Slike stranica

Co.; that Mr. Digby Maitland, one of the firm, brought all of the labels of the firm to this country and exhibited them to him, and he derived the knowledge that the original proofs were such in fact from that member of the firm.


the people to prove the names of the partners, but that the doctrine of idem sonans applied, and the law did not favor extreme technicality in regard to proof of the name, where the sound of the names was very similar. The judgment was reversed, and it was The Attorney General contends that it was said that the instruction was apt to influ· unnecessary to prove that Tanqueray, Gordon ence the jury to disregard the difference be& Co. was a corporation, because the crime tween the two names, "Max" and "Matt,” in created by the statute is merely the sale of case the jury had any reasonable doubt as goods with a counterfeit label counterfeit label attached. to which of the names was, in fact, that of That position cannot be maintained, because the partner in question. The instruction deit is not the purpose of the act to protect so- prived Vincendeau of the benefit of evidence ciety against the sale of things injurious to that the name of Von Guaita was "Max," and the public, such as intoxicaung liquors, adul- it was error, because the defendant could terated or unhealthful food, or things of that not be convicted if that was his name. kind. The title of the act, where the single People v. Dantuma, 252 Ill. 561, 96 N. E. subject of it must be declared, shows that 1087, 39 L. R. A. (N. S.) 1190, Ann. Cas. subject to be the protection of associations, 1912D, 370, the information charged that the unions of workingmen and persons in their label was that of the Allied Printing Trades labels trade-marks and forms of advertising. Council of Chicago, while the evidence showThe act contains no provision for the pro-ed that the label was that of the Internationtection of society or the public but all of its al Typographical Union of North America, of provisions are solely for the benefit of those who adopt or use labels, trade-marks, designs, devices, or forms of advertisement. The purpose of the act is to secure to the one who produces a product the fruits of his labor or skill, regardless of the question whether the product be gin, food, or anything else. The purpose of the act being to protect property rights, the wrong done by a violation of the act is a wrong to the one who owns the prop-ness if there was not a suit pending in a erty right in the label, trade-mark, or form of advertising. An information, therefore, must show an invasion of a property right possessed by some legal entity. There is no distinction between an information in such a case and the charge that the property of some person has been stolen or embezzled, where the ownership of the property must be alleged with accuracy. Wallace v. People, 63 Ill. 451; Staaden v. People, 82 Ill. 432, 25 Am. Rep. 333; People v. Brander, 244 Ill. 26, 91 N. E. 59, 135 Am. St. Rep. 301, 18 Ann. Cas. 341. A corporation is embraced within the name "person," but in the law of this country a partnership is not a person, as distinguished from the members composing the firm in whom the right of property exists.

The precise question involved in this case has been twice determined by this court. In Vincendeau v. People, 219 Ill. 474, 76 N. E. 675, Vincendeau was charged with selling 24 bottles containing a liquid resembling champagne, to which was attached a counterfeit label of G. H. Mumm & Co., alleged to have been a counterfeit of the label copyrighted and used by Peter Herman Mumm, Matt Von Guaita, and Herman Von Mumm, partners doing business as G. H. Mumm & Co. There was evidence that the firm was composed of the persons named in the indictment but

there was one witness who said Von Guaita's name was Max, and not Matt. The court instructed the jury that it was necessary for

Indianapolis, Ind., and it was held that there was a fatal variance between the evidence and the proof. In this case there was not only a failure to prove the existence of a corporation adopting and using the label and having a property right therein, but there was a material variance between the information and the evidence.

[5] The defendant's attorney asked a wit

Circuit Court of the United States entitled in the name of Tanqueray, Gordon & Co., a corporation, as complainant, and Max Stricker as defendant. The court did not permit the question to be answered, and as questions do not constitute evidence, the question did not tend to show the existence of a corporation, and asking the question was not an admission of corporate existence.

The judgments of the Appellate Court and municipal court are reversed, and the cause is remanded to the municipal court. Reversed and remanded.

(259 Ill. 183) METROPOLITAN TRUST & SAVINGS BANK et al. v. PERRY. (Supreme Court of Illinois. June 18, 1913.) 1. DEEDS (§§ 177, 181*)-SUPPRESSION OR DESTRUCTION-EFFECT AS TO TITLE.

Where deeds have been executed and delivered to the grantee, the act of the grantor in thereafter fraudulently obtaining possession of the deeds, or in destroying them, does not reinvest the legal title in the grantor.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 549, 5492, 553; Dec. Dig. §§ 177, 181.*]



delivered a deed, in repossessing himself of, or The act of a grantor, who has regularly

destroying, the deed without the consent of the grantee, not reinvesting the grantor, with the

legal title, does not make him a trustee for the grantor.

[Ed. Note. For other cases, see Trusts, Cent. Dig. § 143; Dec. Dig. § 94.*]


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CARTWRIGHT, J. Harry A. Perry, who died on December 14, 1909, was a gambler, who had been engaged in bookmaking, gambling, and conducting gambling resorts in Chicago and elsewhere. BURDEN OF Chicago and elsewhere. Prior to 1898 the appellee, Mary E. Perry (who was then Mary E. Dunn), a young unmarried woman, had been a frequenter of gambling resorts in Chicago, drinking with men, persuading them to play games of chance, and receiving a commission on money which they played through her influence. About 1897 she became acquainted with Harry A. Perry, and from 1898 they lived together in the rela

Where decedent furnished the money to purchase real estate, the title to which was taken in the name of a woman with whom he stood in an intimate relation and who afterwards became his wife, his devisee, claiming that the wife afterwards executed deeds to the husband which had disappeared, had the burden of proving the execution of such deeds.

The evidence in such case held insufficient

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 562-573; Dec. Dig. §.193.*] 4. DEEDS (§ 207*)-EXECUTION-SUFFICIENCY tion of husband and wife at different flats OF EVIDENCE. and hotels, with the exception of about one year, until January 6, 1906, when they were married, and that relation continued until his death. While they were living together in the illicit relation a conveyance to her of the ground and flat building known as

to prove the execution of the deed by the wife

to decedent.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 614-624; Dec. Dig. § 207.*] 5. TRUSTS (§ 86*)-RESULTING TRUSTS-BUR


The burden of proof in such case was upon the devisee to prove facts from which the law would raise a trust in favor of decedent and thus establish title in the devisee contrary to the record legal title.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 128; Dec. Dig. § 86.*]


A "resulting trust" arises in favor of one who pays the purchase money or some definite part of it at the time the deed is taken in the name of another; it does not arise from any contract or agreement by the parties, but is created by an implication of law from the two facts of payment of the purchase money by one and conveyance of the title thereby purchased

to another.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 102, 103; Dec. Dig. § 72.*

For other definitions, see Words and Phrases, vol. 7, pp. 6188–6192.]



In an action to enforce an alleged resulting trust, evidence held insufficient to show that complainant's decedent paid for the property in controversy.

5653 Prairie avenue was made on October 20, 1903, by August Johnson and wife. The consideration was $13,300, made up of $5,800 paid in cash and checks and the assumption of a mortgage for $7,500, which was afterward paid. On January 13, 1905, August Johnson and wife and August Lindholm and wife conveyed to her another piece of ground, with the flat building thereon, on Calumet avenue. The consideration was $26,000, which was paid in cash; $12,000 being paid to Johnson and Lindholm, and $14,000 to the holder of a mortgage. The deeds were recorded when made, and the record title has since stood in the name of Mary E. Dunn. In the spring of 1909 Harry A. Perry became insane, and on June 28th of that year the Metropolitan Trust & Savings Bank, the complainant in the original bill in this case, was appointed his conservator. The original bill filed in the circuit court of Cook county against the appellee, Mary E. Perry, alleged that the real estate conveyed to her when she was Mary E. Dunn was paid for with the money of Harry A. Perry; that by reason of such payment there arose a resulting trust in the property in his favor; that, in pursuance of an understanding and agreement between the appellee and Harry A. Perry before their marriage, she executed and delivered to him deeds conveying the title to the property, which were deposited in safety deposit vaults; and that she had access to [Ed. Note. For other cases, see Trusts, Cent. the vaults and had taken the deeds from the Dig. §§ 119, 120; Dec. Dig. § 82.*] box and had them in her possession or had destroyed them. the deeds alleged to have been executed were The prayer was that, if be decreed to deliver them over, together with in the possession of the appellee, she should the abstracts and other papers relating to the title, and, in case she had destroyed or refused to deliver them, she should be decreed to make proper conveyance or a master in chancery should be authorized and diDavid K. Tone, of Chicago, for appellant. rected to make the same. The appellee anEdward H. Morris, of Chicago, for appellee.swered the bill, denying that the property

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*] 8. TRUSTS (§ 82*)-RESULTING TRUSTS-PAYMENT OF PRICE FOR CONVEYANCE TO AN


The fact that decedent gave money to a woman with whom he stood in an intimate relation, and who afterwards became his wife, did not create a resulting trust in the real estate purchased with such money.

Appeal from Circuit Court, Cook County; E. M. Mangan, Judge.

Suit by the Metropolitan Trust & Savings Bank, conservator of Harry A. Perry, an in

sane person, against Mary E. Perry, in which Cora C. Bloom huff filed a supplemental bill. Original and supplemental bill dismissed, and complainant Bloomhuff appeals. Affirmed.

was paid for by Harry A. Perry or that she is not claimed by counsel for the appellant ever executed any deed or deeds conveying that there was a constructive trust, or that the premises or that there was any under- facts were alleged or proved sufficient to standing or agreement that she should do so. show such fraud on the part of the appellee During the pendency of the suit Harry A. that the court would declare her a trustee. Perry died, leaving a last will and testa- Counsel correctly states the questions involvment, in which the appellant, Cora C. Bloom- ed in substance as follows: (1) If Harry A. huff, was one of the devisees, and she was Perry furnished the money with which the admitted as a complainant and given leave premises were purchased and the appellee to file a supplemental bill. The supplemental held the title for his benefit and executed bill alleged the death of Harry A. Perry, quitclaim deeds conveying the premises to leaving the last will and testament, which him, which deeds were in his possession, unwas admitted to probate, by which he devis- recorded, when a conservator was appointed, ed to her and Frank X. Walls one-half of he was the owner of the property, invested his estate in trust for her benefit for life with the legal title, and no question of a with a power of appointment of the remain- resulting trust arises; (2) if the considerader by her will, and devised the remaining tion was furnished by Harry A. Perry, and one-half to the appellee and Walls with the there was no presumption, from the relation same provisions for the benefit of appellee. It of the parties to each other, that the conwas also alleged that Walls refused to quali-veyances were intended as gifts to the apfy or accept the trust. This bill did not pellee, or if such presumption was rebutted waive an answer under oath, and it was an- by circumstances showing that they were not swered with general averments similar to intended as gifts, then a resulting trust those in the answer to the original bill. The would arise. Counsel contends that the only supplemental matter alleged related to deeds were executed, and even if they were the death of Harry A. Perry and his will, not executed the property was paid for by and as to such matter the answer had the Harry A. Perry; that there was no presumpforce and effect given to an answer under tion of a gift from the relation of the paroath; but there was no controversy as to ties, and the evidence showed that the conthe facts so alleged. The issues were refer- veyances were not intended as gifts. red to a master in chancery, who took the On the question whether the premises were evidence and reported his conclusions that conveyed by the appellee to Harry A. Perry, the money of Harry A. Perry paid for the so that he became the owner of the property property; that it was agreed the appellee and holder of the legal title, the evidence should hold the legal title in trust for his was as follows: In the spring of 1908 Carl benefit, with confidence on his part that she Meyer, an attorney, was employed by Perry to would so hold the premises for him; that draft his will and went with him to safety subsequent to his becoming incapacitated deposit vaults in Chicago, where Perry took she determined to take advantage of his in- out his papers for examination, to enable the capacity and took the position that she was attorney to understand and pass upon his tithe legal owner of the premises, with the tles. Among other documents there were fraudulent intention of depriving him of his papers relating to the flat buildings located beneficial interest; and that these facts op-on Prairie and Calumet avenues. erated to create a constructive trust in his favor. He recommended a decree in accordance with the prayer of the supplemental bill. The cause was heard by the chancellor on exceptions to the report, which were sustained, and the original and supplemental bills were dismissed for want of equity at the cost of the complainant in the supplemental bill. She appealed from the decree to this


[1, 2] It will be observed that neither the original nor supplemental bill alleged any fact necessary to the creation of a trust ex maleficio arising by construction of law. The facts alleged were the payment of the consideration by Harry A. Perry, creating a resulting trust in his favor, and the execution of deeds by which he became invested with the legal title. The fact that the appellee had obtained possession of the deeds and still had them or had destroyed them would not reinvest her with the legal title or make her a trustee, and the findings of the master did not follow or correspond with the case


then saw among the papers quitclaim deeds
purporting to be signed by Mary Dunn and
acknowledged before a notary public, quit-
claiming the premises to Perry. The deeds
were not recorded, and Meyer advised Perry
to have them recorded; but Perry said there
were reasons why he did not have them re-
corded. Meyer advised him that if he had
absolute confidence in the appellee, who was
then his wife, the deeds were just as valid

as if they had been recorded, but if anything
happened to them he would have to show
the facts. The will was executed on June 6,
1908, and Perry was then in bad condition
and near a nervous breakdown and was go-
ing to Battle Creek for treatment for the
disease which afterward proved fatal. His
physician, Dr. Frank X. Walls, was called in
by Meyer when the will was executed, to be
assured that he was all right and capable of
Charles F. Bloomhuff, son
making a will.
of the appellant, testified that in the summer
of 1908, after Perry had been at Battle

had transferred both of the flat buildings to him, and that this was while they were having some controversy and both of them were crying. Harry Brolasky, who had been a manager of what he called "skin games" and a promoter of "get-rich-quick" schemes, testified that in April, 1906, in New Orleans, the appellee said that Perry put the property in her name and that she deèded it back to him. There was an assignment, without date, on the back of a guaranty policy on the premises to Harry A. Perry, signed by the appellee when she was Mary E. Dunn. On February 25, 1905, Harry A. Perry made a will, not describing any property, and did not mention the appellee in the will, and on February 16, 1906, she made a will, giving all her property to him. She testified that she signed the assignment of the guaranty policy because she was told that she should do so on account of having made the will, and the fact that he mentioned no property in his will and gave nothing to her tends to show that she was already provided for.

and worked on the books at race tracks for him as cashier, testified he found some papers in the toilet room, on the floor; that he saw the signature "Mary Dunn" on a deed partly printed and partly written and was going to give the papers to appellee, but before he got to the elevator Perry got off; that the witness handed them to him, saying that he was going to give them to Mrs. Perry, and Perry said it was a mighty good thing that he did not give them to her; that he lost them and would not have her see them for anything in the world; that Perry said he put the job up himself and only wanted the deeds in case she died, and put them in his pocket. Carl Meyer did not remember the name of the notary appearing on the deeds, and there was no other proof that they were executed by the appellee.

[3] The burden of proof rested on the appellant to establish the fact that the deeds were executed by the grantor. Dagley v. Black, 197 Ill. 53, 64 N. E. 275.

[4] The evidence fell short of the requirement of the law in that respect, and in view of the testimony of disinterested witnesses, the necessary conclusion is that the deeds were made by Perry with the intention of using them only in case of the death of the appellee. The improbability of his anticipating her death before his own in the spring of 1908, when he was in failing health and she was young, robust, and healthy, is urged by counsel; but, if the deeds had been made at that time, the fact of his failing health would not have justified the chancellor in holding that the appellee executed the deeds. As they were signed "Mary Dunn," the inference is that they were made before the marriage, at a time to which the argument does not apply.

The fact that Perry had what purported to be the quitclaim deeds in his possession was not denied, and it was admitted that appellee had access to the safety deposit vault. The evidence in her behalf was that Perry did have such papers. Milton J. Wolff, who was private secretary for Harry A. Perry and went with him to the various places where they were operating, testified that in the fall of 1908 he went with Perry to the safety deposit vault and Perry handed the deeds to him; that the witness asked Perry where he got them, and told him that they were not even signed right, as the initial "E" was omitted and the name was signed "Mary Dunn," but Perry said they answered the purpose, that he had shown them to Meyer, who said they passed; that Perry then said that he did not want the deeds any more; and that he only had them in case of accident, "but now he was so well covered." The witness said the signature to the deeds was not the signature of the appellee; that Perry showed him the will of the appellee, and put the deeds in with papers that he was going to take out when he left the room. William A. Pinkerton testified that he saw Perry at the office of the witness in May, 1908; that he had two quitclaim deeds; that the witness knew the handwriting of the appellee and said that the signature was not Mrs. Perry's writing; that Perry said, "What of it?" and the witness asked him what he [6] Such a trust arises in favor of one who was trying to do, "break into the penitentia- pays the purchase money or some definite ry or get into trouble?" that Perry said her part of the whole, and arises, if at all, at family and he did not get along well, and if the time the deed is taken and on the facts she died the property would revert to her then existing. It does not arise from any family; and that Meyer advised him to put contract or agreement of the parties, but is the deeds on record. After some urging by created, by implication of law, from the two Pinkerton he said he would destroy the pa- facts of payment of the purchase money by pers, and put a match to them and burned one and conveyance of the title thereby purthem up. Edward Sturgeon, who was an chased to another. Reed v. Reed, 135 Ill. employé of Perry for 20 or 25 years and had 482, 25 N. E. 1095; Furber v. Page, 143 Ill.


[5] The appellant having failed to prove the execution of the quitclaim deeds vesting title in Harry A. Perry, the remaining question is whether he paid for the property when the relations of the parties raised no presumption that the conveyances were intended as gifts or under circumstances showing that they were not so intended. The burden of proof was upon the appellant to prove facts from which the law would raise a trust and establish title contrary to the record legal title. Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N. E. 383; Koster v. Miller, 149 Ill. 195, 37 N. E. 46; Lord v. Reed, 254 Ill. 350, 98 N. E. 553.

50 N. E. 142; Keith v. Miller, 174 Ill. 64, 51 | account in the Hibernian Bank, from which N. E. 151; Pain v. Farson, 179 Ill. 185, 53 N. she drew $500 on October 5, 1903, and paid E. 579.

[7] There was a great deal of evidence, oral and documentary, both as to the one who paid the purchase price and the ability of the appellee to make the payments. To analyze the testimony at length and state our views as to the weight and effect to be given to the testimony of different witnesses would be neither beneficial nor practicable. The evidence tending to show that Harry A. Perry paid the consideration consisted partly of the fact that he had standing in the name of his mother, Mary J. Tubbs, 250 shares of Illinois Central Railroad stock, which was sold and transferred in January, 1905, realizing about $38,750, and there was no explanation where the proceeds of the sale went. That was about the time the second purchase for $26,000 was made. But the fact that no one knew what became of the money would be but a slender support for a finding that it went into this property, especially in view of the business in which Perry was engaged. The first purchase was in 1903, and it is argued that Perry must have paid for the property because the appellee had no legitimate means of earning money, and the commissions on money that she induced men to play in gambling houses would not account for any substantial sum. The transactions were closed and the purchase money paid in the office of Edward H. Morris, solicitor for appellee, and there was testimony that on each occasion Perry handed the money to Morris. There was also testimony that the appellee said at different times that the fiats belonged to Perry, and he directed repairs on the buildings at different times and spoke of them as his own. The evidence for the appellee consisted of her own testimony as to matters concerning which she was competent to testify; testimony of Edward H. Morris, her solicitor, and persons in his office, and bankers, brokers, and real estate agents. There was also documentary evidence. The evidence for the appellee was closed before the master without the testimony of the solicitor, after which appellant was allowed to put in new evidence not of a rebuttal nature, and the witness Brolasky then testified that he had promoted the "get-rich-quick" schemes under the guidance of the solicitor, and also testified to a disreputable transaction by such solicitor. After that the solicitor testified as a witness not only in contradiction of Brolasky, but also generally in the case. His credibility was affected by his relation to the suit, but it was practically the same as the evidence of brokers, bankers, and the documentary evidence. The evidence of the possession of means by appellee and that she was able to pay for the property was that at times before the purchase she had deposit accounts in five or six different banks, and that at the

$300 as a first deposit on the Prairie avenue purchase. It was proved that Morris paid on that purchase two checks, one for $2,000 and another for $263.65, which she repaid by withdrawing the balance of her deposit, $2,403.37, about January 8, 1904. This was testified to by Morris and appellee and a disinterested witness who went to the bank with her. The same witness testified that she was present when the appellee loaned Perry $8,000, and he gave her a note for it. There was evidence that in 1899 or 1900 the appellee loaned Mrs. George Hankins $7,000—at one time $5,000 and at another $2,000-to take up a loan of Mrs. Hankins at the Ft. Dearborn National Bank, secured by diamonds held by the bank, and that the diamonds were delivered to the appellee and the loan was paid to her in 1905 by the sale of the diamonds. There was uncontradicted evidence that appellee bought $10,000 worth of Cook county bonds in July, 1903, through the Merchants' Loan & Trust Company, and that they were sold in January, 1905; that she also owned $5,000 worth of United States Steel stock, preferred, bought by her through Finley, Barrell & Co., and in January, 1905, she bought 100 half shares of Reading stock and paid for it $4,425. She contradicted every statement of witnesses that she had said the flats belonged to Perry, and when he was sued, in November or December, 1905, by a contractor for work done on the Calumet avenue property which he ordered, he swore that he was not the owner of the property; that he was only acting as agent for his wife when he ordered the work done; and that she was the owner of the property. From the time of the purchases the premises were rented by agents, to whom the appellee was introduced as owner, and they paid her the rents, less their commissions. The appellee and Morris and a clerk in his office testified that Perry was not present on the occasion of either purchase and did not hand over the money for the property. She testified that while she was living with Perry before the marriage he gave her considerable sums of money, and while boarding at a hotel gave her $100 a month.

[8] Sufficient has been said to show that the appellant did not make such proof that Harry A. Perry paid for the properties, or either of them, as the law requires. It is beyond question that the appellee had large sums of money which were her own, and the source from which it was derived is not important. If much of it was given to her by Harry A. Perry, as is quite probable, the fact that she invested it in the property did not create a resulting trust. As proof that Perry paid for the property was lacking, there is no occasion to consider what presumption would arise if he had.

The decree is affirmed.

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