« AnteriorContinuar »
C. Platt, etc., v. Oscar St. Clair et al., above, they had taken for the purpose of distin. described, in which an injunction was issued guishing their property, and thereby deprivagainst the defendants therein on July 21, ing them of the fair profits of their business 1883; that it is only upon the ground that by attracting custom on false representation the United States Express Company, organi that carriages, really belonging to the dezed under the laws of New York, was a cor fendant, belonged and were under the man
poration, that the court could acquire juris agement of the plaintiff. It was there held • diction in the above case, and, if it be held that, although there was no property in the
to be a corporation, the allegations in the bill words “The Guinea Coal Company," yet it are not sufficient to give the court jurisdic was a fraud on a person who had an estion, which it did not have; that the statute tablished trade and carried it on under a of our state which requires foreign corpora given name that some other person should tions to obtain a license from the Secretary assume the same name with a slight alteraof State in order to do business in this state tion, as “The Pall Mall Guinea Coal Comwas enacted more than 10 years after the de. pany,” in such a way as to induce persons cision in the cases referred to; that, if it be to deal with him in the belief that they are a corporation, the United States Express dealing with the person who has given a Company of New York has no right to do reputation to the name; in other words, business in this state, as it is not licensed to "that it is a fraud on the part of a defendant do so. Second. If said express company is to set up business under such a designation not incorporated, then it has no right to use as is calculated to lead, and does lead, other the name "United States Express Company" people to suppose that his business is the in the transaction of its business within the business of another person.” In McLean v. state of Illinois; that it is an offense against Fleming, 96 U. S. 245, 24 L. Ed. 828, it is a certain section of the Criminal Code to as said: "Nor is it necessary, in order to give sume and use a corporate name, not being a right to an injunction, that a specific tradeincorporated; that such illegal use of the mark should be infringed, but it is sufficient name would prevent the company from that the court is satisfied that there was claiming protection in the use of the name, an intent on the part of the respondent to as a trade-name; that it has no right to use palm off his goods as the goods of the comthe name in the state if not incorporated; plainant.” The same doctrine is announced that the name “United States Express Com in the following cases, to wit: Lane v. pany" certainly imports a corporation.
Brothers, etc., 120 Ga. 355, 47 S. E. 951;
Aiello v. Montecalfo, 21 R. I. 496, 44 Atl. A. L. Flaningham, for relator. W. H.
931; Rudolph v. Southern Beneficial League, Stead, Atty. Gen., and J. R. Custer, for re
23 Abb. N. C. 199, 7 N. Y. Supp. 135. spondent.
In the case at bar the old United States
Express Company had had an established MAGRUDER, J. (after stating the facts). business in the United States, and in foreign By the demurrer to the answer the allega
countries, for more than 50 years, when the tions of fact in the answer are admitted to petitioners made application to the Secretary be true. Under these allegations, as set
of State to organize a corporation in Illinois forth in the statement preceding this opinion,
under the same name, to wit, the “United the company referred to in the answer as the States Express Company.” It appears from "old United States Express Company" would
the allegations in the answer that the incorhave the right and power to restrain by in poration of the new company under the junction the use of its name by petitioners
same name as the old company would be a herein, or by the new corporation, which fraud upon the old company, as being an atthey propose to form. In International Com.
tempt to take away from it a part of its Y. W. C. A. v. Y. W. C. A., 194 Ill. 194, 62
business, and to deceive the public into the N. E. 551, 56 L. R. A. 888, we held that, al belief that, when dealing with the new though generic terms or mere descriptive company, they were, as matter of fact, dealwords are the common property of the pub ing with the old company. Indeed, the anlic, and not ordinarily susceptible of appro swer specifically alleges that the action propriation by an individual, yet an injunction
posed to be taken by the commissioners may issue to restrain the use of such terms, would be a fraud upon the old company, or words, at the suit of one who has already and the demurrer to the answer admits this adopted them, where the evidence shows a allegation. It being true, then, that the old fraudulent design, and that the public will company would be entitled to file a bill in be misled. In cases referred to and quoted chancery to enjoin the new corporation, profrom in the Y. W. C. A. Case, supra, it was posed to be organized, from doing business held that, although certain plaintiffs had no | under the same name as the old company, exclusive right to the words “Conveyance the writ of mandamus will not issue to comCompany," or "London Conveyance Com- pel the Secretary of State to issue a certifipany," or any other words, they had a right | cate of organization to the new company. to call upon a court of chancery to restrain The writ of mandamus will not be issued, the defendant from fraudulently using pre- if its issuance would fail to accomplish a cisely the same words and devices which good purpose or to have a beneficial effect. “The writ is not granted as a matter of ab. , existence to the sovereign power of the state, solute rigat, and where it can be seen that and a joint-stock company, which, being esit cannot accomplish any good purpose, or | sentially a partnership, is brought into being that it will fail to have a beneficial effect, it by the contract of its members inter sese." will be denied." Cristman v. Peck, 90 Ill. Counsel refer to cases in other states and in 150; Feople v. Lieb, 85 Ill. 484; Illinois the federal courts holding that joint-stock Watch Case Co. v. Pearson, 140 Ill. 423, 31 | companies possess many of the characteristics N. E. 400, 16 L. R. A. 429. It is difficult of corporations, but the definition which charto see how the issuance of the writ in this acterizes them as partnerships has been reccase could accomplish any good purpose or ognized as correct, if not actually adopted, have any beneficial effect, if the new corpo by the decisions of the Illinois courts. In ration proposed to be organized could be Robbins v. Butler, 24 Ill. 387, this court, enjoined from using the name of the old speaking through Mr. Justice Breese, said company and doing business under that | (page 426): "These stock companies are name.
nothing more than partnerships, and every It is contended, on the part of the petition. | member of the company is liable for the debts ers, that the old United States Express Com. of the concern, no matter what the private pany is a foreign corporation, organized under arrangements among themselves may be, if the laws of New York, and that, as such | they have not shifted their liability in the foreign corporation, it cannot be admitted very mode pointed out in the articles of asto do business in Illinois, except by comity sociation.” See, also, Pettis V. Atkins, 60. of the latter state. It is furthermore insisted III. 454; Hodgson v. Baldwin, 65 Ill. 532. In that the old United States Express Company Wadsworth v. Duncan, 164 Ill. 360, 45 N. E. cannot do business in this state, or maintain 132, this court, speaking through Mr. Justice any suit in the courts of this state, because Phillips, again said, indorsing the doctrine it has not obtained a license so to do business announced in Robbins v. Butler, supra, as in Illinois from the Secretary of State of follows: "The members of a joint-stock asIllinois. Many decisions are referred to by sociation are partners, and each member is counsel in support of this position. The argu | liable for the debts of the association, unless ment proceeds upon the supposition that the he has shifted his liability in the very mode old United States Express Company is a pointed out in the articles of association." foreign corporation. It does not appear, how-) In view of what has been said, it is ever, clearly upon this record that it is a not altogether certain that the old express. foreign corporation. The answer avers "that company, which is admitted here to be a there is now in existence a joint-stock com joint-stock company, is such a foreign corpopany called the United States Express Com ration as is required by our statute to file a pany, organized and doing business under the copy of its charter, or articles of incorpocommon law and statute law of the state ration, or certificate of incorporation, in the of New York.” The demurrer to the answer office of the Secetary of State. The statute admits this allegation to be true. For the imposing the requirement in question upon purposes of this case, therefore, the old a foreign corporation desiring to do business United States Express Company is to re in this state speaks of "every company ingarded as a joint-stock company, organized corporated for the purposes of gain under the and doing business under the common law, laws of any other state," etc., and, in the as well as the statute law of the state of subsequent part of the section, which uses New York. A joint-stock company is defined the words just quoted, the company so inin the text-books to be "an association of corporated is referred to as "such corpoindividuals for purposes of profit, possessing ration," and not as "such company," and it a common capital, which is divided into would seem to be the proper construction shares, of which each member possesses of the statute in question (4 Starr & C. Ann. one or more, and which are transferable by St. Supp. 1902, p. 310, par 53), that it rethe owner. These associations, formed for fers to regularly organized corporations rathbusiness purposes, were at common law, and er than to joint-stock companies. This is so as a general rule still are, considered merely because, as has already been stated, the coras partnerships, and their rights and liabili poration, technically so called, owes its exties are in the main governed by the same istence to the sovereign power of the state, rules and principles which regulate commer while the joint-stock company, being merely, cial partnerships.” 17 Am. & Eng. Ency. of a partnership, is brought into being by conLaw (2d Ed.) pp. 636, 637. While it is true tract of its members. The statutory requirethat many companies called joint-stock com ment embraces foreign corporations rather panies have many of the essential character than joint-stock companies, because the foristics of a corporation, yet there is a distinc mer owe their existence to the power of a tion between such companies and regularly foreign state; and statutes in relation to reorganized corporations so called. In 17 Am. quirements imposed upon foreign corporations & Eng. Ency. of Law (2d Ed.) p. 638, it is concern the creatures of the foreign states, said: “In respect to their formation there and not the creatures which are brought into Is a broad distinction between a corporation, being by the mere contract of parties. In technically so called, which always owes its the case at bar the provisions of the instru-
ment, or articles of organization, under whicb , be said that the old company here under conthe old United States Express Company acts sideration was in any way advertising itself and does business, are not anywhere set fortb as a corporation for the purpose of obtaining in the present record. We are unable to say a fictitious credit. Before the criminal statwhat the terms of its articles of association ute was passed it already had a credit which are, as they are not set forth in the pleadings. was not fictitious, so far as the present record But, whether the view, thus taken of the shows. The fraud, wbich the criminal statcharacter of the old United States Express ute in question seeks to punish or to prevent, Company, is correct or not, it is certainly a is the use of a name in such a way as to dematter of doubt whether it is a corporation, ceive the public, and it is the deception or or a mere partnership. Under these circum improper use of the name, and not the name stances the writ of mandamus will not be itself, which constitutes such fraud. “It is issued. "The writ is never granted in doubt not, therefore, enough to show the mere use ful cases, nor unless the party asking it has of the name to make out a violation of the a clear right.” High on Ex. Legal Rem. $ 9; statute. There must be some evidence at Illinois Watch Case Co. v. Pearson, supra. least tending to show such use as the statute
It is furthermore contended by the petition. forbids." Imperial Manf. Co. v. Schwartz, ers herein that, if the old United States Ex 105 Ill. App. 525. It is furthermore to be obpress Company is not a corporation, then it served that this criminal statute does not had no right to use the name “United States make contracts made by persons guilty of the Express Company" in the transaction of busi offense prohibited invalid, but merely proness in the state of Illinois. This contention vides that such persons shall be liable to pay is based upon the alleged ground that the a certain fine. It would appear, therefore, Criminal Code of this state makes it an of that a violation of the statute can be attendfense to assume and use a corporate name in ed with no other consequences than merely transacting business, not being incorporated. the infliction of the penalty therein prescribThe provision of the Criminal Code thus re
ed Edgerton v. Preston, supra. ferred to reads, in part, as follows: "If any For the reasons above stated, we are of the company, association or person puts forth any opinion that the Secretary of State properly sign or advertisement, and therein assumes,
refused to issue a certificate of complete orfor the purpose of soliciting business, a cor- / ganization of the new corporation proposed porate name, not being incorporated, • * . to be organized by the petitioners, and that such company, association or person shall be the prayer of the petition herein for a mandafined not less than $10.00, nor more than mus must be and is denied. $200.00, and a like sum for each day he or Writ denied. it shall continue to offend, after having been once fined." 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 1332, par. 368. The section of the
(219 Ill. 159) Criminal Code above quoted was passed in
PURINGTON et al. V. HINCHLIFF. March, 1869, either in the above or a more (Supreme Court of Illinois. Dec. 20, 1905.) stringent form. The answer shows that the
1. ToRTS – INTERFERENCE WITH BUSINESS — old United States Express Company was or
LIABILITY ganized in 1834, 15 years before this statute No person or combination of persons can was passed, and had been doing business legally, by direct or indirect means, obstruct or
interfere with another in the conduct of his lawthroughout the country for many years be
ful business, and any loss willfully caused by fore its passage. During the years prior to such interference will give the party injured a its passage, when it was thus transacting right of action for all damages sustained. business, it cannot be said that it was not | [Ed. Note.—For cases in point, see vol. 45, doing business in good faith, or that it was
Cent. Dig. Torts, g 10.) doing business with any intention of violat
2. CONSPIRACY-LIABILITY OF CONSPIRATORS,
All parties to a conspiracy to ruin the busiing the law in question, because the law in
ness of another because of his refusal to do some question was not then in existence. It is to act against his will or judgment are liable for be observed, however, that the statute does all overt acts illegally done pursuant to such not denounce the assuming of a corporate
conspiracy, and for the subsequent loss, whether
they were active participants in the conspiracy name, but the putting forth of a sign or ad
or not. vertisement, and thereby assuming a corpo [Ed. Note.—For cases in point, see vol. 10, rate name for the purpose of soliciting busi Cent. Dig. Conspiracy, g 14.] ness. It cannot be said here that the old 3. SAME-BOYCOTT-LEGALITY. company in question put forth its corporate An agreement not to use, purchase, or lay name for any such purpose. "What the Legis
brick made by any person who does not sub
scribe to the rules of a builders' association, lature bad in view in enacting this section of
made for the purpose of injuring the business the Criminal Code manifestly was to prevent of such person, is illegal, and the parties therepersons from obtaining a fictitious credit by to are liable for acts done in pursuance thereof
and to the damage of the injured person. advertising themselves as being a corporation
(Ed. Note.—For cases in point, see vol. 10, when they were not incorporated.” Edgerton
Cent. Dig. Conspiracy, $ 10.] v. Preston, 15 Ill. App. 23. Under the allegations of the answer herein, which are ad | Appeal from Appellate Court, First Dismitted to be true by the demurrer, it cannot trict.
Action by George Hinchliff against D. V. 1 prising 98 per cent of the competent brickPurington and others. From a judgment of | layers of said county : that, while the the Appellate Court, affirming a judgment for tiff was lawfully conducting his business as plaintiff, certain defendants appeal. Af a manufacturer of and dealer in brick, the firmed.
defendants, wrongfully and unlawfully conThis was an action on the case, commenced
spiring, etc., to injure the plaintiff in his in the circuit court of Cook county by George
business and to deprive him of the legitimate Hinchliff against D. V. Purington, William
profits thereof, wrongfully and corruptly conW. Weckler, Adam J. Weckler, Frederick
spired and agreed among themselves, and La Bahn, Louis Reimer, Charles Harmes,
caused to be agreed by said Masons' & BuildWiliam Schlake, P. J. Sexton, Edward T.
ers' Association and the members thereof, Harland, J. C. Thompson, and the Masons'
that such members should not purchase, nor & Builders' Association. The substantial al
be permitted to purchase, any brick to be legations of plaintiff's declaration, after vari
used by them, or any of them, from any perous amendments, are: “That for six years
son, firm, or corporation except such as had prior to the committing of the grievances
subscribed to the rules and regulations of complained of, plaintiff was a manufacturer
said Masons' & Builders' Association, to and dealer in bricks, and was the owner and
which said rules and regulations the plainpossessed of certain lands and buildings at
tiff was under no obligations to subscribe ; Hobart, Ind., which were in use by him as
that said Bricklayers' Union wrongfully and such manufacturer, and which had been ac
corruptly took action assuming to bind and quired and equipped for said business of
pledge its members not to handle or lay any manufacturing brick at an expenditure of
brick manufactured by any person who had $50,000; that during said period the plaintiff
not subscribed to the rules and regulations was engaged in the manufacture of brick and
of said Masons' & Builders' Association, selling the same almost exclusively in Cook
which said action or pledge was accepted county, Ill., and was in receipt of large
and acted upon by the members of said profits, and especially from having a market
union and defendants; that after the making for said brick in said Cook county ; that dur
of said agreements and pledges, and with the ing said time the Chicago Masons' & Builders'
unlawful purpose of injuring, etc., the plainAssociation was a corporation in said Cook tiff's business and of preventing and precounty, and had among its members about
cluding him from conducting his said busitwo-thirds of all persons and firms then en
ness in Cook county with profit, the defend. gaged in said county in the business of con
ants procured persons to go to customers of structing brick and mason work and in pur
plaintiff and to attend at the places where chasing and obtaining supplies of brick to brick of the plaintiff were bought to be used be used in said county; that the membership in constructing buildings in said county, and of said corporation comprised substantially
then and there wrongfully represented to the all the responsible and reliable persons or
said customers and said workmen employed firms engaged in the business aforesaid in to lay and work with brick of the plaintiff said Cook county ; that during said period that, if said customers should purchase or the members of said association constructed said workmen use brick manufactured by 95 per cent. of the brick and mason work in plaintiff, such customers and workmen would said county, and plaintiff made sales of sub be prevented from completing or proceeding stantially all of the brick of his manufac with any building or structure upon which it ture, and all that could be manufactured at was proposed to use the brick of plaintiff ; his said plant, to members of said association, that in furtherance of their unlawful confrom which he derived profits of $10,000 per spiracy in that behalf the defendants have, year ; that the defendant J. C. Thompson is by wrongful threats and the imposition of and was a member and president of said as fines upon persons dealing in or using the sociation; that during said period there was brick of plaintiff in said county, prevented in said county a voluntary organization of sundry customers of plaintiff from purchasindividuals known as the Brick Manufactur ing brick from plaintiff and from completing ers' Association of Chicago, comprising 95 contracts in which such brick would have per cent. of the manufacturers of brick in been used, and have prevented workmen from said county; that the members of said as laying or using plaintiff's brick, and have sociation were manufacturers of and dealers made wrongful and malicious threats, wherein and sellers of brick in said county ; that by customers of plaintiff have been deterred the defendants D. V. Purington, William H. from buying or using plaintiff's brick; that Weckler, Adam J. Weckler, Frederick W. by means of said several agreements and said La Bahn, Louis Reimer, P. J. Sexton, Ed. wrongful, unlawful, and malicious acts and ward T. Harland, Charles Harmes, and Wilc interference of the defendants and the aforeliam Schlake were during said period, and said unlawful conspiracy in that behalf, the still are, members of said association and plaintiff has been wholly deprived of the engaged in the business of manufacturing sales of brick in said county which he otherand selling brick; that during said period wise would have had, and has been and is there was in said county a voluntary associa unable to dispose of and sell his brick in tion known as the Bricklayers' Union, com- | said county, and has lost and been deprived of divers large gains and profits, etc., and by formulated the agreement. This seems to means of the premises the business of the have finally gone into effect prior to Octoplaintiff has been greatly damaged and ren- ber 1, 1898. The resolution of the Masons' dered less profitable and the value of his & Builders' Association adopted at the time lands and buildings greatly depreciated, to of the appointment of its committee of conthe damage of the plaintiff in the sum of | ference, provided, inter alia, that 'whereas, $100,000." Plaintiff also filed a specific bill the brick manufacturers now have an or. of particulars, in which he set forth various ganization which takes in all of the brick alleged acts of defendants in furtherance of manufacturers of Cook county and vicinity, the unlawful combination and conspiracy as and believing that it is established upon a above charged in the declaration. The de sound and practical basis, and believing the fendants filed their plea of not guilty, and system will control the price of brick in the upon a trial before the court and a jury a future,' and that an agreement would greatverdict was returned for $22,000. The suit ly benetit and advance the interests of the was subsequently dismissed as to William Chicago Masons' & Builders' Association and Schlake, and judgment rendered upon the will strengthen the Brick Manufacturers' verdict against the other defendants, all of Association as well,' therefore the commitwhom, except J. C. Thompson and the Ma- i tee be appointed, which was accordingly sons' & Builders' Association, perfected their done; that the substantial provisions of the appeal to the Appellate Court, where, after a | agreement thus made are, that the memremittitur of $7,000, the judgment was af bers of the Masons' & Builders' Association firmed as to all of the defendants except P. who sign the agreement agree to buy sewer, J. Sexton, who died pending the appeal. hollow, and common brick only from such From this judgment of affirmance a further members of the Brick Manufacturers' Asappeal has been prosecuted to this court. sociation as have signed the agreement and George W. Plummer and Wharton Plum
are in good standing in said association, mer, for appellants. Edwin F. Abbott, for
and the members of the Brick Manufacturappellee.
ers' Association who sign the agreement
agree to give to the members of the Masons' WILKIN, J. (after stating the facts). & Builders' Association signing the agreeMuch space has been taken up by the appel ment and in good standing a trade discount lants in their brief and argument in the dis- ! from the trade price of one dollar a thousand cussion of the question whether or not the brick. On all brick sold to purchasers outevidence shows that appellants were guilty side of the Masons' & Builders' Association of an unlawful conspiracy as charged in i the brick manufacturers agree to pay into the declaration, whether or not the plain their treasury one dollar a thousand, the tiff proved by the evidence that he was in fund thus created to be divided every six jured as a manufacturer and dealer in brick, months equally, one-half to their own memwhether or not the verdict is sustained by bers who have signed and are faithful memthe evidence, and many other questions i bers of the Masons' & Builders' Association. which are conclusively settled by the judg. There are provisions for enforcing the terms ment of the Appellate Court. As is well of the agreement by imposition of fines and understood, we have nothing to do with con- ! penalties, and it was to take effect on and troverted questions of fact; hence our in- after April 1, 1898, within the limits of Cook quiry is limited to but few of the points dis- county and north of the Joliet Branch of cussed by counsel for appellants.
the Michigan Central Railroad in Lake counAt the close of plaintiff's evidence, as ty, Ind. There is evidence tending to show well as at the close of all of the testimony that the plaintiff was the principal competioffered at the trial, the court was asked to tor in Cook county of the members of the instruct the jury to find for the defendants, Brick Manufacturers' Association; that his which instructions were refused, thus raising plant had a capacity of from 50,000 to 60,000 the question whether there is any evidence bricks a day, or about 15,000,000 bricks per in the record fairly tending to support the year; that it was well equipped with maallegations of the declaration, and whether chinery, and the clay was all right.' It or not the allegations of the declaration, un appears that plaintiff was at one time a der the facts, are sufficient to charge defend member of the Masons' & Builders' Associaants with an unlawful conspiracy to injure tion, and that he made efforts to secure adthe business of appellee. The Appellate mission to the Brick Manufacturers' AssociaCourt recited the following facts as appear- tion without success. These associations and ing from the evidence:
associates, the brick manufacturers, the ma“The negotiations between the Masons' sons and builders, and the Bricklayers' Un& Builders' Association which led to the ion, employed business agents and secret agreement complained of began in December, service men, whose business it was to see 1897, with the appointment of a committee that the rules formulated to make effective by the Brick Manufacturers' Association, the agreement between them were observed which obtained the appointment of a com- by their membership. There is evidence mittee of the Masons' & Builders' Associa tending to show that after the agreement tion, and the two committees in conference in question was in active force and opera