon v. Lyon, 230 Ill. 366, and Beckley v. Beckley, 115 Ill. App. 27. In the Lyon case the husband’s bill for annulment, on the ground of fraud, of a marriage in the State of New York was, upon demurrer, dismissed for want of equity and the decree affirmed. After quoting with approval the above statement in 19 Ency. Law, the court says (p. 371): “The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation, — of something making impossible the performance of the duties and obligations of that relation or rendering its' assumption and continuance dangerous to health or life.” And the court further says (p. 372):

“The statute of New York mentioned in the bill merely declares the law as it exists in Illinois, — that a marriage procured by fraud may be annulled. The kind and degree of evidence required for such purpose must be determined by the court in which the suit is brought, according to the law of the forum. The bill proceeds on the theory that appellant’s consent to the marriage was obtained by fraud, and sets out the facts constituting the fraud. Whether those facts constitute fraud must be determined by the law of the forum, and the superior court did not err in sustaining the demurrer to the bill.”

In Bielby v. Bielby, 333 Ill. 478, the wife filed a bill in the circuit court of Cook county for a separate maintenance. The husband answered, and filed a cross-bill praying that the marriage, which occurred in Cook county on July 8,1925, be annulled on the ground of fraud, and further praying that certain conveyances of 40 acres of land, made by him at the time of the marriage to them in joint tenancy, be set aside. After a hearing a decree was entered dismissing her bill, finding the equities with him, and decreeing that the marriage be annulled and that the conveyances be set aside. Upon her appeal the Supreme Court reversed the decree and remanded the cause with directions to dismiss both bills. The husband claimed that after the marriage the parties never lived or cohabited together owing to her refusal so to do, that she married him for the sole purpose of inducing him to convey his land to her in joint tenancy, and that at the time of the marriage simulated affection for him but never intended to live with him as his wife. In the court’s opinion (p. 483) it appears that, to sustain the decree of annulment, it was argued before the Supreme Court that she had “falsely promised to live with him and make a home for him without any intention of so doing.” The court, however, held (p. 486) that there was “no basis in the evidence upon which a decree of annulment could be founded and the circuit court erred in entering such a decree.” In discussing counsel’s argument the court repeats certain statements made in the Lyon case, supra, quotes from 2 Kent’s Commentaries, p. 77, and says (p. 484):

“The misrepresentation, in order to constitute fraud for which an annulment of a marriage may be decreed, must be as to some existing fact, as, a legal or physical impediment to the marriage, and not a promise as to future conduct. Even in ordinary civil cases, representations, to be fraudulent, must relate to a present or past state of facts and not to promises looking to the future. ” •

In view of the evidence and all the facts and circumstances disclosed in the present record, and of the authorities mentioned, we are of the opinion that the decree of the circuit court, dismissing complainant’s bill for want of equity, should be affirmed, and it is so ordered.

Affirmed.

Barnes, P. J., and Scanlan, J., concur.