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further considered by the law, beyond an item of evidence to be considered by the jury in estimating the damage to the realty; there is no form of law by which the removed fixture can be recovered, and the settled principles of law prohibit any suit or action for the fixture without, at the same time suing for and recovering the land to which the chattel has become affixed."

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eral, that when trees have been severed from the realty, or roots or herbs have been dug from the earth, and afterwards some third party carries them away, here trespass de bonis asportatis may be brought and damages recovered as for the asportation of personal property, and the action of trover is generally brought in such cases. Now, the bringing of the action of trover in such cases, shows that the detached chattel is considered as personal property. For it is a well-known principle of law, that the judgment in trover operates a sale or transfer of the property sued for to the defendant, whilst the damages assessed by the verdict of the jury is the price allowed the plaintiff for his property. If, then, the law will consider the chattel, when severed from the freehold, as personal property to the extent of authorizing the recovery of compensatory damages for its conver sion, why not consider it as persona. property to the extent of allowing an action to be brought for the recovery of the identical property itself? The old com mon-law lawyers much considered this subject in their contentions over the statute of 4 Edw. III., ch. 7. Prior to this statute, the universal rule of law had been that actio per senalis moritur cumpersona. But this starute, after reciting "that in times past executors have not had actions for a trespass done to their testators, as of the goods and chattes of the same testators carried away in ther life, and so such trespassers have hitherto remained unpunished, provided that the executors, in such cases, shall have action against the trespassers and recover their damages in like manner as they whose execu tors they be should have had if they were

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The law considers the detachment and asportation of the chattel which has become a fixture, in no other light than that of an injury to the land. And although the fixture may be of that class which can be easily detached from the land, and of a useful nature, so that the same may be carried from one place and set up and used at another place, and consequently may be liable to, and may be seized or levied on by writs of execution, attachment or other process, as could have been done, and was done, in the case supposed at the beginning of this article, yet, nevertheless, the chattel, by becoming a fixture, has forever lost its character as a chattel, and though it may subsequently be detached from the land, it is not thereby restored to its former state as a chattel, and as a consequence no action for the recovery of personal property in specie, as detinue or replevin, can be resorted to for recovering the property as a chattel. Neither, in case it is levied on by writs of execution or attachment, can the owner of the land interpose in a suit between third parties, and claim the property by means of the claimant's issue;7 but he can only recover for the injury to the land. There is, however, one phase of the case wherein the rigid rule of law is relaxed, and the fixture, when detached from the realty, is considered as quasi personal prop-life.'" erty; that is, there is a class of cases in which the fixture, when detached from the land, is regarded as personal property sub modo. But this relaxation of the law is never carried to that extent of allowing an action to be brought for the recovery of the fixture itself. There are cases, and the rule is gen

6 Schouler's Personal Property, pt. 2, § 113; 2 Smith's Leading Cases, p. 241; Burk v. Baxton, 3 Mo. p. 207; Blethen v. Towle, 40 Me. p. 310; Bainway v. Cobb, 99 Mass. 457; Wall v. Hinds, 4 Gray, 256; Stockwell v. Campbell, 39 Conn. 362; Thielman v. Carr, 75 Ill. 385; Richardson v. Borden, 42 Miss. 71; Smith v. Odorn, 63 Ga. 499; Lapham v. Norton, 71 Me. 83; Dobschentz v. Holliday, 82 Ill. 371.

7 Freeman on Executions, p. 312.

Under this statute it was held that whilst the executors could not allege and say quare clausum fregit, etc., that is, could not sur for an injury to the realty, and could not ever say quare clausum fregit et blada asportari, that is, could not say that the trespasse?

8 Toule v. Lovett, 6 Mass. 394; Arnold v. Jeffrey son, 2 Salk. 654; Goggesley v. Cuthbert, 2 Nev. Bep 170; Clowes v. Hawley, 12 Johns. Rep. 484; Murray Burling 10 Johns. Rep. 172; Benjamin v. Bank of E gland, 3 Canb. 419; Yea v. Field, 2 Term Rep. 76. 9 Of course, I speak here of compensatory damages. Punitive damages are not awarded on any such pri

ciple. But compensatory damages, in such cases, D the price paid by defendant to plaintiff for plainf property, which defendant has converted and app priated to his use.

broke into the close and carried away or cut and carried away trees, etc., there growing, yet, that when trees, corn, hay, etc., had been cut and left laying on the land, then the executor could sue any one who should enter on the land and carry the same away. This was first and finally settled in the great and leading case of Emerson v. Emerson, 1 Ventr. 187, and in 2 Keb. 874. Now trees, etc., growing on the land are a part of the land. Fixtures are a part of the land, and if these things when severed from the land become personal property so far as to allow of personal actions to recover damages for their conversion, why not also allow of personal actions to recover the property in specie, the property itself? This question is one of considerable practical importance. We know that this subject of fixtures, as to the fixture becoming a part of the land, is altogether a fictio juris, that there are many fixtures which can be readily and easily detached from the land, and which the owner wishes to make use of not as real estate, but as a mill or gin. Not only this, but there are cases, where it is of the highest importance to the owner, that he be allowed, in case his mill or gin is levied on or attached, to replevy the same, or file the claimant's issue and bond it, so that he may continue his milling or ginning, as where he "runs" a public gin-in such cases to deny to the owner the right to recover possession of his gin or mill itself. To say to him, you can only recover damages for the trespass on your realty, which would necessarily be small, because the loss of profits, or customers by the gin or mill being stopped, could not be recovered in an action for a trespass on the land,10 to thus deal out the law to him would be a practical denial of the maxim, ibi injuria, ubi jus remedium. The owner may be running a public gin. His may be the only gin for miles around in a backwood's settlement, and for him to be unable to bond the property, by filing the claimant's issue and making bond, in case the mill or gin was levied on under process, might be such an injury, that the small sum awarded for the trespass on the realty would be practically no

10 Stutz v. Chicago, etc. Ry. Co., 9 Am. St. Rep. 771; Ross v. Liggett, 61 Mich. 445; Alabama, etc. R. R. Co. v. Arnold, 84 Ala. 159; Louisville, etc. R. R. Co. v. Brooks, 83 Ky. 129; Daroh v. Illinois Cent. R. Co., 65 Miss. 14.

compensation. And, again, the fixture might be of such a nature or the circumstances might be such, that a kind of pretium offictionis would be connected with the fixture, and the man ought to be given his own, his very identical and same property. The conclusion of the whole matter is, that there are certain fixtures which can be detached readily from the realty, and being such are liable to be levied on under writs of execution or attachment, and in such cases the owner should be allowed to recover or retain possession of such fixture, either by filing the claimant's issue and bonding the same, or by some other proceeding which would enable him to recover or retain possession of the fixture itself, that is, the law should furnish him with a remedy by which he could retain or recover possession of the property, and hold the same until the determination of the right of property by the court.

From the conservative nature of the AngloSaxon mentality the legal right exists long before the remedy, and it is only through the urgency of this right that the legal remedy is brought forth. Thus, prior to the statute of Westminster 2d, the old forms of action then in existence were found inadequate to the needs of an advancing civilization, and there being no remedies adapted to these new rights, the profession by common consent resorted to writs adapted to the facts of each case; these new writs were called magistralia. But doubts arising as to the legality of these new writs, parliament legalized them by the statute known as Westminster 2d. Thus it was that the action of assumpsit, trover, and the other actions of "trespass on the case," were brought into existence and use. There are cases, similar in this behalf, to the one under consideration, wherein the common law by a rigid adherence to formality was unable to redress injuries,

11 This question generally comes up in this State by one man erecting or placing on the property of another, a mill gin or other machinery, without intending that it shall become a fixture, and then being sued by some creditor, the mill gin or machinery being levied on, the owner of the land comes forward and claims that the mill, etc., is a fixture, has become a part of the realty and is not subject or liable to be levied on under any character of process in the case. This was the case, in the case supposed at the begining of this article, in which B and S sued J C & Co., levied on a mill erected by J & Co., on the land of J. E. Cox. T represented Cox the owner of the land-Cox claimed the mill as a fixture.

leged that he was simply advertising these goods as having been ordered by, and manufactured for, said bankrupt firm, and denied that he was claiming or advertising in such a manner as to induce the belief that he had purchased the stock of the firm on hand in their store in Denver. He also set up affirmatively that the plaintiff was mislead

and the power of courts of equity have been successfully invoked. Thus, at common law, for injuries to real property, no action in form ex delicto could in general be supported against the personal representation of the wrongdoer; but a court of equity would frequently afford relief against the executoring and deceiving the public by materially false

of the wrongdoer, though at law the action moritur cum persona, and therefore when a tenant for life cut down timber and died, relief was decreed against his executors in favor of the remainder-man. On this principle a court of equity would doubtless afford relief in the class of cases under consideration. 12

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Colorado Court of Appeals, October 11, 1897.

Where it appeared that, after the purchase of a stock of goods of a certain bankrupt firm by plaintiff," defendant, who was engaged in the same business in the same city, advertised that he had purchased goods which had been manufactured for such bankrupt firm, which fact there was testimony to support, and it also appeared that plaintiff had, in its advertisements, grossly misrepresented the value of the stock so pur. chased by it, the facts were insufficient tojustify interference by injunction to restrain defendant from so advertising, on the alleged ground that the public would be misled and deceived thereby.

WILSON, J.: The parties to this suit were each engaged in the general clothing and gents' furnishing goods business in the city of Denver. In October, 1894, appellee, who was plaintiff in the trial court, purchased from the mortgagees a stock of goods of a bankrupt firm, Garson, Kerngood & Co., which had been engaged in a like business in the same city. In a few days thereafter, plaintiff commenced this suit, alleging that the defendant, by means of advertising in the press, and by placards displayed in the windows of his store and paraded through the streets, was misleading and deceiving the public, by tending to induce the belief that he had purchased this bankrupt stock, and praying for an injunction to restrain such acts. A temporary injunction, as prayed for, was issued without notice. Defendant answered, setting up that he had purchased goods which had been manufactured for Garson, Kerngood & Co., upon their order, some of which had been shipped to them, but not received, and some portion had not been shipped at all, on account of the failing credit of the firm. He al

statements in its advertisements as to the value of the stock of goods purchased, and the discount price on the cost at which it had been obtained. The answer was under oath. Defendant then filed a motion for a dissolution of the injunction. which was denied. Upon final hearing, judg ment and decree were in favor of plaintiff, and the injunction was made perpetual. From this, defendant appealed to this court.

In any view which we take of this case as presented by the record, we cannot see how it shows a state of facts which would justify the court in the affirmance of the judgment. We cannot approve a practice, nor subscribe to a doctrine, which permits the exercise by courts of the extraordinary power of injunctive relief for every wrong or infringement upon the rights of another. Such a course of procedure, if carried to its ultimate natural conclusion, would tend to entirely subvert the fundamental principles upon which our system of laws is founded. Injunction has been properly styled the strong arm of equity, to be used only to prevent irreparable injury to him who seeks its aid. It has never been found possible to lay down any exact rule regulating or controlling the exercise of this power by the courts, but it is an extraordinary power, and there is a universal consensus of authority, both in England and America, that it should be used only with the most extreme care and caution. Its abuse would serve not only to ren der the law absolutely uncertain, by substituting for its established principles the varying opinions of judges differing in temperament, education, knowledge, and disposition, but would, in the end, induce far more grievous wrongs than those it was intended to prevent. It is, as a remedy, more flexible and adjustable to circumstances than any other legal process, and it is true that the last few decades have brought about greatly changed conditions in society and business. In consequence, there have been necessitated, to meet these altered conditions, some modifications in, and relaxations of, the rules formerly applica ble to the law of injunction. In doing this, however, it is a mistake to assume that all of the old principles underlying it have been abandoned, and that all of the old landmarks have been destroyed. The rigid, narrow, and unpliant construction of the word "irreparable," which formerly prevailed, has long since given way, even where no statute expressly requires it, to enlarged and more liberal interpretation, in a cord with the more advanced requirements of the times, with the more enlightened spirit of the age, and with the increased necessities of

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trade and commerce. It still remains true, however, that before this remedy can properly be invoked, it must clearly appear that the threatened injury is one of a serious character.

It by no means follows that a writ of injunction | should issue, restraining the commission of an act, simply because that act would be an infringement upon the rights of, and cause damage to, another. It is true that this frequently offers a seductive and expeditious method of making a temporary, at least, disposition of an unpleasant emergency, if a kindly disposed judge can be found; but the final consequences do not always tend to inspire increased respect for the law, nor encourage its stricter observance. Nor should it always issue, even though the menaced damage might be serious. It is true that it is not required, as a condition precedent, that an applicant for the issuance of this writ should be wholly without remedy at law; but it is still conceded that, as a general proposition, the writ will not issue if it appears that the applicant has an adequate remedy at law. The rule also still remains in force that he who seeks an injunction must come into court with clean hands and a clear conscience. The charge that defendant, in his advertisements or placards, claimed to have been the purchaser of the stock of goods, was not sustained by the evidence. He did claim to have bought and have on sale goods manufactured for Garson, Kerugood & Co., and this he had an equal right with plaintiff to do, as there was testimony to support the pretension, and as plaintiff had purchased only the stock on hand in the Denver store.

The attempt to show that in the printed matter undue prominence was given to the words "Garson, Kerngood & Co.," and that the words "manufactured for" were too inconspicuous, was also a failure, so far as we can judge from the exhibits attached to the record. It would, in any event, be imposing too heavy a burden upon an appellate court, in ordinary cases, to require it to measure the type in which rival tradesmen proclaim the virtues of their wares, and it would be still more difficult for the court to determine what particular word, line, or sentence of a printed poster would be most likely to attract the public eye, and impress itself upon the public mind. The public eye is too varying and uncertain, and its mental impressions are not measured or controlled by any fixed rule of which we have knowledge, or to which we have been cited.

According to the plaintiff's complaint, the damage which it anticipated was that the public would be misled and deceived by the alleged false publications of defendant, and this was set up as the ground upon which it prayed an injunction. Even if this be true, the plaintiff itself was not entirely guiltless in this respect, and did not come into court with clean hands. It advertised in the public press that the purchased stock was of the value of $136,451.28, and that it had been bought by it at 42 cents on the dollar.

This would have made the purchase price over $57,000, whereas the evidence showed that the sum actually paid was only $31,000, and the testimony of a competent and disinterested witness placed the value of the whole stock when new at not to exceed $50,000. If the injunctive power of the court should have been invoked to prevent the public from being deceived about this transaction, surely the plaintiff should not have escaped. In this regard, the case, although not exactly parallel as to its facts, comes clearly within the principles so well expressed by our Supreme Court in Cigar Co. v. Pozo, 16 Colo. 397, 26 Pac. Rep. 556.

We by no means hold that in no case should a court interfere by injunction to prevent a tradesman being unwarrantably deprived of the benefits which he could reasonably anticipate as a reward for his enterprise in the legitimate advertisement of his business. Such a case might arise, but even then it should be carefully scrutinized, to the end that the court be not made simply an instrument to enable one tradesman to secure an unfair and unconscionable advantage over a rival in business. We do say, however, that the facts in this case, as gleaned from the record, are not sufficient to justify such an interference. The damage, if any could be expected, was entirely too doubtful, speculative, and remote. The threatened injury, if there was one, was neither so imminent nor so great that there was not a complete and adequate remedy at law, and the conduct of plaintiff itself was not of such a character as to give it high standing in a court of equity.

For the reasons given, the judgment and decree will be reversed, and the cause remanded to the trial court, with instructions to dissolve the injunction and dismiss the bill. Reversed.

NOTE. The purposes for which an injunction will be granted are very numerous. Among them may be mentioned the restraining an infringement of a patent, copyright or trade-mark (Schneider v. Missouri Glass Co., 36 Fed. Rep. 582; Singer Sewing Machine Co. v. Wilson Sewing Machine Co., 38 Fed. Rep. 586; Schneider v. Williams, 44 N. J. Eq. 391), the prevention or continuance of a public or private nuisance (Cumberland Valley Railroad Co.'s Appeal, 62 Pa. St. 227; Bigelow v. Hartford Bridge Co., 14 Conn. 565), the restraining the transfer or issuing of stock in a corporation (Osborn v. Bank, 9 Wheat. 738), the restraining the doing of unauthorized acts by a copartner of a corporation (Dodge v. Woolsey, 18 How. 331; Kean v. Johnson, 9 N. J. Eq. 401), the restraining the disclosure of confidential communications, secrets or papers (Salomon v. Hertz), 40 N. J. Eq. 400; Arthur v. Oakes, 11 C. C. A. 20; In re Debs, 15 S. C. Rep. 900, 158 U. S. 564. And see also Barrett v. Mt. Greenwood Cemetery Assn. [Ill.], 42 N. E. Rep. 891; HamiltonBrown Shoe Co. v. Saxey, 32 S. W. Rep. 1106), the restraining the removal of property or the evidences of indebtedness or of title to property out of the jurisdiction of the court, and also the commission of waste (Livingston v. Gibbons, 4 Johns. Ch. 571; Osborn v. Bank, 9 Wheat. 738), the restraining of the transfer of property or the parting with possession of such property. Malcolm v. Miller, 6 How. Pr. 456. An injunction will be granted only when there is no other

adequate remedy or where there is an urgent necessity of restraining the commission of the threatened act or where it is made to appear that irreparable injury will be otherwise sustained by the plaintiff. 7 Lawson's Rights, Remedies & Practice, 5769, and cases cited. An injunction can be obtained only for the protection of civil and private rights and will not be issued for the prevention of criminal or immoral acts (Gault v. Wallis, 53 Ga. 675; Joseph v. Burke, 46 Ind. 59; Burnett v. Craig, 30 Ala. 135; Moses v. Mayor, 52 Ala. 198; Sparkawk v. Railroad Co., 54 Pa. St. 401), though in some recent prominent cases the writ of injunction was thus successfully used.

The following recent cases afford examples of the use of injunctive relief as to private rights: S sold out his business of manufacturing, plant, good will, etc., to a company bearing his name, for stock therein, then sold out his stock, and again went into business. The company soon thereafter ceased to manufacture, sold part of its plant, and did no business except to turn over to other manufacturers, for a commission, such orders as happened to come in. Held, that an action would not lie to restrain S from doing business on his own account, and advertising the company as having gone out of business. Shonk v. Shonk Tin Print. Co., 37 Ill. App. 20. Injunction will lie to restrain former confidential employees, and others engaged with them, from divulging or using trade secrets or inventions, which were imparted to or invented by such employees in the course of their em ployment, where they had agreed to assign to their employer all the improvements which the might make in the line of his business while they were in his employ. Eastman Co. v. Reichenback (Sup.), 20 N. Y. S. 110. Injunction will lie against the publication of a picture of plaintiff in defendant's newspaper, with an invitation to readers of the paper to vote on the question of the popularity of plaintiff as compared with another person, whose picture is also published in such paper. Marks v. Jaffa (Super. N. Y.), 26 N. Y. S. 908, 6 Misc. Rep. 290. A court of equity should restrain by injunction the publication of a picture of a deceased member of complainant's family, taken from a photograph and portrait of deceased, where respondent has not observed the conditions on which the portrait and photograph were obtained. Corliss v. E. W. Walker Co. (C. C.), 57 Fed. Rep. 434. A court of equity, at the instance of one of the relatives of a deceased person, will enjoin the making and placing on public exhibition of a statue of the decedent by unauthorized persons, which plaintiff and all other relatives unite in alleging will cause them pain and distress, and will be considered by them a disgrace; and this, whether or not, in the opinion of the court, the proposed representation should produce the alleged effect. Schuyler v. Curtis (Sup.), 24 N. Y. 509, 30 Abb. N. C. 376. Plaintiff employed defendant in the manufacture of certain oils and greases. Before defendant entered such employment, he agreed not to divulge or use any secrets of the business plaintiff might make known to him. Subsequently, he left plaintiff's employ, and began the manufacture of similar oils and greases, using plaintiff's secrets therein. Held, that a permanent injunction was properly issued to restrain him from so doing. Fralich v. Despar, 30 Atl. Rep. 521, 165 Pa. St. 24. Though a private individual may enjoin the publication of his portrait, a public character cannot, in the absence of breach of contract or violation of confidence in securing the photograph from which the publication is made. Corliss v. E. W. Walker Co. (C. C.), 64 Fed. Rep. 280. An owner of a

process or invention for manufacturing an article, which was kept secret from all but confidential em ployees, may restrain former employees from disclosing, or using in a rival establishment, their knowl edge thereof, acquired while occupying such cor fidential relation; and it is immaterial that there was no written contract between them, or that, at the com mencement of the employment, the employees were minors, and performed comparatively unimportant duties. Little v. Gallus, 38 N. Y. S. 487, 4 App. Div. 569. The good faith which exists between an employer and those in his employ renders it illegal, even in the absence of any stipulation, to make use after the termination of the employment of any materials or any information acquired by them while they were in that confidential relationship; and the court will grant an injunction to restrain such use, in addition to awarding damages. Louis v. Smellie, 78 Law T. 226. The execution of a costly bust of a deceased per son, and exhibition thereof in the rooms of an association of which deceased was the founder, without the consent of her relatives, will not be enjoined at their instance on the grounds that the persons getting up the proposed staute were not friends of deceased; that, in the circulars requesting subscriptions for the staute, deceased was by mistake represented to have been the promoter of a patriotic movement; that, because of deceased's sensitive character, such public notoriety would have been unpleasant to her during life; that the bust will not be a likeness of the deceased; and that deceased did not sympathize with a woman's rights reformer of whom a bust was also to be made and exhibited,-as such facts show no ground for mental distress of the relatives. Schuyler v. Cur. tis, 42 N. E. Rep. 22, 147 N. Y. 434.

JETSAM AND FLOTSAM

BOYCOTT AGAINST LABOR-SAVING MACHINE.

We are aware of the risk always taken in basing discussion of a legal decision upon mere newspaper versions of its substance, without waiting for a copy of the opinion. Nevertheless, the recent decision of the U. S. Circuit Court of Appeals in the Eighth Cir cuit, in Oxley Stave Co. of Kansas City v. Members of the Coopers' Union and the Trades' Assembly of that place, has attracted wide popular attention, and it seems proper to venture upon some words of com ment founded upon the press reports, which have the appearance of being fairly accurate and adequate. The suit seems to have been for an injunction to pre vent the defendants from conspiring to carry out a boycott against the plaintiff for the purpose of com pelling the latter to withdraw from use a newly in vented machine for hooping barrels. Judges Sanborne and Thayer very naturally decide that the action of the defendants was illegal, and that the injunction would lie. The surprising feature of the case is that Judge Caldwell dissents.

We have no knowledge of the particular form of the present boycott, but the general law on the sub ject is quite well settled. Toleration by the courts el the boycott principle would always be pro tanto gir ing countenance to anarchy. Courts have now with practical unanimity recognized the right of employees to strike, and to take any peaceable concerted meas ures against their present cr former employers, procure an increase of wages or the redress of any grievance. The gist of a boycott, however, is to draw utterly disinterested outsiders into a controversy, for

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