Austin v. Yott

171 Ill. App. 327, 1912 Ill. App. LEXIS 645

• Court: Appellate Court of Illinois
• Decided: June 4, 1912
• Docket: Gen. No. 17,004
• Status: Published

Opinion

Mr. Justice F. A. Smith

delivered the opinion of the court.

We have carefully reviewed the evidence contained in the record, and we are of the opinion from the evidence that the findings of the decree entered in the case are sustained by the evidence. In our opinion the business conducted by the appellant here was a purely commercial business to which good will had attached by means of the advertising conducted by the business. The evidence shows that the business was conducted by the assistance of clerks, and was reduced to a system by which the clerks themselves were able to put up and fill the orders of the various customers when received, and such orders were filled as in an ordinary commercial business, and that the packages in which the remedies were put up were of a uniform size and shape and were labeled in such manner that they could be selected by the clerks of the business, and that the names of Prof. Austin and Prof. J. H. Austin in connection with the business became and were mere trade names when used in connection with the preparations sold, and it was a mail order business of a purely commercial and non-professional character.

The evidence shows that in the conduct of that business the complainant John H. Austin became indebted to S. T. A. Loftis in the sum of $3,000 for advertising ordered by said Austin to advertise the said business, and the preparations sold, and that that debt was, among others, scheduled by Austin in his proceedings in bankruptcy; and that after the 8th of February, 1909, when Austin was adjudged a bankrupt, Joseph E. Winterbotham became the trustee in bankruptcy, and under the direction of the court continued the business of the bankrupt until it was sold out as alleged in the answer to the bill, under the direction of the District Court of the United States to E. E. Berlet, the sale including all the right, title and interest of the trustee as such in the business of said Austin as conducted by him in the MeVicker’s Theatre building, Chicago, Dlinois, at and previous to his adjudication in bankruptcy; and all right, title and interest of the trustee as such in the good will of the business, and all rights and property which the trustee had pertaining to the business; and that the trustee made conveyance to Berlet of all the assets so sold and Berlet conveyed the property to Yott one of the defendants in the cause; and that the right, title and interest to the assets which they received from Berlet were and are the property of Loftis, and by means of the conveyance Loftis acquired all the property rights in the good will of the business conducted by Austin, as applied to the preparations manufactured and sold by him at Chicago, Illinois.

In our opinion the defendants had a right to incorporate the business so obtained by them, under the name “Prof. J. H. Austin Company,” and that they were acting within their legal rights in creating a corporation under that name for the purpose of conducting the business which they had acquired.

In our opinion, the decree of the court dissolving the preliminary injunction and dismissing the complainant’s bill of complaint was properly entered. The decree is therefore affirmed.

Affirmed.