text:
    The United States Rolling Stock Company v. Conrad Wilder.

      Wiled at Ottawa January 25, 1886.

    1. Negligence — contributory negligence■—under what condition of proof the court should instruct on that subject. In an action based on negligence of the defendant, proof of the negligent acts or omissions charged in the declaration, which fails to show negligence by the plaintiff, establishes a prima facie right of recovery; and it is incumbent on the defendant to show such negligence in the plaintiff as will defeat a recovery, or at least offer some evidence tending to prove it, in order to warrant the court in giving an instruction relating to contributory negligence.

      2. Same—master and servant—of the risks the latter assumes, generally. A servant, in entering upon an employment, assumes, generally, only such risks as he has notice of, either express or implied. Some are so obvious that notice of them will be presumed. When there are special risks, of which the servant is not, from the nature of the employment, cognizant, or which are not patent, it is the duty of the employer to notify him of them, and on failure to do so, if the servant is injured by exposure to such risks, he is entitled to recover from his employer.
    3. Same—servant assuming risk as to competency of fellow-servants— duty of the master in that regard. One employed in a service is not bound to investigate, and find out at his peril whether the common master has used reasonable care in the selection of those already employed in the same branch of service, but on the contrary, he is warranted in assuming that his employer has discharged his duty in that respect, and until notice to the contrary is brought home to such servant, he may act upon such supposition.
    4. All the law demands of a servant entering a hazardous service, is to observe what is passing, and avail himself of such information as he may receive in respect to the talents and characteristics of his fellow-servants; and if, from any source, he finds any of them incompetent, so that his position is extra hazardous, it is his duty to notify his emplov-er, and if the latter fails to discharge the incompetent or unfit servant, he should quit the master’s employment, otherwise he will be deemed to have assumed the extra hazard of his position. In that case there will be mutual negligence on the part of both the master and the servant.
    5. The risk as to the negligence of a fellow-servant is subject to the qualification that the master is not to knowingly employ or retain incompetent or habitually negligent co-servants, and that he is not to permit to be used in his business, defective machinery, whereby the ordinary dangers of the service are increased. The extra hazards resulting from the master’s failure to perform his duty to his employes, do not come within the risk which the latter assumes, and for an injury resulting from them, or such as are not obvious, and of which the servant has not notice, the master is liable.
    6. In such a case it is no answer to an action to say that the servant might, by the exercise of proper diligence, have ascertained that the master was conducting his business in disregard of a positive duty which he owed to his servant.
    7. Instruction—should he based on evidence. All instructions to a jury should be based upon evidence from which it legally and logically results, and it is not error to refuse one which announces a mere abstract proposition of law not suggested or warranted by the evidence in the case. On the other hand, it is error to give such an instruction when the giving of it will have a tendency to mislead the jury; but if the reviewing court can see, from the nature of the case, that it had no such tendency, though improperly given, it will afford no ground of reversal.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This action was brought in the Superior Court of Cook county, by Conrad Wilder, the appellee, against the United States Bolling Stock Company, the appellant, to recover damages for the loss of the plaintiff’s hand, which is alleged to have been occasioned by the negligence of the company in retaining in its employ an incompetent and unskillful engineer, after notice of such unskillfulness and incompetency. There was a trial in the Superior Court on the merits, resulting in a verdict and judgment for plaintiff of $5000, which was affirmed by the Appellate Court for the First District, and the company brings the case here for review.
    Mr. C. D. Boys, Mr. Wit. B. Keep, and Mr. J. C. Hutchins, for the appellant:
    A railway company is not liable because the man who is conductor of its train is not competent to conduct the management of its entire railway. It is sufficient if he is competent to do the work for which he was employed. Gilbert v. Railroad Co. 46 Mich. 176; Railroad Co. v. Dolan, 32 id. 519.
    The law presumes that one entering a service had knowledge of its ordinary hazards, and of the need and means of performance of the business. Railroad Co. v. Flanigan, 77 Ill. 365; Richardson v. Cooper, 88 id. 112; Railroad Co. v. Durkin, 76 id. 395.
    In actions of this sort, specific acts of negligence, when known to the master, are admissible for the purpose of determining the character of the servant who is alleged to be incompetent, but do not prove, or tend to prove, that at the time of an accident such servant was in fact negligent. Moss v. Railroad Co. 49 Mo. 167; Railroad Co. v. Milliken, 8 Kan. 647; Blake v. Railroad Co. 70 Me. 60; Pierce on Bailroads, 374, 379.

      If a servant remains in the service after knowledge of defects in the road or machinery, or the incompetency of a fellow-servant, or when he has reasonable opportunity to learn the^same, he will assume the risks incident to that state of facts. Shearman & Redfield on Negligence, sec. 94; Thompson on Negligence, 1008, 1016, 971; Williams v. Clough, 3 H. & N. 258; Hayden v. Manufacturing Co. 29 Conn. 348; Cagney v. Railroad Co. 69 Mo. 416; Wright v. Railroad Co. 25 N. Y. 562.
    The above eases, and also the following, hold that if the servant has the. same knowledge, or means of knowledge, that the master had, he can not recover. Haskin v. Railroad Co. 65 Barb. 129; Thayer v. Railroad Co. 22 Ind. 29; LeClair v. Railroad Co. 20 Minn. 9; Railroad Co. v. Barber, 5 Ohio St. 541; Greenleaf v. Railroad Co. 29 Iowa, 46; McMillan v. Railroad Co. 20 Barb. 449; Davis v. Railroad Co. 20 Mich. 105.
    Mr. Martin Beem, and Mr. D. F. Flannery, for the appellee :
    A servant is not bound to inquire or to ascertain his co-servant’s habits or qualities as a servant, but is bound to see what transpires in his presence. Nor is he bound to search for latent defects in machinery. Wood on Master and Servant, 803, sec. 419; Pierce on Railways, 381; Railroad Co. v. Swett, 45 Ill. 203.
    To have an incompetent, reckless or careless man in charge of the lives of others, is an act of negligence for which the master employing him, who is bound to know the qualifications of his employes, is responsible. Shearman & Redfield on Negligence, sec. 90; Railroad Co. v. Jewell, 46 Ill. 99.
    The master must use. all reasonable precautions to select capable and prudent fellow-servants,' (Richardson v. Cooper, 88 Ill. 373,) and to furnish suitable and safe machinery. Railway Co. v. Fredericks, 71 Ill. 294.

      It is not the business of the servant, nor has he the means of ascertaining, whether the machinery or structure upon which he is.employed to operate, is defective. It is the duty of the master to. furnish these appliances. Porter v. Railway Co. 60 Mo. 160.
    Where the reckless or negligent habits of a servant have been acquired subsequent to his employment, the master having no knowledge of the same, and the reckless or negligent acts happen in the presence of the injured servant, under such circumstances that there is a greater probability that the latter knew of them than the master, the master will not be liable. Davis v. Railroad Co. 20 Mich. 105.
    The rule applies where the defective appliance is under the special care of the servant, and it is his business,—one of the duties of his employment,—to see that it is in a fit condition for use, in which ease the servant has a better opportunity of knowing of the defect than the master. Railroad Co. v. Jewell, 46 Ill. 99; Railway Co. v. Jackson, 55 id. 492.
    Instructions' which impose upon a master a liability for the negligent acts of his servant, because he employed the servant knowing him to be incompetent," or because he might have known of his incompetency by the exercise of reasonable care, should be qualified simply by the injured servant’s knowledge of the incompetency. But if it was a part of the duties of the injured servant’s employment .to know it, the instruction should be further qualified by making him equally negligent with the master if they had equal facilities for knowing of the incompetency, in which ease the injured servant could not recover. Railroad Co. v. Jewell, 46 Ill. 99; Railway Co. v. Jackson, 55 id. 495; Railroad Co. v. Flanigan, 77 id. 371; Railroad Co. v. Swett, 45 id. 203 ; Railroad Co. v. Fredericks, 71 id. 294; Pennsylvania Co. v. Lynch, 90 id. 333; Gibson v. Railway Co. 46 Mo. 163; Porter v. Railway Co. 60 id. 160.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This cause is now before us the second time for consideration. When first before us, the conclusion was reached that the Appellate Court properly affirmed the judgment of the trial court, and a short opinion was filed to that effect. A rehearing was subsequently granted on the ground some of the members of the court were in doubt as to whether the trial court did not err in striking out the concluding words of the defendant’s fifth instruction. That instruction tells the jury there can be no recovery in the case “unless the jury find, from the evidence, that the engineer in charge of the locomotive was incompetent to perform such service, and that the defendant -company knew, or by reasonable diligence might have known, of such incompetency, and not even then unless you further believe, from the evidence, that the plaintiff did not know of such incompetency, and did not have equal facilities ivith the defendant for acquiring such knowledge.” After the words in italics were stricken out, the instruction thus modified was given to the jury, and it is contended this was error.

Conceding the instruction, as asked, to be correct as an abstract proposition of law, does it necessarily follow that it should have been given to the jury unless there was some evidence upon which to base it ? It is an elementary principle of universal application, that all instructions to a jury should be based upon evidence from which it legally and logically results,—that it is not error to refuse an instruction which announces a mere abstract proposition of law not suggested or warranted by the evidence in the case. On the other hand, it is error to give such an instruction where the giving of it will have a tendency to mislead the jury. If, however, where such an instruction is given, the reviewing court is able, from the nature of the case, to say that it had no such tendency, then, though improperly given, it will afford no ground for reversal. These several propositions have often been recognized by this court, and if it be possible to settle anything by-judicial decisions, they may be regarded as the settled law of this court. Thus it is said in Keeler v. Stuppe, 86 Ill. 309: “The sole function of instructions is to give the law applicable to the case, in clear and intelligible language. ” Again, in Baxter v. The People, 3 Gilm. 368, it is said: “The object of instructions is to convey to the minds of the jury correct principles of law as applicable to the evidence which has been laid before them. Nothing should be given them unless it will promote that object.” So in Atkinson v. Lester, 1 Scam. 407, it is said : “Mere abstract propositions of law which do not refer to the evidence in the cause should not be given as instructions.” But it is said in Corbin v. Shearer, 3 Gilm. 482, that a case will not be reversed “because of the giving of such instructions, unless it appears that they improperly influenced the jury. ” We might go on almost indefinitely citing cases in this court which fully sustain the propositions above stated, but it is not necessary to do so. We will simply refer in this connection to the following additional cases, which are directly in -point: McNair v. Platt, 46 Ill. 211; Lander v. The People, 104 id. 248; Devlin v. The People, id. 504; Heaton v. Kemper, 2 Scam. 367; Nealy v. Brown, 1 Gilm. 10.

The defendant, it will he perceived, is charged with negligence in the selection and hiring of an incompetent engineer, and also in suffering and permitting such incompetent engineer to manage, control and operate its ears and engine. It was sufficient, under the pleadings, to entitle the plaintiff to recover, to prove negligence in either of the respects charged. Whatever may be said in respect to the first branch of the subject, the decided weight of evidence shows that Guernsey, the defendant’s engineer, was incompetent, and that the defendant had, at the time of and during plaintiff’s employment, notice of this fact. Guernsey was first employed hy the defendant in the capacity of a truck repairer, and was promoted from that position to the more responsible one of engineer, upon his own recommendation. He entered the defendant’s service in May or June, 1880, and the attention of the company was frequently called to his incompetency. It is true, Cary, foreman, and Stagg, superintendent of the company, thought him competent for the position he occupied. As they were probably personally responsible to the company,' both for his employment and retention, it is not a matter of surprise that they should so consider him. So far as Cary is concerned, he might safely say this, for he evidently thought his position required little or no skill, for in answer to the inquiry if it did not require as much skill to run the company’s engine as any other, he says: “No, sir. I will say that it does not require any but an ordinary man. A very ordinary man can do it in our yard. * * * A man that is competent to keep the water up, and keep his pumps going, can do our work. ” Without divelling further upon the facts, we will add, in general terms, that the witnesses for the plaintiff make out a strong case of inexcusable negligence against the defendant in retaining Guernsey as engineer of the company.

It will be understood that in thus discussing the facts it is not for the purpose of reviewing the judgment of the lower court upon them, but with the sole view of presenting a conclusive reason why the judgment of that court should not be disturbed for any supposed technical error not affecting the merits, as another trial would in all probability result the same way.

Becurring now to the modification of the instruction complained of, let us examine wdth some particularity the grounds upon which the action of the trial court in respect to it is assailed. The position of appellant, as we understand it, is, that the trial court should, by the instruction in question, have submitted to the jury the question whether the appellee, by the exercise of reasonable care and diligence, might have known or learned that the engineer was an incompetent person. Assuming this to be so, the question then arises, what evidence is there in the record that can with any degree of propriety be said to raise this question?—for it is to be borne in mind that no question should in any case be thus submitted which does not fairly arise out of the evidence. It is the true and proper function of the jury to determine what the evidence proves upon every question submitted to them, and if there is no evidence on a particular question involved in the pleadings, or raised by counsel in argument, it follows there would be nothing for the jury to consider or determine with respect to that particular question. Any instruction, therefore, relating to it, would necessarily be nothing more than a mere abstract proposition of law, and for that reason should not be given.

The simple facts in this case, so far as they may be supposed to have even the remotest bearing upon the question under consideration, are, that at the time of plaintiff’s employment as switchman the defendant then had in its service an unskillful and incompetent engineer, which fact was well known to the defendant; that within the short space of six working days after his employment, the plaintiff, while acting with due care in the line of his duty, received a serious injury upon the hand, occasioned by the negligence and incompetency of the engineer, which, after appellee’s submitting to two surgical operations, resulted in the loss of his hand. These are the facts,—nothing added, nothing omitted. The appellant does not claim that the incompetency of the engineer was known, or might have been known, to appellee, by the exercise of ordinary care, and no evidence is offered to prove such a hypothesis, but on the contrary its claim is, that the engineer was competent, careful, skillful; and yet, strange to say, and inconsistently as it may appear, this court is asked to reverse the ease because the trial court refused to submit the question to the jury, whether the plaintiff, by the exercise of reasonable diligence, might not have discovered the engineer’s incompetency,—a fact which the appellant itself earnestly maintains has no existence. If, as appellant’s witnesses swear, the fact had no existence, how could appellee, by any degree of care or watchfulness on his part, have discovered it ? If there were any proof in the record tending to show that appellant or any other person, prior to the time of the accident, informed appellee of the incompetency of the engineer, or if it appeared the engineer had, during appellee’s few days’ service, been guilty of previous acts of negligence, from which the latter could have reasonably inferred the engineer’s general incapacity, it might then with propriety be contended that the instruction, as originally drawn, should have been given. But there is absolutely nothing of this kind in the record. The plaintiff, by proving the facts above stated, without disclosing any negligence on his own part, as he clearly did, established a prima facie right of recovery. If, therefore, the plaintiff, as matter of fact, was guilty of such contributory negligence as would defeat a recovery, it devolved upon the defendant to prove it, by way of defence, or at least to offer some evidence tending to prove it, before the court would have been warranted in giving an instruction relating to contributory negligence.

The contention of appellant, as we understand it, is, that where one is employed as an operative in a particular branch of service, he is bound to investigate, and find out, at his peril, whether the common master has used reasonable care and prudence in the selection of those already employed in the same branch of service. The law imposes no such duty. One thus employed is warranted in assuming that the master has discharged his duty in this respect, and until notice to the contrary is brought home to the employe, he may safely act upon that hypothesis. All that the law demands of one thus employed is, that he keep his eyes open to what is passing before him, and avail himself of such information as he may receive with respect to the habits and characteristics of his fellow-servants, and if, from either of these sources of information, he finds one of them, from incompetency or other cause, renders his-own position extra hazardous, it is his duty to notify the master, and if the latter refuses to discharge the incompetent or otherwise unfit fellow-servant, the complaining servant will have no alternative but to quit the master’s employ. If he does not, he will be deemed to have assumed the extra hazard of his position thus occasioned. The case suggested, it will be perceived, is one of mutual negligence. On the part of the master, it is negligence to retain the derelict servant in his employ. It is, on the other hand, negligence in the complaining servant to continue longer in the master’s service unless he intends to assume the extra risk himself.

The authorities cited by appellant on this branch óf the case are not at all in point. Thus, the case of Chicago, Rock Island and Pacific Railroad Co. v. Clark, 108 Ill. 113, is given much prominence in counsel’s argument. That was an action brought by Mrs. Clark against the company for negligently causing the death of her husband, who was in the employ of the company as a bralfeman at the time of the accident which caused his death. The deceased, at the time, was making a coupling after night, in front' of a platform near the side-track upon which the train was standing, and in doing so he became entangled with a lantern in his hand, which, coming in contact with the moving train, was so pressed up against him in his position between the cars and the platform, as to cause internal injuries from which he died. The negligence charged was, that the track was built too near the platform, the distance being only some ten inches. The negligence complained of in that case, assuming there was negligence, was not at all, as is manifest, like the negligence charged in this. In that case the proximity of the track to the platform was open and visible to all persons having occasion to be there, and especially to brakemen on the road, and had so been for fourteen years past. Whatever danger resulted from the proximity of the track to the platform must necessarily have been as well known to the deceased as to the company or any of its officers, and hence there was no right of recovery. Here the facts are altogether different, and call for the application of different principles. While that case was clearly decided properly, yet, as is not infrequently the case, there are things said in the opinion by way of argument that are not accurate when considered as abstract propositions, and they must therefore be confined to the particular facts then before the court. Thus, among other things, it is said in effect in that case, that the master is not required to inform his servant of dangers pertaining to his duties. This is true as to dangers which are obvious, and which the servant would necessarily see, as was the case there. It is also true of the ordinary dangers pertaining to a particular service, and which all persons who engage in it are presumed to know. But the statement is far from being universally true.

The true rule on this subject is well stated in Wharton on Negligence, section 206. It is there said, that a “servant generally assumes only those risks of which he has express or implied notice. Some risks are so obvious that notice of them will be presumed. Where there are special risks in an employment,-of which the employe is not, from the nature of the employment, cognizant, or which are not patent in the work, it is the duty of the employer to notify him of such risks, and on failure of such notice, if he is hurt by exposure to such risks, he is entitled to recover from the employer. ” Now, while negligence of a fellow-servant is one of the ordinary risks which an employe assumes when entering into the service of another, yet this risk is subject to the qualification the master is not to knowingly employ or retain incompetent or habitually negligent servants; nor is he to permit to be used, in his business, defective machinery, whereby the ordinary dangers of the service will be enhanced. These extra hazards, which result from the master’s failure to perform his duties to his employes, do not come within the risks which the latter assume as a part of their contract of service. For all such extra hazards resulting in injury to the servant, which are not obvious, and of which the servant has no notice, the master is liable. And in such case, it is no answer to an action to say, as is alleged here, that the plaintiff might, by the exercise of proper diligence, have ascertained the defendant was conducting his business in disregard of a positive duty which he owed the plaintiff, as his servant. If in such case, however, an employe, after notice of the extra risks thus occasioned, continues in the master’s service, it will be at his own peril, for the law, in such case, will presume that he intended to assume them, otherwise he would have quit the master’s service. The law on this branch of the subject is well- stated in the late ease of Stafford v. Chicago, Burlington and Quincy Railroad Co. 114 Ill. 244.

After availing ourselves of all the additional light afforded by the rehearing allowed in this case, we are satisfied with the conclusion heretofore announced in it, and also with the general views expressed in the opinion therein filed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Thomas Beal v. George C. Harrington et al.

      Filed at Ottawa January 25, 1886.

    1. Vendor’s lien—principle on which, lien rests. The principle governing courts of equity in the enforcement of liens, is the implied agreement held to exist between the vendor and vendee that the former shall hold a lien on the lands sold, for the payment of the purchase price, on the ground that the person who has the estate ought not, in conscience, as between them, keep it and not pay the purchase money.
    2. Same—waiver by talcing other security. If a vendor of real estate takes collateral and independent security for the purchase money, he thereby releases and waives all right to a vendor’s lien.
    3. Same—what to be regarded as collateral security—and herein, who to be considered the real purchaser. A person purchased a tract of land for himself, for which he agreed to pay by a stock of goods valued at $4000 and the conveyance of town lots valued at $1000, and had the land so purchased by him conveyed to his two sons in trust for himself, they paying nothing, and delivered the goods, but was unable to convey the lots for want of title thereto. The sons afterward, at the father’s request, conveyed the land to a third person, who paid nothing therefor, but held the title for the father: Held, that the vendor of the land had a vendor’s lien upon the lands conveyed by him, to the extent of $1000, the amount of the unpaid purchase money, which he might enforce as against the sons and their voluntary grantee.
    4. If land is bought by one as the agent of another, and a conveyance is made to the principal, the real purchaser, and the vendor accepts the obligation of the agent for the unpaid purchase money, he will waive his lien as vendor. But this rule has no application to a case where the purchase is made by a party for himself, and the deed is made to one in trust for his use. In such case he is the real purchaser, and his obligation to pay for the same is not collateral security.
    5. Where the equitable Owner- of land, the legal title being in another, sells the same, and procures a conveyance from the holder of the legal title to be made to a third person in trust for the purchaser, a court of equity will regard the equitable owner as the vendor, and he may enforce a vendor’s lien for the unpaid purchase money against the land so conveyed. In such case the person-for whose use the land is conveyed will be held to be the real purchaser.

      6. Same—as against mere volunteers and pun-chasers with notice. A conveyance of land by the purchaser to a third person, with notice of the existence of a vendor’s lien, or to a mere volunteer, will not defeat the enforcement of the lien.
    7. Appearance—record showing there was a demurrer—presumption as to all the defendants. Where the record shows that the defendants in a. bill in chancery not served with process, filed a demurrer to the bill, which is not set out in the record, it will be presumed that all the defendants joined, in the demurrer, and thereby entered their appearance.
    8. Assignment of error—as to matters not affecting the party complaining. Where only one of several defendants appeals from a decree, he-can not assign for error matters appearing in the record relating in nowise to-himself, but to the other defendants, and which do not affect his rights; and the defendants not joining in the appeal can not assign errors in respect to-themselves.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    On the 15th day of March, 1878, Thomas Beal claimed and represented to appellees that he was the owner of certain lots-in Castle’s addition to the village of Wyoming, Stark county, Illinois, and also of a stock of goods then in a store occupied by him. At that time the complainants (appellees) were the owners of certain real estate, although the legal title was in one Edward B. Hurlbut. Thomas Beal induced appellees te enter into a contract with him, whereby said Beal agreed to-sell and deliver said stock of goods and convey said village lots, in Wyoming to appellees in fee, clear of incumbrance. The-trade was consummated,—the price of the goods as agreed upon was $4000, and the village lots $1000. In consideration of the sale and conveyance of said lots and stock of goods, appellees agreed with said Thomas Beal to cause to be conveyed to Alsina and Frederick Beal, sons of Thomas Beal, the said lands owned by appellees, the legal title of which was in said Hurlbut, subject to an incumbrance of $2400, The appellees reserved the right to pay off and remove all other incumbrances on said land within four months, which they in fact did. Appellees, in pursuance of said contract, caused a deed for the real estate so vested in said Hurlbut to be executed by said Hurlbut to said Alsina and Frederick Beal, and delivered to Thomas Beal. The stock of goods was duly delivered to appellees, but the lots in Wyoming were not conveyed to appellees, said Thomas Beal at the time of the contract, or since, not being the owner or having any interest therein, and at no time since the contract has it been in his power to convey the title. Immediately upon the delivery of the deed from Hurlbut, Thomas Beal went into possession of the land thereby conveyed, and has had ever since the full and absolute control of said land; and on the 1st day of January, 1878, said Alsina and Frederick Beal, at the request of said Thomas Beal, conveyed said real estate to one L. M. Johnson, for the purpose of enabling said Thomas Beal to borrow money thereon to pay his debts. Johnson paid nothing for such conveyance, and neither he nor the said Alsina or Frederick over-bad any interest in said real estate, but the title was at all times held by them in trust for Thomas Beal. Alsina and Frederick were young men, clerks in their father’s store, without means, and the title to the real estate was placed in them, as said Thomas alleged, to enable him to settle with his creditors.
    Appellees filed a bill setting forth the above facts, and making Thomas Beal, Alsina Beal, Frederick Beal and Lyman M. Joknson, defendants, and praying to have a vendor’s lien enforced to the extent of $1000, the stipulated price of said village lots, against the lands so conveyed to said Alsina and Frederick for said Thomas Beal. On the same day a summons issued, returnable to the first Monday in February, 1879. On the 24th day of December, 1878, the summons was duly returned served on Johnson, but not found as to the other-defendants. There appears in the record at the February special term, A. D. 1882, of the circuit court of Iroquois county, wherein said cause was pending, the following: “And now come the defendants, by Robert Doyle, their attorney, and file a demurrer to the bill of complaint in this cause.” This demurrer, which appears by the record to have been sustained, is not set out in the record here filed. On March 5, 1884, the following entry appears in said circuit court record: “And now comes the complainants, by J. W. Holland, their solicitor, and the defendants, by Robert Doyle, their solicitor, and the demurrer to the bill heretofore filed herein coming on to be heard, and the court being fully advised in relation thereto, ordered that the said demurrer be sustained; whereupon, on motion of the complainants’ solicitor, leave is given to amend the bill by to-morrow morning.” On the 28th day of March, 1884, Alsina Beal and L. M. Johnson filed their demurrer to the amended bill, which. wras overruled by the court, and they electing to abide by their ■ demurrer, the bill was taken as, confessed against all the defendants, and a decree rendered granting the relief prayed for. From that decree the defendants prayed, and were allowed, an appeal to the Appellate Court, but Thomas Beal alone perfected the appeal. The decree of the circuit court was affirmed in the Appellate Court, and appellant, Thomas Beal, now brings the record here and asks a reversal of the judgment of the Appellate Court. Errors are assigned by Thomas Beal, Frederick Beal and Alsina Beal, whilst Thomas Beal is the sole appellant, Frederick and Alsina Beal not having perfected their appeal.
    Messrs. Doyle, Morris & Pierson, for the appellant:
    Complainants could not have a vendor’s lien, because the legal title was never in them. Bayley v. Greenleaf 7 Wheat. 51; Briscoe v. Burrough, 1 Tex. 326.
    If the holder of the legal title, the lien is waived, because the agreement was to convey the title to the sons of Thomas Beal, for the purpose of keeping the legal title out of him to avoid his creditors until he could settle with them, showing clearly that complainants relied on the agreement of Thomas, the father, to convey the lots. They knew they were relying on the obligation of a person other than the grantees in the deed, for the delivery of the goods and the conveyance of the lots, and thus it becomes an independent security and waives the lien. Andrus v. Coleman, 82 Ill. 26 ; Ilett v. Collins, 103 id. 77; Moshier v. Meek, 80 id. 81; Wilson v. Sawyer, 74 id. 473.
    No lien will be allowed when the party manifests a disposition or so acts as to show that he does not rely thereon, as, for instance, making a conveyance to a third person for the purpose of the vendee borrowing money, as is the ease here. Clower v. Rawlings, 9 S. & M. 122; Moshier v. Meek, 80 Ill. 81.
    An independent security, such as a deposit of stock, a pledge of goods, a mortgage on real or personal property, or the responsibility of a third person in any way, will be a waiver. Conover v. Warren, 1 Gilm. 498; Boynton v. Champlin, 42 Ill. 65.
    If a third person covenant to pay a part of the purchase money to a person other than the vendor, such other person has no lien on the land for such part of the purchase money. Clarke v. Royle, 3 Sim. 499; Foster v. Blackstone, 1 Myl. & K. 297; Colyear v. Mulgrau, 2 Keene, 81; Story’s Eq. Jur. sec. 1227.
    Mr. R. W. Hilscher, for the appellees:
    A vendor’s lien is given in equity on the ground that a. person who has gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it and not, to pay the full amount of the consideration money. 2 Story’s; Eq. Jur. secs. 1219-1225.
    In the absence of proof to the contrary, it is supposed the vendor of lands does not intend unconditionally to part with them without security for the payment of the purchase money. This lien attaches whether the vendor is cognizant of it or not. Moshier v. Meek, 80 Ill. 80.
    It was not necessary that the legal title of record should have stood in the vendor. It is enough that he owned and controlled it, and made the contract for its sale. Equity looks at the substance, and not form. Jeneson v. Jeneson, 66 Ill. 259; 3 Russ. Ch. 488; 3 McCrary’s C. C. 489.
    The two sons and their grantor having paid nothing, they are not protected. Wilson v. Lyons, 51 Ill. 169; 2 Story’s Eq. Jur. sec. 1225.
    A vendor’s lien is not waived by relying on the vendee to do that for which the vendor agrees to part with his land. In order to constitute a waiver of such a lien, there must be an actual taking of distinct and independent security. 51 Ill. 169.
    Even the taking of a bond or a note of the vendee for the unpaid balance of the purchase money, does not waive the lien. Boynton v. Champlin, 42 Ill. 57; Richard v. Lanning, 27 id. 134.
    So strong is the presumption that the lien- exists as against the grantee and persons claiming under him as volunteers, that it must clearly appear that it has been waived. 51 Ill. 169; 2 Story’s Eq. Jur. secs. 1224, 1225.
    Alsina and Frederick Beal are not in this court complaining about the decree. They do not appeal, and Thomas Beal can not be heard to complain that a decree was passed against them also, when it should have been against him alone. Wright v. Bishop, 88 Ill. 302; Havighorst v. Lindberg, 67 id. 463; Robinson v. Brown, 82 id. 280; Walker v. Abt, 83 id. 226; Stone v. Wood, 85 id. 603.
    A party can not complain of an error which in nowise injures or impairs his rights. Myers v. Pheiffer, 50 Ill. 485; Smith v. Hickman, 68 id. 315; Worden v. Crist, 106 id. 333.
    The only instance where a defendant may assign errors committed against a eo-defend ant, is where the error affects the rights of the defendant appealing. Greenman v. Harvey, 53 Ill. 386.
    The two sons are not in court, and can not assign errors. A defendant who does not join in an appeal, can not have the benefit of it. Enos v. Capps, 12 Ill. 255 ; Rees v. Chicago, 38 id. 332; 1 Barb. Ch. 395.
   Mr. Justice Shope

delivered the opinion of the Court:

The first error assigned is, that the court erred in overruling the demurrer to the amended bill. This raises the same questions, practically, as the fourth assignment of error, and will be considered in connection therewith.

The second error assigned is, that the circuit court erred in rendering a money decree against Frederick and Alsina Beal. A sufficient answer to this objection is, that they are not before this court, and can not assign errors for themselves; and even if it be conceded that the decree is erroneous in the respect urged, it is in no way prejudicial to the appellant, and he can not assign for error matters appearing in the record relating in nowise to himself, but to other defendants, and which do not affect his rights. Fonville v. Sausser, 73 Ill. 451; Walker v. Abt, 83 id. 226; Kennedy v. Kennedy, 66 id. 190; Greenman v. Harvey, 53 id. 386; Havighorst v. Lindberg, 67 id. 463; Morse v. Smith, 83 id. 396; Smith v. Hickman, 68 id. 314.

The third assignment of error is, that the circuit court had no jurisdiction of the person of Thomas Beal. As we have seen, the summons was returned not served as to Thomas Beal, but it is recited in the record that the defendants interposed a demurrer to the original bill, which was sustained, and leave given complainants to amend. It is also recited that the defendants, by their attorney, came, etc., upon consideration of the demurrer. This demurrer, as already said, is not set out in the record, so that we can see whether all the defendants joined in it or not. The record is brought into the Appellate Court and this court by the appellant, Thomas Beal, and he has seen fit to rest the ease upon the recitals in the record of the circuit court. No suggestion of a diminution of the record is made, or an attempt to supply the demurrer, which, if produced, would at once show whether he joined in it or not. We think that where the record of the circuit court contains recitals that certain papers were filed by the-defendants, and one of the defendants brings the case to this court without incorporating in the record the papers so purporting by the recitals to have been filed by him, the presumption should be indulged that the paper, if produced, would sustain the recitals in the record. There is no hardship in this rule. We therefore hold that the recitals in this record are sufficient to show an appearance of all the defendants.

The fourth and last error assigned is, that the bill failed to show such a state of facts as entitled complainants to a decree for a vendor’s lien. This presents the same question as the first assignment, and is the real matter of controversy in the case.

It is contended by counsel for appellant, that when a vendor of real estate takes collateral and independent security for the purchase money, he thereby releases or waives all right to a vendor’s lien, and numerous authorities are cited to support the position. This principle is undoubtedly correct, and if it is applicable here, is conclusive of the case. But does it apply to the facts of this case ? What collateral or independent security did the vendors take ? It is claimed that they conveyed, or caused to be conveyed, to Alsina and Frederick Beal, the land against w'hich a vendor’s lien is now claimed, and took the promise of Thomas Beal to convey other property to them in payment therefor, and that amounted to a collateral security, or a security independent of the land conveyed, and, therefore, a waiver of their vendor’s lien. This is a misapprehension of the fact. The sale was made to Thomas Beal for a certain consideration, $1000 of which was to be paid by the conveyance of the lots in the village of Wyoming. When the deed was made, it was to his two sons, by his direction and for his convenience, but delivered to him, on liis obligation to pay for the same according to the contract, by delivering the stock of goods and conveying said village lots. The sons took the title simply in trust for then-father, and as mere volunteers, having no pecuniary or personal interest therein.

It is said by appellant’s counsel, that the case of Andrus v. Coleman, 82 Ill. 26, is a parallel case with this. We think there is a marked distinction between this case and that one, as well as all other cases cited by appellant’s counsel. In that case, Andrus conveyed to Martha J. Coleman the land and took her husband’s deed of conveyance for certain lands, in Kansas, and his note for the balance of the purchase price of the land sold the wife. The court, in passing upon that case, say: “We consider that appellant, having conveyed to appellee, is estopped from questioning her title. He did this knowingly and voluntarily, and it is too late now to say that the title, in fact, belonged to her husband, with whom he .contracted. This is ample recognition of his knowledge of the husband being the agent for the wife in the transaction, as she swears he was; and, therefore, when he accepted his covenant of warranty for the Kansas lands, and his individual note for the residue of the purchase money, he knew that he was relying on the obligation of a person other than his grantee for the payment of the purchase money. ” In this case, the sale was made to Thomas Beal by appellees. The relation of purchaser and seller existed between them, and them alone. True, the deed was made to the sons of Thomas, but it is not claimed or pretended that they were purchasers in fact, or claimed to have any interest in the land or participated in the transaction in any way, except to receive the title in trust for their father. Nor is it shown or pretended that the vendors (appellees) claimed that any person other than Thomas Beal became liable to them for any portion of the purchase price of the land. It will be conceded that as between Thomas Beal and his sons, he was the equitable owner of the land conveyed by Hurlbut.

It is also contended that appellees can not enforce a vend- or’s lien, because the legal title was in Hurlbut, and the conveyance made from him to the grantees in the deed. Hurlbut was not the vendor or seller. As we have seen, appellees were the owners, in fact, of the land,—were, in fact, the vendors to Thomas Beal, and the conveyance by Hurlbut was made by him on their order and request, and to prevent the necessity of a conveyance to them, and from them to appellant or his sons. It is a familiar rule that equity disregards mere forms, and looks to the substance in the application of equitable principles, and this is especially so in the enforcement of vendor’s liens.

In Carey v. Boyles et al. 53 Wis. 574, it was held, where A purchased a tract of land for B, taking the deed to B, who agreed to repay A the purchase price, that, in equity, A and B stood in the relation of vendor and purchaser, and the former had a vendor’s lien for the unpaid purchase money. In this ease, if the real parties chose to consummate the trade by taking a deed directly from Hurlbut, and to sons of the purchaser, it should not follow that the equitable right to enforce the vendor’s lien is thereby lost. The principle that will govern courts of equity in the enforcement of vendors’ liens, is the implied agreement held to exist between the •vendor and vendee that the former shall hold a lien on the lands sold, for the payment of the purchase price, on the ground that a person who has the estate of another ought not, in conscience, as between them, keep it and not pay the purchase money. (2 Story’s Eq. Jur. secs. 1219-1224.) Usually lien is given to the grantor in the deed who is the vendor as well, but, as we have said, the substance is to be regarded, and the useless form of a conveyance by Hurlbut to appellees, that they might convey to appellant, will not be necessary to preserve, in equity, the right to enforce this lien. If Hurlbut had conveyed to appellees, and they to appellant, under this contract, and appellant, even for consideration, had conveyed to his sons, with notice, and they to Johnson, with notice of appellees’ rights, can it be questioned that the right to enforce the lien would exist ? Here appellees were the equitable owners of the land, controlled the legal title, caused the ■conveyance to be made, and are entitled to the purchase money, and we can conceive of no principle of equity that will defeat their right to enforce a lien therefor against this land in the hands of mere volunteers, in whose hands the land, for all equitable purposes and considerations, must be treated as belonging to Thomas Beal. Neither appellant nor appellees are strangers or third parties to this transaction. Loomis et al. v. Davenport and St. Paul Railroad Co. 3 McCrary, U. S. Ct. Court, 489; Austin v. Underwood, 37 Ill. 438 ; Magee v. Magee, 51 id. 500; Carey v. Boyles, supra.

We are of opinion that a vendor’s lien existed in favor of appellees for the price of the lots agreed to be conveyed by appellant as part, of the consideration for the sale of the land to him, and that there has been no waiver of it. We think the conclusion reached is fully sustained by authority, as well as the reason of the rule.

Finding no error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

The record in this cause was originally assigned to Mr. justice Dickey, and no opinion having been prepared by him, it was re-assigned in November, 1885.


author: Mr. Justice Magruder

text:
    Huldah E. Burke, Admx. v. Betsey P. Grant.

      Filed at Ottawa January 25, 1886.

      Mortgage—estoppel to enforce it, by reason of acts induced by a promise to discharge the mortgage. A was the owner of a city lot upon which his brother, B, had a mortgage for $1000, and 0 was the owner of a farm mortgaged for $3000. A exchanged his lot and a stock of groceries with 0 for her farm, each assuming payment of the other’s mortgage. A and B came to see the farm, when B discharged the $3000 mortgage, and took a mortgage from A for $4000 on the farm. 0 having taken steps to sell her stock and personal property on the farm, was induced to sell and deliver the same to A, upon the promise of B that he would release his mortgage on the lot: Held, that as B' induced the sale of the stock to his brother by O, under the belief that the incumbrance on the lot would be released, he was estopped from enforcing payment of his mortgage, and that it was properly declared paid, and set aside as a cloud on the title of- O.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook County; the Hon. M. F. Tuley, Judge, presiding.
    Mr. H. G. Beeves, and Mr. Wm. E. Hughes, for the plaintiff in error:
    The court erred in granting a decree upon the evidence submitted. The main question is, whether Samuel W. Burke ever agreed to release his mortgage, or did anything pertaining to the sale of the personal property to estop him from foreclosing it.
    Parol evidence should be carefully weighed before it is allowed to overcome the legal title to real estate shown by the records.
    The court erred in not requiring the. complainant to refund the money paid by Samuel W. Burke to redeem the property from sale for taxes.

      That the decree is against the law, we cite Prible v. Conger, 66 Ill. 370; Halks v. Livingston, 34 Mich. 384; Parker v. Barker, 2 Metc. 423; Stone v. Lannon, 6 Wis. 497; Jones v. Cowles, 26 Ala. 612; Mirauville v. Silverthorn, 48 Pa. St. 147; Keating v. Orne, 77 id. 89; Brant v. Coal and Iron Co. 3 Otto, 326; Insurance Co. v. Mowry, 6 id. 544; Boggs v. Mining Co. 14 Cal. 366; White v. Ashton, 51 N. Y. 280; Davis v. Bowman, 55 Miss. 676; Whitney v. Holmes, 15 Mass. 152; Hamlin v. Hamlin, 19 Me. 141; Swick v. Sears, 1 Hill, 18.
    Mr. T. M. Manning, and Mr. Edward H. Brackett,
    for the defendant in error, after stating the pleadings and facts at length, called the attention of the court to the charges in the bill, as relating to the doctrine of estoppel, citing Dickerson v. Colgrove, 10 Otto, 579; Pickard v. Sears, 6 Ad. & El. 469 ; International Bank v. Bowen, 80 Ill. 541; Hefner v. Vandolah, 57 id. 520; Flower v. Elwood, 66 id. 438; Chandler v. White, 84 id. 435 ; Kinnear v. Mackey, 85 id. 96; Ball v. Hooten, id. 159; Nicholls v. Pool, 89 id. 491.
    As to the question of estoppel to foreclose the mortgage, we say, first, the Statute of Frauds is not pleaded or set up as a defence; and second, that the evidence is entirely legitimate and proper if the statute had been pleaded.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was a bill filed in the circuit court of Cook county by defendant in error, Betsey P. Grant, against Samuel W. Burke and, Simeon S. Burke, to have a mortgage declared paid, and to remove the same as a cloud on title, and for an injunction to restrain a sale under the power in the mortgage.

On October 14, 1874, Simeon S. Burke was the owner of lot 57, of Hayes, Shelby & Magoffin’s subdivision of block 46, canal trustees’ subdivision of section 7, township 39, north of range 14, east of the third principal meridian, in the city of Chicago, subject to a mortgage for $1000, and defendant in error was the owner of a farm near Rockford, subject to' a mortgage for $3000. On that day, Simeon Burke exchanged his Chicago lot and a stock of groceries for the farm of defendant in error. He assumed the mortgage-of $3000, with interest from January 1, 1875, and she assumed the mortgage of $1000, with interest from the same-date. The latter incumbrance had been executed by Simeon Burke to his brother, Samuel Burke, who owned it at the-time of the exchange, and was still the owner of it when he-died, after the beginning of this suit. It bore date January 1, 1873, and was given to secure a note of the same date, for-$1000, drawing interest at the rate of ten per cent per annum, due in three years atter date, and payable to the order-of the said Samuel. Although the exchange of titles was-made on October 14, 1874, yet the parties did not finally surrender possession to each other until about December 2,. 1874. On or about November 12, 1874, the Burke brothers-visited the Rockford farm, then still in the occupancy of' defendant in error, and her husband, John R. Grant. While-in Rockford, Samuel advanced the money to take up the-mortgage of $3000, and received a new mortgage on the-farm from Simeon, for $4000. There was, at this time, upon the farm, a large amount of personal property, consisting of hogs, sheep, cattle, horses, hay, plows, arid the usual, farming stock and implements. According to an inventory then taken, it was estimated to be worth between $1200 and $1300. It had been the intention of defendant in error to-sell it at public auction, and, with the proceeds, to pay the-mortgage on the Chicago lot, and some steps towards having-such a sale had already been actually taken. It is claimed by defendant in error, that during-this visit Samuel Burke-told Mrs. Grant and her- husband that the stock on the farm, was in good condition, and that if she would let his brother,. Simeon, have it, it should go in payment of the mortgage ■ for $1000, provided Mr. Grant and Simeon could agree on; the price. The proof is unquestioned that Mrs. Grant owned the personal property on the farm; that John R. Grant and Simeon Burke agreed upon $1000 as a fair price for it; that Mrs. Grant sold it on November 12, 1874, to Simeon Burke, and executed a bill of sale of it to him on December 2, 1874, and at the same time put him in possession of it; that she has never been paid a dollar for it, and that if it is not applied towards the discharge of the mortgage, she will have lost it entirely.

The only question in this case is, whether the mortgage for $1000 has been paid, or whether the acts and declarations, of Samuel W. Burke, who owned it, have been so instrumental in altering the position of the defendant in error, as to make it inequitable for him or his administratrix to enforce that mortgage against defendant in error. The testimony is conflicting, but the weight of it is in favor of defendant in error. She and her husband both swear, in substance, that Samuel Burke agreed to release the mortgage upon the conditions, above stated; that the conditions were complied with, and that they gave up the auction sale, and turned the property over to Simeon, in consequence of the statements made to. them by Samuel. The latter denies that he agreed to release the mortgage in return for a transfer of the personalty to. his brother. This evidence, however, was given after he had been stricken with paralysis, and his memory had become weakened. C. F. Wilder, an employe on the farm at the. time the Burkes made their visit, says that Samuel Burke came out to where he was at work, and examined the stock and the farming utensils, and made inquiries as to their condition, and expressed the intention of buying them. All the-circumstances of the case point to the conclusion that the object of ascertaining, with so much particularity, the amount, and character of the personal property, was to determine whether such property would be a fair exchange for the mortgage on the Chicago lot. Simeon states that John R. Grant offered to give him the property if he would take care of the Chicago mortgage, and that there, at that time, he informed his brother of Grant !s offer. Samuel himself says that he examined the stock because Simeon was talking of trading, and wanted his judgment. It thus appears from the evidence of the plaintiffs in error, that Samuel knew, when at the farm, that the exchange of the property there for the mortgage on the Chicago lot was a subject of negotiation between his brother and John B. Grant.

In the deed from Simeon Burke to defendant in error, she assumed and agreed to pay the mortgage. She was, consequently, the debtor of Samuel, and liable directly to him for the $1000. Her assumption of the mortgage was known to him, and yet he never called upon her for a cent of interest for over four years after the sale to his brother, Simeon, in November, 1874. The principal of the mortgage became due on January 1, 1876, and yet it was not until some time after the beginning of the year 1879, that Mrs. Grant was asked to pay either principal or interest. Simeon' Burke states that he agreed to pay the mortgage to his brother, and that, in consideration of such agreement, the farm property was delivered to him. It does not seem reasonable, however, that John B. Grant would part with valuable property of his wife, and take nothing for it except the unsecured agreement of a man who was heavily in debt, and forced to rely on loans from his brother to meet his obligations. Simeon Burke stands alone in his account of the transaction. Mr. and Mrs. Grant, and Mrs. Manning, all testify that Samuel Burke agreed to release the mortgage,—not that Simeon agreed to assume it. They are confirmed by the testimony of Mr. Marshall, one of the witnesses of plaintiffs in error. He states that when he drew the bill of sale and another instrument, which has since been lost, such other instrument was to be signed or guaranteed by Samuel Burke, and that Mrs. Brant was to be indemnified against a mortgage, or the release of a mortgage was to be procured. This coincides with the evidence of J. Br Grant, to the effect that a release was actually drawn and sent down to Bloomington, for Samuel to sign.

Mrs. Grant and her husband state that Samuel Burke explained to them how he was to be compensated for his release of the mortgage on the Chicago lot. As already stated, he had taken from his brother, Simeon, a mortgage on the farm for $4000, of which $1000 was to be used in buying stock, but by reason of the purchase of the personal property with the release of the Chicago mortgage, the farm was already stocked, and it would not be necessary to advance the $1000 for that purpose. In other words, Samuel was to receive $1000 of the $4000 secured on the farm, in exchange for the $1000 on the Chicago lot released to Mrs. Grant. Simeon Burke has since executed two chattel mortgages to his brother upon this"identical property, one of $500, in May or June, 1875, and one of $900, in 1879. The fact that Samuel took these mortgages, shows that he must have regarded the property as belonging to Simeon; but he could not have so regarded it if Simeon’s version of the matter is correct. If the property had been sold to Simeon Burke upon condition that the latter should pay the mortgage, no one knew better than Samuel that the condition had not been complied with, and with such knowledge, and in view of the active part he had taken in effecting the transfer of the personalty to his brother, he was not dealing justly towards the defendant in error in taking chattel mortgages upon her property, which had been only conditionally sold to Simeon, and which Simeon had not yet paid for.

The evidence shows that the conduct of Samuel W. Burke led defendant in error to abandon the proposed sale of her property at public auction, and to turn it over to Simeon Burke, in the belief and expectation that the incumbrance on the lot in Chicago would be released. The doctrine of estoppel in pais is clearly applicable. Defendant in error has been induced, by Samuel Burke to occupy a position she would not have occupied but for his acts and declarations. (Hefner v. Vandolah, 57 Ill. 520; Dickerson v. Colgrove, 10 Otto, 579; Faxon v. Faxon, 28 Mich. 159; Tucker v. Conwell, 67 Ill. 552.) It would therefore be inequitable to permit him to enforce this mortgage against her.

The decree of the Appellate Court is affirmed.

Decree affirmed.

This case was originally assigned to Mr. Justice Dickey. No opinion having been written by him before his death, the record was re-assigned at the November term, 1885.


author: Mr. Justice Tunnicliff

text:
    Ralph Osborn et al. v. The Jefferson National Bank of Steubenville.

      Filed at Ottawa January 25, 1886.

    1. Will—subsequent birth of child—effect thereof on the provisions in the will. Section 10 of the act in relation to descents, in which the rights of a child born to a testator after he has made a will, are prescribed, applies only to children for whom no, provision is made by the will, and as to whom it does not appear by the will that they were intentionally disinherited.
    2. Same — what■ will amount to malting provision for an after-born child. A married woman in 1873 made her will, by which she devised to her husband, and his heirs and assigns, all her estate, provided he should survive her, but in case he should not' survive her, and she should die leaving children, then to her child or children, etc.- In 1880 she died, leaving her husband surviving, and three children, all born after the date of the will: Held, that the testatrix, by the will, had made provision for her children, within the meaning of section 10 of the act relating to descents, although depending upon a contingency.
    3. As a testator may totally disinherit his after-born child or children by his will, it follows that he may limit his bounty to them to anything, no matter how insignificant it may he, and make its enjoyment depend upon any contingency, however remote.
    4. Same—whether a will shows an intention to disinherit after-born child. A testatrix, in 1873, by her will, devised all her estate to her husband, in case he should survive her, otherwise to any child or children she might leave. She died in 1880, leaving her surviving three children, born after the execution of the will, and her husband: Held, that the will showed a clear intention on the part of the testatrix to disinherit her after-born children, in case of her husband surviving her.
    5. Same—rule of construction—giving effect to the intention. It is elementary in 'the construction of wills, that the intention of the testator must he given effect to, and to ascertain this the whole instrument must be looked to and taken into consideration.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Rosenthal & Pence, for the appellants:
    At common law the will of an unmarried woman was revoked by her marriage, and a married woman could not will her estate generally, but only her equitable separate estate.
    At common law the will of an unmarried man was revoked by marriage and the birth of a child. Tyler v. Tyler, 19 Ill. . By the statutes of this State, the marriage of a man or woman operates to revoke his or her will. Rev. Stat. chap. 39, sec. 10; Duryea v. Duryea, 85 Ill. 43.
    The provision to be made by will for an after-born child, by section 10 of chapter 39, relating to descents, to prevent a revocation must be certain and absolute in its character, and not contingent. It must not be dependent upon some other circumstance or future event, which may or may not result in a provision for such child. Waterman v. Hawkins, 63 Me. 156; Holman v. Copeland, 10 Ga. 81; 1 Williams on Executors, 239, (202,) note.
    The statute prevents disinheritance by implication. The will in this case does not disinherit the testatrix’s children.
    As to decisions in other States on similar or somewhat analogous statutes, see Walker v. Hall, 34 Pa. St. 483; Wil

      son v. Fosket, 6 Metc. 404; Buckley v. Girard, 123 Mass. 11; Bradley v. Bradley, 24 Mo. 318; Hagerdine v. Pulte, 27 id. 423; Hockensmith v. Slusher, 26 id. 237; 54 id 500.
    Messrs. Jewett, Norton & Jewett, for the appellee:
    Section 10 of the Statute of Descents is in terms limited to the ease of after-born children for whom “no provision” is made in the will. It has no application to children for whom any provision is made. There is no requirement as to the nature or extent of such provision.
    The intention to disinherit need not be stated in a formal manner. It is enough if that appears by the will, taken as a whole. That intention does appear, although it is made to depend upon the contingency of survivorship. The testatrix intended that if her husband survived he should take the estate to the exclusion of the children.
    Under a statute that a child having, no legacy given him by will, should be allowed to share in the estate, it has been held that any mention of the child in the will was sufficient to prevent the operation of the statute. (Wilder v. Goss, 14 Mass. 356.) So any evidence from the will that the child was not forgotten or intentionally omitted, was held sufficient. Tucker v. City of Boston, 18 Pick. 162; Wilson v. Fosket, 6 Metc. 400; Converse v. Wales, 4 Allen, 512.
    The intention to disinherit may appear from any language of the will which states or implies it. Ramsdell v. Wentworth, 106 Mass. 320.
    The presumption that the omission to name or provide for a child was unintentional, is rebutted when the tenor of the will, or any part of it, indicates that the child was not forgotten. McCourtney v. Mathes, 47 Mo. 533; Pounds v. Dole, 48 id. 270; Hockensmith v. Slusher, 26 id. 237.

      Messrs. E. L. & H. C. Taylor, and Mr. Wm. K. Rogers, also for the appellants:
    To disinherit an after-born child by will, one of two things must appear: either a provision must be made for such child, or the intention to disinherit must appear from the will. The provision must be certain and positive, and not contingent. Holman v. Copeland, 10 Ga. 81; Waterman v. Hawkins, 63 Me. 156; Negus v. Negus, 46 Iowa, 488; Bancroft v. Ives, 3 Gray, 367.
    The intention to disinherit must appear in such certain and absolute terms as to admit of no doubt. The general rule of arriving at the intent from the whole will, does not obtain on this question. The child being unborn is the common reason why it is not mentioned or provided for, and for this very reason the statute steps in and says it shall not be disinherited by implication. It will not do to say there was here an intention to disinherit unborn children simply because they are omitted, or to say that because the whole estate is devised to some one else, therefore there must have been, from this fact, the intention to disinherit. The object and purpose of the statute is to protect after-born children, and it should not be held to be defeated by the omission of the name of a child not yet bom or even begotten.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

Prior to 1873, Margaret Andrews inherited from her father’s estate the property in controversy, situated in the city of Chicago. In that year she intermarried with Francis S. Osborn, and soon after, being about to go abroad, made and published her last will and testament, the material parts of which, so far as the questions here are involved, read as follows:

“Item First—I give, devise and bequeath unto my dear husband, Francis S. Osborn, and to his heirs and assigns, absolutely, all my estate, property and effects, real and personal, in whatever it may consist or wherever situated at the time of my decease, provided my said husband shall survive me.
“Item Second—In case my husband, Francis, shall not survive me, and I shall die leaving a child or children, then I give, devise and bequeath unto such child, or if there be more than one, then to such children, equally, and to the heirs and assigns of such child or children, forever, all my estate, property and effects, real and personal, in' whatever it may consist or wherever situated at the time of my decease. ”

She died in 1880, without having revoked or changed the will, leaving her husband and three children, the issue of the marriage, surviving her, viz, Ralph, about eleven, Abner, about six, and Bliphalet, about five years of age. She never had any other children. At the time of the execution of the will and of her death, she was domiciled in the State of Ohio, where, afterward, and on the 3d day of March, 1881, the will was admitted to probate. Subsequent thereto, Francis S. Osborn gave mortgages upon the property, and it was also attached and sold by his creditors. A bill having been filed to foreclose one of these mortgages, to which the children were made parties, they answered by their guardian ad litem, and also filed a cross-bill setting forth the facts herein stated, and claiming that under them, and by virtue of section 10 of the Statutes of Illinois, entitled “Descents, ” they are the absolute owners in fee of the premises, and that their father, said Francis S. Osborn, had only a dower interest in said lands at the time of giving the mortgages and of the attachment and sale of the premises, and pray that the same may be set aside as a cloud upon their title. A demurrer was sustained to this cross-bill, and the appellants abiding thereby, the cross-bill was dismissed.

The only question for our consideration regards the construction of the section of the statute referred to, which is as follows:

“If, after making a last will and testament, a child shall-be born to any testator, and no provision be made in such will for such child, the will shall not, on that account, be revoked; but unless it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given shall be abated in equal proportions, to raise a portion for such child equal to that which such child would have been entitled to receive out of the estate of such testator if he had died intestate; and a marriage shall be deemed a revocation of a prior will. ”

It is very clear that if there is any “provision” made in this will for these children, the appellants, or if it appears by the will that it was the intention of the testatrix to disinherit them, then, in either ease, the will must stand, and the decree dismissing the cross-bill be affirmed. The contention of the appellants is, that to be a “provision” for them, within the meaning of the statute, the devise or bequest in their favor must be certain and absolute, and dependent upon no condition or contingency whatever, and that as the devise to them, in this case, is only in the event that the testatrix’s husband, Francis, should not survive her, there can not be said to be any “provision” made for them by the will; and as to the intention to disinherit, it. is insisted that this must not be found by the court from any resort to construction, implication or inference to be drawm from the will, by reason of anything therein contained, unless this intention is so stated in the will in express terms. In our opinion, neither of these constructions should be placed upon the statute. As to the provision for the after-born children, the statute is silent as to its extent, or whether it shall be reasonable or not, as to when it shall commence or when terminate. By its plain, unambiguous meaning, it applies only to children for whom no provision is made by the' will, and as to whom it does not appear by the will that they were intentionally disinherited. If any provision is made for them, then they do not come within the purview of the statute. The testatrix was to be the sole judge of what this provision should be, and that the same was not to be left for the determination of the courts is manifest by the second clause of the section, which authorizes the disinheritance of such child or children altogether, if the testator shall simply indicate by his will that such was his intention. The greater includes the less, and as the testator may totally disinherit such after-born child or children, it would seem to follow that he may limit h'is bequests to them, if he makes any, to anything, no matter how insignificant it may be, and its enjoyment upon any contingency, however remote.

But whether any provision is made for after-born children or not, the will, under this statute, must still remain as originally made, “if it shall appear by such will that it was the intention of the testator to disinherit such child” or children. Does such intention appear by this will ? That it does, in case the husband of the testatrix survived her, is too plain to admit of argument. A mere reading of the instrument is all that is required to demonstrate that. But counsel urge that this intention must be stated in express terms in the will itself. This the legislature have not, by the statute, seen proper to require, and we have no right or power to add to it words which would entirely change its plain meaning, and thus virtually repeal the statute.

It is elementary in the construction of wills that the intention of the testator must be given effect to, and to ascertain this, the whole will should bé looked to and taken into consideration. The testatrix in this case had the power to disinherit her after-born children, and she has seen proper to do it upon a contingency which has happened, and great as the hardship to them may be, we feel constrained to hold that the will, under this statute, is valid, and must be enforced as their mother made it and allowed it to remain unrevoked and unchanged till her death.

The decree below is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Thomas H. Ball et al. v. Ferdinand Siegel et al.

      Filed at Ottawa January 25, 1886.

    1. Trade mark—in what it may consist—and whether equity will interpose to protect it. The words “health-preserving, ” preceding the word “corset,” in the name adopted by the manufacturer of corsets made under letters patent, but describe a quality of the corset, or the effect which its use will produce, and can not therefore be employed as a trade mark.
    2. It is well settled that directions, advertisements, notices, etc., constitute no part of a trade mark, and also that no one can obtain a trade mark in the form, appearance or finish of his goods, so that another may not lawfully make his goods like them, nor can there be a trade mark in the form or color of a package or box.
    3. Even if a party has a trade mark in the name of “Ball,” and picture and words and form of lettering on the labels pasted on his boxes containing corsets, there is no infringement of the same when a different name is used by another manufacturer, with a picture, words and form of lettering on the labels pasted on his boxes so totally unlike those of the former as that no one can reasonably mistake the one for the other.
    4. As a general rule, exact similitude is not required to constitute an infringement of a trade mark, or to entitle the complaining party to protection; but if the words of the alleged infringed device are such as would be likely to mislead persons in the ordinary course of purchasing the goods, and induce them to suppose they were purchasing the same article, then the similitude is such as entitles the injured party to equitable protection, if he takes seasonable measures to assert his rights and prevent their continued invasion.
    5. But a court of equity is not bound to interfere when ordinary attention will enable purchasers to discriminate between the trade marks used by different parties.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    This was a hill in equity, in the Superior Court of Cook county, by Thomas H. Ball, Herman Prenzlauer and Simon Florsheim, against Ferdinand Siegel, Henry Siegel, Emanuel Siegel and Gustav Schilling, to enjoin the use of appellants’ trade mark, adopted to designate corsets manufactured by them, and also to enjoin appellees from copying hand-bills, labels, advertisements, and circulars and bills. The bill alleges that appellants are owners of certain letters patent for corsets of a certain construction, which they commenced to manufacture in 1880; that these corsets were constructed with coiled wire elastic sections in the sides of the corsets, extending from under the arms down over the hips; that these coiled wire elastic sections gave the corset a different exterior appearance from any other known corsets, so that cuts representing these corsets appeared differently from any other cuts or pictures; that in 1880 the appellants adopted the name of “Ball’s Health-preserving Corsets” for their corsets, which they manufactured under these patents; that they printed this name upon a label which they applied to the end of the box in which each corset 'Was put up and sold; that they also put a label of the size of the cover of this corset box thereon, on which were printed certificates of recommendation signed by eminent physicians of Chicago; and they also printed a circular or hand-bill, setting forth the special merits of their new corsets, one of which was placed in each box with the corset; that in addition to these three labels that accompanied each corset sold by appellants, appellants printed what they termed an advertisement, showing a picture of their particular style of corset. They set forth in this advertisement the merits of their particular style of corset, calling it “Ball’s Health-preserving Corset, ” made of elastic sections of coiled wire spring, etc. In addition to this, appellants also issued what they called a bill of sale circular, which they placed in the hands of merchants, setting forth the merits of the “Ball Health-preserving Corsets.” They also issued an envelope, of the size used by merchants who sell small packages, upon which was the picture of the corset, with the name of “Ball’s Health-preserving Corset,” and upon the reverse side the recommendation of the physicians, and this envelope was distributed to merchants, etc., as an advertisement. The bill then charges that after appellants had established a large trade for their corsets, appellees commenced manufacturing precisely the same corset; that appellees adopted for the name of their corset, “Schilling’s Health-preserving Corset;” that they obtained certificates from the same number of prominent physicians of Chicago as appellants had, using the same language, and having the respective certificates of about the same length as the certificates of appellants, and had them printed in the same form on a label of a size to exactly fit the top of the cover of the box, designating their corset as “ Schilling’s Health-preserving Corset; ” that appellees printed the same circular or hand-bill which the appellants had printed and placed inside of each box containing their “Ball’s Health-preserving Corset,” using substantially the same language, except heading it “Dr. Schilling’s Health-preserving Corset,” and placed one of them in each box with each corset; that appellees also copied the advertisement, making the same cut representing the same elastic coiled wire sections in the corset, and that appellees also copied the bill of sale circular that was furnished to the dealers largely, excepting they called their corset “Schilling’s Health-preserving Corset,” having substantially the same language of recommendation and commendation.
    Motion was made before the Superior Court for a temporary injunction, and the court denied the motion. Thereupon the counsel for the respective parties entered into a stipulation, which, omitting the caption and signatures of counsel, is as follows:
    “It is stipulated and agreed by and between the above named parties, through their solicitors, that the defendants’ demurrer in said cause may he withdrawn by leave of the court; that the judge may enter an order dismissing the bill in this ease, and allow an appeal to the Appellate Court for the First District, to the complainants, from said decision dismissing the bill, upon a sufficient bond being filed by the complainants; that said hearing on said 21st day of May-may be considered as a final hearing, and that the several affidavits and exhibits and other proofs adduced and submitted by the complainants may be considered as original evidence tending to prove the facts alleged in the complainants’ bill of complaint, and the affidavits and other proofs adduced and submitted as evidence on the part of the defendants at said hearing may be considered as original evidence tending to show the facts as claimed by the defendants, and that the bill of exceptions in this case to be made and certified to by the court may consist of the bill of complaint and the affidavits, exhibits and proofs adduced, respectively, on the part of the complainants and defendants, so that the evidence in the ease to be considered by the Appellate Court may be made up of said affidavits and exhibits adduced by the respective parties, and now on file in said cause; and the clerk, in making up the bill of exceptions, shall incorporate in said bill, as evidence in the case, the aforesaid affidavits and exhibits used by the respective parties as aforesaid, all such evidence to be considered by the Appellate Court, subject to all legal objections. ”
    In pursuance thereto the court ordered and decreed, first, that the defendants be allowed to withdraw their demurrer heretofore filed herein; and second, that the bill of complaint herein be dismissed at the cost of the complainants, the complainants’ motion for an injunction having been overruled. And the complainants pray an appeal from the order of the court dismissing the bill of complaint, to the Appellate Court in and for the First District, which is allowed on filing the complainants’ individual bond, without security, in the sum of $300, the said bond to be filed on or before the 3d day of September, A. D. 1883; and the certificate of evidence, prepared in accordance with the said stipulation on file, shall be signed and filed on or before the 1st day of October, 1883. This order and decree was affirmed in the Appellate Court, and the present appeal is from that judgment.
    Messrs. Coburn & Thacher, for the appellants:
    It is not necessary that the trade mark should have been attached to the corsets. The trade mark adopted need not be affixed to the goods, but it will be sufficient if it is so connected with the goods as to be visible, and so that the goods may be distinguished by it. Candee, Swan & Co. v. Deere & Co. 54 Ill. 439.
    The words, “Dr.- Morse’s Indian Boot Pills, ” were held to be a good trade mark when applied to boxes containing pills. (Comstock v. White, 18 How. Pr. 421.) “Parlor Matches” was held to be a good trade mark on a box containing matches. (Swift v. Dey, 4 Rob. 611.) The words, “Akron Cement, ” was held to be a good trade mark on packages containing cement. (Newman v. Alvord, 49 Barb. 588.) In Croft v. Day, 7 Beav. 84, the court held that the complainant had a valid trade mark in the words, “Day & Martin Blacking, ” when applied to bottles containing blacking, and to trade cards covering the same. In Braham v. Bustard, 9 L. P. (N. S.) 199, the court held that the complainant was entitled to the words, “Excelsior White Soft Soap,” on jars or casks containing soap.
    If the appellees had the right to make corsets 'exactly like those made by appellants, they did not have the right to copy appellants’ labels, hand-bills, circulars and advertisements, and to attach them to their goods, so as to deceive and defraud” the public, and sell their goods upon the reputation created for the goods by the appellants. This is such a fraud as will justify an injunction. Knott v. Morgan, 2 Keen, 213; Williams v. Johnson, 2 Bos. 1; McLean v. Fleming, 96 U. S. 245; Croft v. Day, 7 Beav. 84.

      Messrs. Flower, Remy & Gregory, and Mr. John Chumasero, for the appellees:
    The only way in which a party can acquire the exclusive right to a particular name or designation, is, in the case of a book or publication, by copyrighting under the act of Congress ; and in the case of firms, etc., by incorporation under the statute. Where no incorporation is had, the legal right in the exclusive use of the name must first be established at law before a court of equity will interfere. Newby v. Railroad Co. 1 Deady, (U. S. C.) 609.
    The words and phrase, “Health-preserving Corset,” can not constitute, or be appropriated by the appellants, as an exclusive trade mark. Such descriptive names or titles are not subjects of exclusive appropriation. Cazwell v. Davis, 58 N. Y. 223; Canal Co. v. Clark, 13 Wall. 311; Wolf v. Goular, 18 How. Pr. 64; Canham v. Jones, 2 Veasy & Beams, 218; Burke v. Gassen, 45 Cal. 468; Choynoke v. Cohen, 39 id. 501.
    When the name or words used are so used to signify a fact, or when, with what purpose soever used, they do signify a fact which others may, by the use of them, express with equal truth, they have an equal right to them for that purpose. 58 N. Y. 235; Collins Co. v. Cowen, 3 Kay & J. 428.
    Injunction will not be granted until the right has been judicially determined, in cases of this nature, unless the ease is clear and free from all doubt. High on Injunctions, sec. 1097, p. 719.
    Where the name or words claimed to be protected as a trade mark is or are “generic, ” or merely “descriptive” of the article manufactured, and can be applied with truth by other parties, they are not entitled to legal protection as a trade mark. Dunbar v. Glenn, 42 Wis. 137; Canal Co. v. Clark, 13 Wall. 234.
    In support of these views, see Wolfe v. Goulard, 18 How. Pr. 64; Fetridge v. Wells, 4 Abb. Pr. 144; Town v. Stetson,
      5 id. (N. S.) 218; Phalon v. Wright, 5 Phillips, 464; Perry v. Trufitt, 6 Beav. 66; Millington v. Fox, 3 M. & C. 338.
    No circular, price list or advertisement, no matter how frequently repeated, can constitute a trade mark. Candee v. Deere, 54 Ill. 439.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The words, “health-preserving, ” preceding the word, “corset, ” beyond all question but describe a quality of the corset, —i. e., an effect which its use will produce,—and can not, therefore, be employed as a trade mark. Amoskeag Manf. Co. v. Spear, 2 Sandf. C. C. 599; Canal Co. v. Clark, 13 Wall. 311; Manufacturing Co. v. Francis, 101 U. S. (11 Otto,) 51; Gilman v. Hunnewel et al. 122 Mass. 122; Larrabee v. Lewis, 67 Ga. 561; Royal Baking Powder Co. v. Sherrell, 93 N. Y. 331. Many of the cases illustrating this principle will be found collected, in Freeman’s note to Partridge v. Menck, 47 Am. Dec. 292, 293. See, also, Upton on Trade Marks, 114, et seq.; Brown on Trade Marks, secs. 164, 657, 658. It is well settled, moreover, that directions, advertisements, notices, etc., constitute no part of a trade mark, (Candee, Swan & Co. v. Deere & Co. 54 Ill. 462,) and that no one can obtain a trade mark in the form, appearance or finish of his goods, so that another can not lawfully make his goods like them. (Candee, Swan & Co. v. Deere & Co. supra; Brown on Trade Marks, sec. 605.) Nor can there be a trade mark in the form or color of a package or box. Morgan’s Sons Co. v. Troxell, 89 N. Y. 292; Moorman v. Hoge, 2 Sawyer, 78; Harrington v. Libby, 14 Blatchf. 128.

Conceding that appellants had a trade mark in the name of “Ball, ” and in the picture and words and form of lettering on the labels pasted on their boxes, it is evident that the name, “ Schilling, ” or “Dr. Schilling, ” could not be mistaken for that of “Ball, ” and that if the picture, words and form of lettering on the labels pasted on appellees’ boxes were totally unlike those pasted on appellants’ boxes, the one could not reasonably be mistaken for the other, and there could, in neither respect, be any infringement of a trade mark. The only question is, whether appellees were, hy devices and false representations, as charged in the bill, selling or causing to be sold their corset, when the purchasers were desiring to purchase, and supposed they were purchasing, appellants’ corset.

Affidavits were read in evidence by appellants to prove active efforts by appellees to sell Schilling’s corsets as Ball’s corsets; but some of them were inadmissible becaus.6 based on mere hearsay, and others were insufficient because proving acts only of third parties, and not sufficiently connecting appellees with them, either by showing that they were done under the direction of appellees or with their approval. The balance of appellants’ affidavits were neutralized by counter-affidavits on behalf of appellees—at least so far that we can not say the allegations of the bill resting on them for support' are clearly proved. The boxes in which appellees’ corsets are placed to be sold, are of the same shape, size and general color as those in which appellants’ corsets are placed to be sold. It does not appear, however, that there is anything unusual in the shape or structure or color of these boxes, and, so far as we perceive, this similarity may result from the use required, and the convenience of the makers of the boxes —at all events, it does not appear that this may not be so, and we regard it a reasonable inference in the absence of all proof as to purpose or motive. The labels on the boxes are dissimilar. That on the end of appellants’ box has the picture of a corset, and reads: “Ball’s Health-preserving Corset.—Drab.—. . . . Size. ” That on the end of appellees’ box has no picture of a corset or of anything else. It reads: “Dr. Schilling’s Self-adjusting Corset.—Drab.—.... Size.” The lettering is unlike in every respect. The types are different, the lines run in different directions, and the reading is different. The most casual observer would, at any distance at which he could distinguish the appearance of these labels from labels of any other description, distinguish the difference. The label on the top of the lid of appellants’ box has, in the centre, lengthwise, a picture of a corset, with lettering on each side extending irregularly upward and downward, parallel with and corresponding to the irregular outline of the sides of the corset, reading, on the one side, “Coiled Spring,” and on the other, “Elastic Section, ” and over the picture of the corset, in a single line running lengthwise with the label, the beginning and ending being about equi-distant from the ends, is printed, in caps, the words, “What Eminent Chicago Physicians say of it.” The label on the top of the lid of appellees’ box has no picture of a corset upon it, but it has, in the centre, lengthwise of the label, a picture of Dr. Schilling. There is no lettering of any kind, either extending perpendicularly, parallel with, or over this picture, as on the other label; but to the right and left of the picture, in the upper margin and near each end of the lid, in distinct single lines of caps, are printed, in each line, the words, “Opinions of Eminent Physicians of Chicago.” On both labels, on each side of the pictures, are physicians’ certificates,—those on the one certifying to the excellence of the “Ball Corset, ” and those on the other to that of the “Schilling Corset,”—and appended to these are what purport to be fac similes of the signatures of the respective certifying physicians. The same names do not certify to each certificate, and the phraseology is not the same, in form, in each ease, and the fac similes are as different as the signatures of different individuals ordinarily are. Along the upper sides and ends of the lids of the boxes of each party is a narrow border, but that on appellants’ box consists of small, alternate stripes of red and white—the red stripes being, perhaps, four times broader than those of the white—while the border on appellees’ box is plain red.

It is thus apparent that in respect to the tops as well as to the ends of the boxes the difference can be detected by even casual observation, as far as one box of this size and shape can, by the use of dissimilar labels, be distinguished from another.

With respect to the circulars in each box, there is a palpable distinction, obvious to any one, even without reading. The display letters in the head lines are entirely different in shape, shading and size, and the paper in appellants’ box is shorter and narrower than that in appellees’ box, and there is a difference in the quality and whiteness of the paper, and in the form, shading and size of the letters in the body of the circulars, plainly distinguishable as far as the outlines of the letters are visible. At the head of appellants’, in large caps, is the word “Ball’s. ” At the bead of appellees’, also in large caps, are the words, “Dr. Schilling’s.” One circular commends “Ball’s” corset, and the other commends that of “Dr. Schilling. ” It is true that in cases of this kind, as a general rule, exact similitude is not required to constitute an infringement, or to entitle the complaining party to protection ; but if the form, marks, contents, words, or other special arrangement or general appearance of the words of the alleged infringer’s device, are such as would be likely to mislead persons in the ordinary course of purchasing the goods, and induce them to suppose that they were purchasing the genuine article, then the similitude is such as entitles the injured party to equitable protection, if he takes seasonable measures to assert his rights and prevent their continued invasion. (Thompson’s note to Popham v. Cole, 23 Am. Rep. 28.) But the court is not bound to interfere where ordinary attention will enable purchasers to discriminate between the trade marks used by different parties. Popham v. Cole, 66 N. Y. 69; 23 Am. Rep. 22, and eases there cited; Morgan’s Sons Co. v. Troxell, 89 N. Y. 292; 42 Am. Rep. 294; Manufacturing Co. v. Francis, supra; Reed v. Richardson, 45 L. T. (N. S.) 54; Beard v. Turner, 13 id. 736; Leidesdorf v. Flint, 7 N. W. Rep. 174; Eggers v. Heink, 63 Cal. 445.

Applying this rule to the facts before us, there clearly ought to be no relief decreed. To entitle a complainant, in cases of this character, to the relief here sought, the right must be clearly established by the evidence. Partridge v. Menck, 2 Barb. Ch. 101; High on Injunctions, (1st ed.) sec. 676; Hilliard on Injunctions, p. 407, sec. 43. In no view can this be said of the appellants’ right, under the legitimate, pertinent evidence in this record.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

This ease, when first considered, was assigned to the late Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, it was re-assigned at the November term, 1885.