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C. Platt, etc., v. Oscar St. Clair et al., above described, in which an injunction was issued against the defendants therein on July 21, 1883; that it is only upon the ground that the United States Express Company, organized under the laws of New York, was a corporation, that the court could acquire jurisdiction in the above case, and, if it be held to be a corporation, the allegations in the bill are not sufficient to give the court jurisdiction, which it did not have; that the statute of our state which requires foreign corporations to obtain a license from the Secretary of State in order to do business in this state was enacted more than 10 years after the decision in the cases referred to; that, if it be a corporation, the United States Express Company of New York has no right to do business in this state, as it is not licensed to do so. Second. If said express company is not incorporated, then it has no right to use the name "United States Express Company" in the transaction of its business within the state of Illinois; that it is an offense against a certain section of the Criminal Code to assume and use a corporate name, not being incorporated; that such illegal use of the name would prevent the company from claiming protection in the use of the name, as a trade-name; that it has no right to use the name in the state if not incorporated; that the name "United States Express Company" certainly imports a corporation.

A. L. Flaningham, for relator. W. H. Stead, Atty. Gen., and J. R. Custer, for respondent.

MAGRUDER, J. (after stating the facts). By the demurrer to the answer the allegations of fact in the answer are admitted to be true. Under these allegations, as set forth in the statement preceding this opinion, the company referred to in the answer as the "old United States Express Company" would have the right and power to restrain by injunction the use of its name by petitioners herein, or by the new corporation, which they propose to form. In International Com. Y. W. C. A. v. Y. W. C. A., 194 Ill. 194, 62 N. E. 551, 56 L. R. A. 888, we held that, although generic terms or mere descriptive words are the common property of the public, and not ordinarily susceptible of appropriation by an individual, yet an injunction may issue to restrain the use of such terms, or words, at the suit of one who has already adopted them, where the evidence shows a fraudulent design, and that the public will be misled. In cases referred to and quoted from in the Y. W. C. A. Case, supra, it was held that, although certain plaintiffs had no exclusive right to the words "Conveyance Company," or "London Conveyance Company," or any other words, they had a right to call upon a court of chancery to restrain the defendant from fraudulently using precisely the same words and devices which

they had taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their business by attracting custom on false representation that carriages, really belonging to the defendant, belonged and were under the management of the plaintiff. It was there held that, although there was no property in the words "The Guinea Coal Company," yet it was a fraud on a person who had an established trade and carried it on under a given name that some other person should assume the same name with a slight alteration, as "The Pall Mall Guinea Coal Company," in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name; in other words, "that it is a fraud on the part of a defendant to set up business under such a designation as is calculated to lead, and does lead, other people to suppose that his business is the business of another person." In McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828, it is said: "Nor is it necessary, in order to give a right to an injunction, that a specific trademark should be infringed, but it is sufficient that the court is satisfied that there was an intent on the part of the respondent to palm off his goods as the goods of the complainant." The same doctrine is announced in the following cases, to wit: Lane v. Brothers, etc., 120 Ga. 355, 47 S. E. 951; Aiello v. Montecalfo, 21 R. I. 496, 44 Atl. 931; Rudolph v. Southern Beneficial League, 23 Abb. N. C. 199, 7 N. Y. Supp. 135.

In the case at bar the old United States Express Company had had an established business in the United States, and in foreign countries, for more than 50 years, when the petitioners made application to the Secretary of State to organize a corporation in Illinois under the same name, to wit, the "United States Express Company." It appears from the allegations in the answer that the incorporation of the new company under the same name as the old company would be a fraud upon the old company, as being an attempt to take away from it a part of its business, and to deceive the public into the belief that, when dealing with the new company, they were, as matter of fact, dealing with the old company. Indeed, the answer specifically alleges that the action proposed to be taken by the commissioners would be a fraud upon the old company, and the demurrer to the answer admits this allegation. It being true, then, that the old company would be entitled to file a bill in chancery to enjoin the new corporation, proposed to be organized, from doing business under the same name as the old company, the writ of mandamus will not issue to compel the Secretary of State to issue a certificate of organization to the new company. The writ of mandamus will not be issued, if its issuance would fail to accomplish a good purpose or to have a beneficial effect.

"The writ is not granted as a matter of absolute right, and where it can be seen that it cannot accomplish any good purpose, or that it will fail to have a beneficial effect, it will be denied." Cristman v. Peck, 90 Ill. 150; Feople v. Lieb, 85 Ill. 484; Illinois Watch Case Co. v. Pearson, 140 Ill. 423, 31 N. E. 400, 16 L. R. A. 429. It is difficult to see how the issuance of the writ in this case could accomplish any good purpose or have any beneficial effect, if the new corporation proposed to be organized could be enjoined from using the name of the old company and doing business under that

name.

It is contended, on the part of the petitioners, that the old United States Express Company is a foreign corporation, organized under the laws of New York, and that, as such foreign corporation, it cannot be admitted to do business in Illinois, except by comity of the latter state. It is furthermore insisted that the old United States Express Company cannot do business in this state, or maintain any suit in the courts of this state, because it has not obtained a license so to do business in Illinois from the Secretary of State of Illinois. Many decisions are referred to by counsel in support of this position. The argument proceeds upon the supposition that the old United States Express Company is a foreign corporation. It does not appear, however, clearly upon this record that it is a foreign corporation. The answer avers "that there is now in existence a joint-stock company called the United States Express Company, organized and doing business under the common law and statute law of the state of New York." The demurrer to the answer admits this allegation to be true. For the purposes of this case, therefore, the old United States Express Company is to regarded as a joint-stock company, organized and doing business under the common law, as well as the statute law of the state of New York. A joint-stock company is defined in the text-books to be "an association of individuals for purposes of profit, possessing a common capital, which is divided into shares, of which each member possesses one or more, and which are transferable by the owner. These associations, formed for business purposes, were at common law, and as a general rule still are, considered merely as partnerships, and their rights and liabilities are in the main governed by the same rules and principles which regulate commercial partnerships." 17 Am. & Eng. Ency. of Law (2d Ed.) pp. 636, 637. While it is true that many companies called joint-stock companies have many of the essential characteristics of a corporation, yet there is a distinction between such companies and regularly organized corporations so called. In 17 Am. & Eng. Ency. of Law (2d Ed.) p. 638, it is said: "In respect to their formation there is a broad distinction between a corporation, technically so called, which always owes its

existence to the sovereign power of the state, and a joint-stock company, which, being essentially a partnership, is brought into being by the contract of its members inter sese." Counsel refer to cases in other states and in the federal courts holding that joint-stock companies possess many of the characteristics of corporations, but the definition which characterizes them as partnerships has been recognized as correct, if not actually adopted, by the decisions of the Illinois courts. In Robbins v. Butler, 24 Ill. 387, this court, speaking through Mr. Justice Breese, said (page 426): "These stock companies are nothing more than partnerships, and every member of the company is liable for the debts of the concern, no matter what the private arrangements among themselves may be, if they have not shifted their liability in the very mode pointed out in the articles of association." See, also, Pettis v. Atkins, 60Ill. 454; Hodgson v. Baldwin, 65 Ill. 532. In Wadsworth v. Duncan, 164 Ill. 360, 45 N. E. 132, this court, speaking through Mr. Justice Phillips, again said, indorsing the doctrine announced in Robbins v. Butler, supra, as follows: "The members of a joint-stock association are partners, and each member is liable for the debts of the association, unless he has shifted his liability in the very mode pointed out in the articles of association."

In view of what has been said, it is not altogether certain that the old expresscompany, which is admitted here to be a joint-stock company, is such a foreign corporation as is required by our statute to file a copy of its charter, or articles of incorporation, or certificate of incorporation, in the office of the Secetary of State. The statute imposing the requirement in question upon a foreign corporation desiring to do business in this state speaks of "every company incorporated for the purposes of gain under the laws of any other state," etc., and, in the subsequent part of the section, which uses the words just quoted, the company so incorporated is referred to as "such corporation," and not as "such company," and it would seem to be the proper construction of the statute in question (4 Starr & C. Ann. St. Supp. 1902, p. 310, par 53), that it refers to regularly organized corporations rather than to joint-stock companies. This is so because, as has already been stated, the corporation, technically so called, owes its existence to the sovereign power of the state, while the joint-stock company, being merely a partnership, is brought into being by contract of its members. The statutory requirement embraces foreign corporations rather than joint-stock companies, because the former owe their existence to the power of a foreign state; and statutes in relation to requirements imposed upon foreign corporations concern the creatures of the foreign states, and not the creatures which are brought into being by the mere contract of parties. In the case at bar the provisions of the instru-

ment, or articles of organization, under which the old United States Express Company acts and does business, are not anywhere set forth in the present record. We are unable to say what the terms of its articles of association are, as they are not set forth in the pleadings. But, whether the view, thus taken of the character of the old United States Express Company, is correct or not, it is certainly a matter of doubt whether it is a corporation, or a mere partnership. Under these circumstances the writ of mandamus will not be issued. "The writ is never granted in doubtful cases, nor unless the party asking it has a clear right." High on Ex. Legal Rem. § 9; Illinois Watch Case Co. v. Pearson, supra.

It is furthermore contended by the petitioners herein that, if the old United States Express Company is not a corporation, then it had no right to use the name "United States Express Company" in the transaction of business in the state of Illinois. This contention is based upon the alleged ground that the Criminal Code of this state makes it an offense to assume and use a corporate name in transacting business, not being incorporated. The provision of the Criminal Code thus referred to reads, in part, as follows: "If any company, association or person puts forth any sign or advertisement, and therein assumes, for the purpose of soliciting business, a corporate name, not being incorporated,

such company, association or person shall be
fined not less than $10.00, nor more than
$200.00, and a like sum for each day he or
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
Criminal Code above quoted was passed in
March, 1869, either in the above or a more
stringent form. The answer shows that the
old United States Express Company was or-
ganized in 1854, 15 years before this statute
was passed, and had been doing business
throughout the country for many years be-
fore its passage. During the years prior to
its passage, when it was thus transacting
business, it cannot be said that it was not
doing business in good faith, or that it was
doing business with any intention of violat-
ing the law in question, because the law in
question was not then in existence. It is to
be observed, however, that the statute does
not denounce the assuming of a corporate
name, but the putting forth of a sign or ad-
vertisement, and thereby assuming a corpo-
rate name for the purpose of soliciting busi-
ness. It cannot be said here that the old
company in question put forth its corporate
name for any such purpose. "What the Legis-
lature had in view in enacting this section of
the Criminal Code manifestly was to prevent
persons from obtaining a fictitious credit by
advertising themselves as being a corporation
when they were not incorporated." Edgerton
v. Preston, 15 Ill. App. 23. Under the allega-
tions of the answer herein, which are ad-
mitted to be true by the demurrer, it cannot

be said that the old company here under con-
sideration was in any way advertising itself
as a corporation for the purpose of obtaining
a fictitious credit. Before the criminal stat-
ute was passed it already had a credit which
was not fictitious, so far as the present record
shows. The fraud, which the criminal stat-
ute in question seeks to punish or to prevent,
is the use of a name in such a way as to de-
ceive the public, and it is the deception or
improper use of the name, and not the name
itself, which constitutes such fraud. "It is
not, therefore, enough to show the mere use
of the name to make out a violation of the
statute. There must be some evidence at
least tending to show such use as the statute
forbids." Imperial Manf. Co. v. Schwartz,
105 Ill. App. 525. It is furthermore to be ob-
served that this criminal statute does not
make contracts made by persons guilty of the
offense prohibited invalid, but merely pro-
vides that such persons shall be liable to pay
a certain fine. It would appear, therefore,
that a violation of the statute can be attend-
ed with no other consequences than merely
the infliction of the penalty therein prescrib-
ed. Edgerton v. Preston, supra.

For the reasons above stated, we are of the
opinion that the Secretary of State properly
refused to issue a certificate of complete or-
ganization of the new corporation proposed
to be organized by the petitioners, and that
the prayer of the petition herein for a manda-
mus must be and is denied.
Writ denied.

(219 Ill. 159)

PURINGTON et al. v. HINCHLIFF. (Supreme Court of Illinois. Dec. 20, 1905.) 1. TORTS - INTERFERENCE WITH BUSINESS LIABILITY.

No person or combination of persons can legally, by direct or indirect means, obstruct or interfere with another in the conduct of his lawful business, and any loss willfully caused by such interference will give the party injured a right of action for all damages sustained.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Torts, § 10.]

2. CONSPIRACY-LIABILITY OF CONSPIRATORS, All parties to a conspiracy to ruin the business of another because of his refusal to do some act against his will or judgment are liable for all overt acts illegally done pursuant to such conspiracy, and for the subsequent loss, whether they were active participants in the conspiracy or not.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Conspiracy, § 14.]

3. SAME-BOYCOTT-LEGALITY.

An agreement not to use, purchase, or lay brick made by any person who does not subscribe to the rules of a builders' association, made for the purpose of injuring the business of such person, is illegal, and the parties thereto are liable for acts done in pursuance thereof and to the damage of the injured person.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Conspiracy, § 10.]

Appeal from Appellate Court, First District.

Action by George Hinchliff against D. V. Purington and others. From a judgment of the Appellate Court, affirming a judgment for plaintiff, certain defendants appeal. Affirmed.

This was an action on the case, commenced in the circuit court of Cook county by George Hinchliff against D. V. Purington, William W. Weckler, Adam J. Weckler, Frederick La Bahn, Louis Reimer, Charles Harmes, Wiliam Schlake, P. J. Sexton, Edward T. Harland, J. C. Thompson, and the Masons' & Builders' Association. The substantial allegations of plaintiff's declaration, after various amendments, are: "That for six years prior to the committing of the grievances complained of, plaintiff was a manufacturer and dealer in bricks, and was the owner and possessed of certain lands and buildings at Hobart, Ind., which were in use by him as such manufacturer, and which had been acquired and equipped for said business of manufacturing brick at an expenditure of $50,000; that during said period the plaintiff was engaged in the manufacture of brick and selling the same almost exclusively in Cook county, Ill., and was in receipt of large profits, and especially from having a market for said brick in said Cook county; that during said time the Chicago Masons' & Builders' Association was a corporation in said Cook county, and had among its members about two-thirds of all persons and firms then engaged in said county in the business of constructing brick and mason work and in purchasing and obtaining supplies of brick to be used in said county; that the membership of said corporation comprised substantially all the responsible and reliable persons or firms engaged in the business aforesaid in said Cook county; that during said period the members of said association constructed 95 per cent. of the brick and mason work in said county, and plaintiff made sales of substantially all of the brick of his manufacture, and all that could be manufactured at his said plant, to members of said association, from which he derived profits of $10,000 per year; that the defendant J. C. Thompson is and was a member and president of said association; that during said period there was in said county a voluntary organization of individuals known as the Brick Manufacturers' Association of Chicago, comprising 95 per cent. of the manufacturers of brick in said county; that the members of said association were manufacturers of and dealers in and sellers of brick in said county; that the defendants D. V. Purington, William H. Weckler, Adam J. Weckler, Frederick W. La Bahn, Louis Reimer, P. J. Sexton, Edward T. Harland, Charles Harmes, and William Schlake were during said period, and still are, members of said association and engaged in the business of manufacturing and selling brick; that during said period there was in said county a voluntary association known as the Bricklayers' Union, com

prising 98 per cent. of the competent bricklayers of said county; that, while the plaintiff was lawfully conducting his business as a manufacturer of and dealer in brick, the defendants, wrongfully and unlawfully conspiring, etc., to injure the plaintiff in his business and to deprive him of the legitimate profits thereof, wrongfully and corruptly conspired and agreed among themselves, and caused to be agreed by said Masons' & Builders' Association and the members thereof, that such members should not purchase, nor be permitted to purchase, any brick to be used by them, or any of them, from any person, firm, or corporation except such as had subscribed to the rules and regulations of said Masons' & Builders' Association, to which said rules and regulations the plaintiff was under no obligations to subscribe; that said Bricklayers' Union wrongfully and corruptly took action assuming to bind and pledge its members not to handle or lay any brick manufactured by any person who had not subscribed to the rules and regulations of said Masons' & Builders' Association, which said action or pledge was accepted and acted upon by the members of said union and defendants; that after the making of said agreements and pledges, and with the unlawful purpose of injuring, etc., the plaintiff's business and of preventing and precluding him from conducting his said business in Cook county with profit, the defendants procured persons to go to customers of plaintiff and to attend at the places where brick of the plaintiff were bought to be used in constructing buildings in said county, and then and there wrongfully represented to the said customers and said workmen employed to lay and work with brick of the plaintiff that, if said customers should purchase or said workmen use brick manufactured by plaintiff, such customers and workmen would be prevented from completing or proceeding with any building or structure upon which it was proposed to use the brick of plaintiff; that in furtherance of their unlawful conspiracy in that behalf the defendants have, by wrongful threats and the imposition of fines upon persons dealing in or using the brick of plaintiff in said county, prevented sundry customers of plaintiff from purchasing brick from plaintiff and from completing contracts in which such brick would have been used, and have prevented workmen from laying or using plaintiff's brick, and have made wrongful and malicious threats, whereby customers of plaintiff have been deterred from buying or using plaintiff's brick; that by means of said several agreements and said wrongful, unlawful, and malicious acts and interference of the defendants and the aforesaid unlawful conspiracy in that behalf, the plaintiff has been wholly deprived of the sales of brick in said county which he otherwise would have had, and has been and is unable to dispose of and sell his brick in said county, and has lost and been deprived

of divers large gains and profits, etc., and by means of the premises the business of the plaintiff has been greatly damaged and rendered less profitable and the value of his lands and buildings greatly depreciated, to the damage of the plaintiff in the sum of $100,000." Plaintiff also filed a specific bill of particulars, in which he set forth various alleged acts of defendants in furtherance of the unlawful combination and conspiracy as above charged in the declaration. The defendants filed their plea of not guilty, and upon a trial before the court and a jury a verdict was returned for $22,000. The suit was subsequently dismissed as to William Schlake, and judgment rendered upon the verdict against the other defendants, all of whom, except J. C. Thompson and the Masons' & Builders' Association, perfected their appeal to the Appellate Court, where, after a remittitur of $7,000, the judgment was affirmed as to all of the defendants except P. J. Sexton, who died pending the appeal. From this judgment of affirmance a further appeal has been prosecuted to this court. George W. Plummer and Wharton Plummer, for appellants. Edwin F. Abbott, for appellee.

WILKIN, J. (after stating the facts). Much space has been taken up by the appellants in their brief and argument in the discussion of the question whether or not the evidence shows that appellants were guilty of an unlawful conspiracy as charged in the declaration, whether or not the plaintiff proved by the evidence that he was injured as a manufacturer and dealer in brick, whether or not the verdict is sustained by the evidence, and many other questions which are conclusively settled by the judgment of the Appellate Court. As is well understood, we have nothing to do with controverted questions of fact; hence our inquiry is limited to but few of the points discussed by counsel for appellants.

At the close of plaintiff's evidence, as well as at the close of all of the testimony offered at the trial, the court was asked to instruct the jury to find for the defendants, which instructions were refused, thus raising the question whether there is any evidence in the record fairly tending to support the allegations of the declaration, and whether or not the allegations of the declaration, under the facts, are sufficient to charge defendants with an unlawful conspiracy to injure the business of appellee. The Appellate Court recited the following facts as appearing from the evidence:

"The negotiations between the Masons' & Builders' Association which led to the agreement complained of began in December, 1897, with the appointment of a committee by the Brick Manufacturers' Association, which obtained the appointment of a committee of the Masons' & Builders' Association, and the two committees in conference 76 N.E.-4

formulated the agreement. This seems to have finally gone into effect prior to October 1, 1898. The resolution of the Masons' & Builders' Association adopted at the time of the appointment of its committee of conference, provided, inter alia, that 'whereas, the brick manufacturers now have an or ganization which takes in all of the brick manufacturers of Cook county and vicinity, and believing that it is established upon a sound and practical basis, and believing the system will control the price of brick in the future,' and that an agreement would greatly benefit and advance the interests of the Chicago Masons' & Builders' Association and will strengthen the Brick Manufacturers' Association as well,' therefore the committee be appointed, which was accordingly done; that the substantial provisions of the agreement thus made are, that the members of the Masons' & Builders' Association who sign the agreement agree to buy sewer, hollow, and common brick only from such members of the Brick Manufacturers' Association as have signed the agreement and are in good standing in said association, and the members of the Brick Manufacturers' Association who sign the agreement agree to give to the members of the Masons' & Builders' Association signing the agreement and in good standing a trade discount from the trade price of one dollar a thousand brick. On all brick sold to purchasers outside of the Masons' & Builders' Association the brick manufacturers agree to pay into their treasury one dollar a thousand, the fund thus created to be divided every six months equally, one-half to their own members who have signed and are faithful members of the Masons' & Builders' Association. There are provisions for enforcing the terms of the agreement by imposition of fines and penalties, and it was to take effect on and after April 1, 1898, within the limits of Cook county and north of the Joliet Branch of the Michigan Central Railroad in Lake county, Ind. There is evidence tending to show that the plaintiff was the principal competitor in Cook county of the members of the Brick Manufacturers' Association; that his plant had a capacity of from 50,000 to 60,000 bricks a day, or about 15,000,000 bricks per year; that it was well equipped with machinery, and 'the clay was all right.' It appears that plaintiff was at one time a member of the Masons' & Builders' Association, and that he made efforts to secure admission to the Brick Manufacturers' Association without success. These associations and associates, the brick manufacturers, the masons and builders, and the Bricklayers' Union, employed business agents and secret service men, whose business it was to see that the rules formulated to make effective the agreement between them were observed by their membership. There is evidence tending to show that after the agreement in question was in active force and opera

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