Thompson v. Marks

186 Ill. App. 92, 1914 Ill. App. LEXIS 817

• Court: Appellate Court of Illinois
• Decided: April 23, 1914
• Docket: Gen. No. 19,107
• Status: Published

Opinion

Mr. Justice Gridley

delivered the opinion of the court.

In the year 1891 the General Assembly of this State passed an act entitled “An Act to protect associations, unions of workingmen and persons in their labels, trade-marks and forms of advertising. ’ ’ That act was amended in some particulars in 1895,. and as amended was in force in the year 1900. Sections 1 and 2 of said act as amended (J. & A. ¶¶ 11391, 11392) are in part as follows:

“1. Whenever any person or any association or union of workingmen has heretofore adopted or used, or shall hereafter adopt or use any label, trade-mark, * * * or form of advertisement for the purpose of designating, making known or distinguishing any goods, * * * or other product of labor as having been made, manufactured, * * * or put on sale by such person or association or union of workingmen, or by a member or members of such association or union, it shall be unlawful to counterfeit or imitate such label, trade-mark, * * * or form of advertisement, or to use, sell, offer for sale, or in any way utter or circulate any counterfeit or imitation of any such labels, trade-mark, * * * or form of advertisement.

2. Whoever counterfeits or imitates any such label, trade-mark, * * * or form of advertisement, or sells, offers for sale or in any way utters or circulates any counterfeit or imitation of any such label, trademark, * * * or form of advertisement, or knowingly uses any such counterfeit or imitation, or knowingly sells or disposes of * * * any goods * * * or other product of labor to which any such counterfeit or imitation is attached or affixed, * * * shall be punished by a fine of not less than one hundred (100) dollars, nor more than two hundred (200) dollars, or by imprisonment for not less than three (3) months nor more than one (1) year, or by both such fine and imprisonment.”

It appears from the testimony offered by the plaintiff (presented by agreement in the form of written offers as above mentioned in the foregoing statement) that prior to the year 1900 the “Journeymen Tailors’ Union of America,” a voluntary unincorporated association of thousands of experienced workmen in the United States and Canada, employed in making to order clothing for men, had adopted and registered a trade-mark or label, since which adoption and registration the members of the Union sewed said label into clothing made by members, and in said year said label became generally known and had a reputation in Illinois and elsewhere as evidencing dependable and sanitary clothing; that said Union permitted, by contract, the use of said label by certain manufacturers of clothing, but that the firm of H. M. Marks & Co., manufacturers of clothing in Chicago and of which firm the defendant, Simon L. Marks, was a member, did not in said year have such a contract with said Union and was not entitled to use said label, and did not then or at any other time employ members of said Union; that plaintiff was in the retail clothing business at Quincy, Illinois, and in said year one Eberhardt ordered a coat from plaintiff to be made to measure, demanding that the same should be made by some member of said Union and that to such coat the label of said Union should be attached; that prior to this time the defendant had represented to plaintiff that he conducted a union shop, employed members of said Union and was authorized to use and did use said label furnished him by said Union; that plaintiff ordered said coat from the defendant informing the latter of the said demands by said Eberhardt and that shortly thereafter defendant delivered said coat to plaintiff, said coat bearing what purported to be the genuine label of said Union; that plaintiff sold said coat with said label attached to said Eberhardt, believing that said label was a genuine label, and said Eberhardt accepted said coat from plaintiff, paying the latter a price for the same in excess of the amount paid by plaintiff to defendant therefor; that shortly thereafter certain members of said Union, at Quincy, Illinois, pronounced said label a counterfeit, and said label was in fact not a genuine label of said Union, but was a counterfeit thereof; that at this time the city of Quincy had a population of about 36,000, and in said city there were then about forty local unions of various international trades unions, affiliated with the American Federation of Labor, with a membership of over 2,000 members; that information regarding the use or misuse or counterfeiting of union labels was conveyed to the members of the various unions and their friends and families; that said city was then known as a strong union town and a major portion of the skilled workmen in said city were members of the various trades unions of their respective trades; that plaintiff then had a large number of customers among said skilled workmen; that shortly after the delivery of said coat by plaintiff to said Eberhardt and the discovery that said label on said coat was a counterfeit, plaintiff was indicted by the grand jury of Adams county, Illinois, being the same county in which said city of Quincy is located, said indictment being founded upon section 2 of the statute above referred to; that plaintiff was taken into custody by the sheriff, employed counsel, and that in the following year a nolle pros, was entered by the State’s Attorney of said county; that beginning with the time of the delivery of said coat and the discovery that said label was a counterfeit, the business of plaintiff began to fall off, and large numbers of customers that had theretofore traded with plaintiff ceased to do so, by reason of the use of said counterfeit label so furnished by defendant to plaintiff, and plaintiff’s business gradually decreased until it ceased to be profitable, and plaintiff was compelled to and did close out his business and was unable to pay his creditors in full; that plaintiff sought employment but was unable to make a living for himself and family; that shortly thereafter his health began to fail and for five years he was in ill health; and that during said time he came to Chicago and consulted various physicians, submitted to a surgical operation for stomach disorder, was treated for nervous prostration, and was finally restored to health.

The plaintiff claimed substantially in his declaration, and maintained at the trial, that on account of the foregoing facts he had been greatly injured and damaged in that (1) while so indicted and imprisoned he suffered great pain of body and mind, was greatly exposed in his credit and circumstances, and was prevented from transacting his business; and in that (2) he suffered in his good name, fame and credit and was brought into public scandal, infamy and disgrace amongst his neighbors and fellow-citizens; and in that (3) he suffered a loss of customers and. of profits in his business as a retail clothing merchant, failed, and was forced to retire from that business. At the trial the defendant contended, in substance, that said testimony did not tend to prove the issues as made by the pleadings, that the damages shown, if any, were speculative and too remote, and that plaintiff was not entitled to recover any sum as damages. The trial court agreed with this contention and ruled that the evidence offered by plaintiff “does not tend to establish a cause of action” and that “as a matter of law the plaintiff has no case,” and instructed the jury to return a verdict finding the defendant not guilty, which they did, and judgment was entered upon the verdict. Counsel for plaintiff here contend that the court erred in so instructing the jury and in entering the judgment.

While we think that the alleged loss of customers and of profits in plaintiff’s business was not shown or offered to be shown by plaintiff with sufficient certainty and definiteness (13 Cyc. 37, 49; Landis v. Wolf, 206 Ill. 392, 399; Chapman v. Kirby, 49 Ill. 211, 219; Mugge v. Erkman, 161 Ill. App. 180, 184), nevertheless we are of the opinion that the trial court erred in instructing the jury to find the defendant not guilty. The testimony disclosed that shortly after the delivery of the coat by defendant to plaintiff and its delivery in turn to Eberhardt by plaintiff, said coat bearing the counterfeit label which plaintiff believed to be genuine, it was. discovered that said label was a counterfeit and plaintiff was indicted by the grand jurors of Adams county, arrested, taken into the custody of the sheriff, and in the following year a nolle pros, was entered. Prior to the time plaintiff ordered the coat of the defendant, the latter had falsely represented that he employed members of said Union in his shop and was entitled to use the genuine label of said Union, and when defendant delivered the coat to plaintiff, bearing the counterfeit label, he not only deceived plaintiff bpt also committed an act declared unlawful by the statute, for which act he might suffer a fine or imprisonment or both. The defendant knew that plaintiff had purchased said coat of him for the purpose of making a resale of the same to a third party. Plaintiff resold the coat to Eberhardt and was indicted and taken into custody, charged with selling an article of merchandise bearing a counterfeit label. By this indictment, arrest, etc., plaintiff was injured. Was this the natural consequence of the wrongful act of the defendant 1 We think that under the testimony presented by plaintiff this was a question for the jury to pass upon. In Chapman v. Kirby, 49 Ill. 211, 218, it is said “Appellants having committed the wrong, must be held liable for all losses that flow from it. And if the loss on these various articles was the necessary and proximate result of the act,—and of that the jury must judge from the evidence,—they must be held liable.” In 21 Encyc. of Law (2nd Ed.) page 509, it is said: “And the question whether from the act or omission complained of the likelihood of injurious consequences should reasonably have been foreseen is also for the jury.” See also Galveston, H. & S. A. Ry. Co. v. Stovall, 3 Tex. App. Civ. Cas. 307, 309; Seckinger v. Philibert Mfg. Co., 129 Mo. 590, 603; 13 Cyc. 27; Swain v. Schieffelin, 134 N. Y. 471; Seith v. Commonwealth Electric Co., 241 Ill. 252, 260; Ford v. Hine Bros. Co., 237 Ill. 463. And we think that, had the case been submitted to the jury and the jury had found that plaintiff’s indictment, arrest, etc., was the consequence of defendant’s wrongful act, there was sufficient evidence of damage to plaintiff to warrant a verdict in his favor for such an amount as would fairly compensate him for the injury so sustained.

Counsel for defendant here urge that the jury were properly instructed to find a verdict for the defendant, because there is a variance between the declaration and plaintiff’s case as made in said written offers. In view of the fact that this alleged variance was not pointed ont or objected to in the trial court, and in view of the agreement between counsel as to technical objections, etc., as above outlined in the statement of the case, the contention is without merit in this court.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.