trade.mark, orcarihave a technicar trade-mark, in the name or, 'St. Louis.' It is sufficient that it was lawful for the complainant to use that name to designate its property; that, by doing so, it- has acqllir.ad a trade which is valuable to it; and that the defendant's acts are fraudulent, and create a dishonest competition, detrimental to the complainant." As to the right of a party to be protected by injunction against an unlawful competition in trade by means of a simulated label, see, also, Bro,vne, Trade.Marks, §§ 93, 95, 96, 538. '. The defendants have. no right to the use' (>f this label, as against the far as it represents them as being the sole agents for their fish; and it, is not only a fraud on the plaintiffs, but a gross imposition on the public, for them to do so. The injury.to the plaintiffs arising from the.conduct of the defendants in this respect is one that.cannot be compensated for in damages, for they cannot be computed,'alld therefore they' have no plain, adequate remedY!1-t law, and are en'titled to relief inequity by injunction. Let an injunction issue restraining the defendants from using the right-hand division ofthe label, or, so m.uch thereof as represehts the plaintiffs as being the agents forthe disposition of the fish contained in the can on which it may be placed. '
Co. v. ;McKEy.
January 6, lllllO.)
At Law. On demurrer to declaration. Sheldon. <to Sheldon, for plaintiff. Jarnea R. Doolittle, for defendant.. GRESHAM, J. The declaration avers that inNovember,1888, 1I. W. Wetherell, a mercbantof Chicago, was indebted to the plaintiff, for goods
sold and delivered, in th&$um of$6,870.63; that he was then .solvent,. aIld,coutinued to be.soLveut for more thllru five mouths thereafter; that he wa,s largely in excess of his debts, and. had no expectation of insolven,cy; that in order to obtain an extension of the time of payment of bis debt to the i plaintiff, and credit for. the further s}lm of $3,129.47, he executed and delivered to thepll!-intiff his judgment notes for $10,000, payal;lle one day after which notes, by agreement between the plaintiff and Wetherell, were deposited for the tpeplaintiff's benefit with E. B. Tolman, of Chicago; that the defendant, wh,o for sOIpe'time had been Wetherell's attorney, and was familiar with. his business and financial standing, was present as WethereU's counsel at the time the notes were executed, .and agreed, "in case £laid Wether.ell, SllOUld at any time thereafter become involyed in allY financial Or should endeavor to secure any other creditors,"tpat he would immediately notify Tolman, in order that he might at once cause judgment.to be entered on the notes; that on May 2, 1889, by the advice of the defendant, etherel1 executed a deed of assignment, he being th.en insol"ent, by which he conveyed to an assignee all of his property for the benefit of creditors, in accordance with the statute of Illinois governing 3£lsignments by insolvent debtors, under which assignment the plaintiff and other creditors have received not more than 25 per cent. of their dema,l,ld$ against Wetherell, and cannot receive more; .that, for more than 30 days prior to the assignment, the defendant well knew the financial difficulties in which Wetherel1 was involved, and yetfailed and refused to notify either the plailjltiff or Tolman of the same, and thereby prevented judgment from being entered in the plaintiff's favor upon the notes deposited with Tolman; and that, if the defendant had given prompt notice of Wetherell's condition, judgment would have been entered against him in time to secure a lien upon property amply sufficient to have paid the entire amount due the plaintiff. Judgment is demanded for $10,000. demurred to the declaration, and in support of the demurrer his counsel urged that the contract set out in the declaration provided for a secret. lien, of which the other creditors were ignorant, and that the defendant. was not bound to observe a contract which obliged him to do what was contrary to public policy, and in violation of the statute of Illinois governing voluntary assignments. The demurrer is based upon a misapprehension of the averments in the declaration. The common-law right of an embarrassed, or even an insolvent. debtor to prefer one or more creditors to the exclusion of all others still exists in Illinois, except as it is restricted by the statute which governs untary assignments. By that statute, assignments by insolvents of all their property are required to be for the equal benefit of all creditors. Preferences in such instruments are expressly prohibited. There is noth. ing in that or any other statute of the state which makes it illegal for a person involved in financial trouble to secure a creditor by a mortgage or other lien upon all, or only part, of bis property. Certainly it is not illegal in this state for a debtor possessed of property largely in excess of all his liabilities, with no expectation of insolvency, to execute and
deliver to one of his creditors, or to a third party for the creditor's 'benefit, a judgment note for the amount due, upon which judgment may be entered in case the debtor thereafter "becomes involved in any financial troubles, or endeavors to secure any other creditors." Inoider to obtain further extension upon his existing indebtedness, and additional credit, Wetherell executec} the ,notes, and he and the defendant entered into the agreement with the plaintiff. Wetherell was then solvent, and remained so for more than five months thereafter. The defendant then was, and for some time had been, Wetherell's counsel, and, as such, had become acquainted with his business affairs, and would, presumably, continue to be acquainted with them. It was not contemplated that Wetherell would become insolvent, and the defendant stood in such a relation to him that the latter would not probably become involved in any financial trouble without the defendant's knowledge, for whichrenson the plaintiff naturally accepted and .relied upon the defendant's agreement to inform Tolman, should anything thereafter occur which would make it Tolman's duty to the plaintiff to cause Judgment to be entered upon the notes. If, in pursuance of the agreement, judgment had been entered before Wetherell's insolvency, there could have been no doubt of its binding force. If judgment had been,entered after Wetherell became insolvent, and the plaintiff had demanded the entire assets in payment,a question might ha\'e arisen between the plaintiff and the other creditors. But we are not dealing with a controversy between the creditors of Wetherell. The defendant's agreement was part of the consideration for which the plain. tiff extended the time of payment, and granted additional credit to Wetherell; and, instead of keeping his agreement as the defendant should have done, he deliberately broke it, and now endeavors to escape liability on the gronnd that the arrangpment entered into at the time the notes were executed was contrary to law. Courts cannot be expected to regard with favor such defenses, especially when set up by members of the bar. H is not at fin probable that Wetherell became insolvent in a day, or that the defendant was kept ignorant of the embarrassments that preceded ultimate insolvency. .By failing to give timely notice to Tolman, the defendant violated his agreement, for which the plaintiff has a right of action. What will be the proper measure of damages need not now be considered. The demurtar iAoverruled.
MCVICKER V. AMERICAN OPERA CO., (NATIONAL OPERA.
(Ctrcuit Court, N. D. nZinois. December 15. 1889.)
CoRl'ORA.TJONS-INSOLVENCy-RIGHTS OF CREDITORS.
Where an insolvent corporation reorganizes under a new charter and a different. though tranaferred to the new corponat:ne, its property is still liable for its ration for a valuable consideratioD.
At Law. Candee « Rose, for plaintiff. Isham, Lincoln « Beale, for defendant.
GRESHAM, J .. On August 5, 1886, James H. McVicker commenced his action in aasumpsit against the American Opera Company for breach of its contract for the use of his theater. On September 8, 1886, at a meeting of the directors of the American Opera Company, the question of forming a National Opera Company was discussed, and the following preamble and resolutions were unanimously adopted:
"Whereas, for the purpose of promoting a higher musical education in the United States, it is desirable that the principal cities should co-operate upon a uniform and equitable plan for establishing a national opera, Resolved that a National Opera Company be formed, in which each city having a local American Opera Company shall be represented by directors in proportion to its capital, and have proportionate ownership and voice in its direction; Resolved that the present American Opera Company, Limited, will co-operate in .this movement by appropriate reorganization, transferring its property to the N ational Company; and· Resolved that a local com pany be formed for New York city on the same basis in the National Company as the local American Opel'a Companies in alrthe other cities."
In pursuance of these resolutions, th'e National Opera Company was under the laws of New Jersey, with a capital stock of $500,000, and a certificate of organization was filed in the office of the secretary of state on November 26, 1886. At a meeting of stockholders of the American Company on November 29, 1886, two contracts, which had been approved at a meeting of the directors on the 22d, were submitted. One of these contracts provided for a lease of the entire property of the Americltn Company to the National Company for one year for $25,000, and the other provided for the sale of the same property to the National Company, at any time within one year, for $375,000, namely, the $25,000 already referred to as rental, and $350,000, to be paid, either in cash, or the stock of the National Company at its par value. On the last-named day, namely, November 29th, at a meeting of the directors of the National Company t a resolution was adopted approving of the' proposed agreements, and authorizing and directing the executive committee to pay the $25,000 under the lease, and take possessi0Il. of the;pro'perty. . The lease was accordingly executed by the offi. lReponoo bY Loliis J3Oisot,Jr., of the Chicago bar. .