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be treated as loans, and that they should be given preference over other claimants as outside creditors, and that though the evidence does not show the board formally authorized their taking or that the association re. ceived the actual benefit of the money, still the active business agent of the association received it with the knowledge of some of the directors and officers, and although Sachsel may have appropriated it all to his own use, the association is estopped to deny its liability. We are satisfied with the findings of the superior and Appellate Courts that the moneys these claimants left with Sachsel were placed with him on the theory that they were deposits in the association upon which interest was to be paid, but we hold that the association did not, in fact, receive these deposits, or any part of them, and that Sachsel, the secretary, did not have authority from the association to receive them for it, nor was he held out by the association as having such authority, and as the association did not authorize their receipt and did not receive the benefit of them it is not estopped to deny its liability and it is not bound by the unauthorized acts of Sachsel, and such claimants are not entitled to be reimbursed for such moneys out of the assets of the association.
As to Truka and those found to be holders of matured stock, the evidence shows that orders were issued by the association, payable to Albert Truka, Godfried Schurz, August Czanzkowski, Heinrich Semmler, Francis X. Lang, 0. A. Arzbacker, Gottfried Karnowski, Maria B. Didier, Julia Patzen, Carl Kadow, Joseph Bischke, John Reich, Katharina Mueller, Anna Yonovska, Kate Sabachenska, Maria Reinhardt and Albert Kilchmann, for their stock, and the cash-book shows they were paid, or at least credit is there taken for them, and they aggre. gate nearly $14,000. The chancellor and the Appellate Court found, however, that they had never received the orders or the money for their stock, and our examina.
tion of the evidence leads us to the same conclusion. There were no orders issued to August Duppke, John J. Krauth and Otto Triphahn, but the evidence sufficiently shows their stock had matured.
It is insisted by the plaintiff in error that these stockholders are not entitled to a decree in their favor because of a variance between the allegations of their petitions and the proof. Here is a fund in the bands of the court for distribution among those entitled to it. The claimants are not in the status of original suitors, nor do we think the same strictness of allegation should be applied to them. We are disposed to hold that the allegations were sufficient in this character of proceeding, and find they are accordingly entitled to recover the respective amounts found due them from the association. We do not, however, concur in the finding that these claimants have prior claims or liens to the other creditors of said association. They were stockholders and members of the association, and while the evidence shows that their stock had matured, it also shows that the warrants of the association had not come to their hands, or did they, or either of them, hold a check upon any bank having the funds of the association on deposit. In fact, we are unable to find anything in the evidence that would warrant an order giving them priority. Chapman v. Young, 65 Ill. App. 131; Gibson v. Safety Homestead Ass. 170 Ill. 44.
The judgment of the Appellate Court is affirmed as to Kriete and his class, claiming for deposits, and reversed as to Truka and his class, claiming as matured stock. holders, in so far as it gives them priority over the other creditors, and the cause is remanded to the superior court of Cook county with directions to enter a decree in conformity with this opinion.
Affirmed in part and reversed in part.
THE BATES MACHINE COMPANY
ALBERT J. BATES et al.
Opinion filed October 24, 1901.
1. CONTRACTS—when contract is not an agreement to assign “in gross" all inventions. A contract between a manufacturer and a third person to form a corporation for the purpose of enlarging the business, by which the manufacturer agrees to assign all his “patents now in existence and all inventions hereafter made” to the corporation, and to devote his energies and inventions to the business the same as he is “now doing,” contemplates only such inventions as relate to the particular business, and is not void as an assignment, in gross, of all designs and inventions.
2. SAME—when agreement to form a partnership or corporation is not void for want of mutuality. An agreement to form a corporation is not void, for want of mutuality, because one of the parties contributes capital while the others contribute their skill and gifts of invention instead of money.
3. SPECIFIC PERFORMANCE-specific performance is not a matter of right. A prayer for specific performance is addressed to the sound judicial discretion of the chancellor, and will pot be granted where specific enforcement of the contract would work an injustice.
4. INVENTIONS-invention may, in equity, become the property of the inventor's employer. An inventor may, for a consideration, legally contract to devote his skill and genius to an invention to be the property of his employer when completed and patented, and under a contract to that effect the invention becomes, in equity, the property of the employer.
Bates Machine Co. v. Bates, 87 Ill. App. 225, affirmed.
APPEAL from the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of Will county; the Hon. R. W. HILSCHER, Judge, presiding
GARNSEY & KNOX, (L. L. BOND, of counsel,) for appellant.
C. W. BROWN, (JOHN R. BENNETT, of counsel,) for appellees.
Mr. JUSTICE Boggs delivered the opinion of the court:
The appellant company filed its bill in chancery in the circuit court of Will county, against the appellees, for a decree commanding the appellees to assign to the appellant company a certain patent for a woven wire fence, and a certain other patent for a machine to weave such woven wire fence. The appellees, defendants to the bill, filed answers thereto, and the appellee the Consolidated Steel and Wire Company filed its cross-bill against the Bates Machine Company, as the sole defendant, setting up its claim that it was the owner of the patents for the wire fence and for the machine to manufacture the same, and alleging that the defendant to the cross-bill, the Bates Machine Company, was engaged in building certain machines covered by said patent for another company, and that the same, after completion, would be removed out of the jurisdiction of the court. The cross-bill prayed for temporary injunction against the removal of said machines, and also for perpetual injunction against the Bates Machine Company from any further construction or work upon the machines protected by said patent and from delivering them to the company said to have ordered them; from making or using them or like machines; from asserting any right to the patent for said machine, and praying that the machines already constructed be delivered up to the complainant in the cross-bill to be destroyed, and that the complainant in the cross-bill might have such other and further relief as the nature of the case demanded. An answer was filed to the cross-bill, and replications to the answers to the original bill were also tiled. After the hearing of the cause the court entered a decree dismissing the original bill for want of equity, declared the equities were with the complainant in the cross-bill, and enjoined the Bates Machine Company from any futher construction or work upon the machines mentioned therein as being under con
tract for other parties than the complainant in the crossbill, from delivering said machines, and from making or making any use of the same or like machines. It was further decreed by the court that the complainant in the cross-bill was the owner, both in law and in equity, of patent No. 577,639, which is the patent for the machine for making the fence as originally designed; No. 591,996, the patent for the improved machine for making the fence, and No. 561, 193, the patent for the woven wire fence. The Appellate Court for the Second District affirmed the decree of the circuit court, and a further appeal has been perfected to this court.
Prior to the 28th day of January, 1888, appellee A. J. Bates, and his brother, W. 0. Bates, were engaged in business in the city of Joliet as inventors and manufacturers of machinery for making wire nails, wire fencing, and in the business of repairing machinery. They were the owners, jointly, of two patents for making barb wire fencing, and were desirous of extending and enlarging their business. They had acquired, in the way of machinery, tools and appliances, property of the inventoried value (including some book accounts) of $10,000. On the day last named they made a written agreement with one Joseph Winterbotham, as follows: “A. J. BATES.
W. O. BATES.
of Washington and Desplaines Streets.-Inventors
...18.... "Be it known that A. J. Bates and W. O. Bates, under the name of Bates Bros., being desirous of extending and enlarging their present business, have united their interests with Joseph Winterbotham, of Joliet, Illinois, under the following: Said A. J. and W.O. Bates put their entire business, book accounts, notes, machinery, patterns, stock, etc., manufactured and unmanufactured, also all patents now in existence and all inventions hereafter made by either the said A. J. or W. O. Bates. In consideration of the above, Joseph Winterbotham agrees to put