{ "id": 2455537, "name": "National Steel and Copper Plate Co., Plaintiff-Appellee, v. Angel Research, Inc., a Corporation, and United States Etching and Chemical Corporation, a Corporation, Defendants-Appellants", "name_abbreviation": "National Steel & Copper Plate Co. v. Angel Research, Inc.", "decision_date": "1963-02-18", "docket_number": "Gen. No. 48,749", "first_page": "419", "last_page": "426", "citations": [ { "type": "official", "cite": "39 Ill. App. 2d 419" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "155 NE2d 312", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "53 NE2d 963", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "386 Ill 200", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2493608 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/ill/386/0200-01" ] }, { "cite": "39 NE 115", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1894, "opinion_index": 0 }, { "cite": "153 Ill 437", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3030088 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ill/153/0437-01" ] }, { "cite": "73 NE 761", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1905, "opinion_index": 0 }, { "cite": "214 Ill 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3317534 ], "year": 1905, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill/214/0481-01" ] }, { "cite": "174 NE 561", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1930, "opinion_index": 0 }, { "cite": "342 Ill 503", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5252879 ], "year": 1930, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill/342/0503-01" ] }, { "cite": "77 NE 176", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1906, "opinion_index": 0 }, { "cite": "220 Ill 355", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3345864 ], "year": 1906, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill/220/0355-01" ] }, { "cite": "103 NE2d 546", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1913, "opinion_index": 0 }, { "cite": "261 Ill 219", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4742006 ], "year": 1913, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill/261/0219-01" ] } ], "analysis": { "cardinality": 539, "char_count": 10061, "ocr_confidence": 0.585, "pagerank": { "raw": 8.575340252617328e-08, "percentile": 0.48861574555118853 }, "sha256": "302151ca50335ea9c52093153c069620f3822d61e8e336894080cffc433aae53", "simhash": "1:5ab7c7852e5fdcfc", "word_count": 1650 }, "last_updated": "2023-07-14T20:51:26.818234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BTJEMAN, P. J. and ENGLISH, J., concur." ], "parties": [ "National Steel and Copper Plate Co., Plaintiff-Appellee, v. Angel Research, Inc., a Corporation, and United States Etching and Chemical Corporation, a Corporation, Defendants-Appellants." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiff, National Steel and Copper Plate Co., seeks equitable relief on two written agreements with defendant, Angel Research, Inc., which grant to plaintiff an \u201cexclusive right and franchise\u201d to purchase and sell \u201call products\u201d made by Angel. Although the agreements, dated October 15 and 22, 1959, are not identical in terms they deal with the same subject matter. Defendants appeal from a decree awarding injunctive relief and damages of $12,588.96 to plaintiff.\nPlaintiff\u2019s verified complaint, in three counts, alleges in substance: (1) a breach of the agreement by Angel, through sale of its products to defendant, U. S. Etching and Chemical Corporation [U. S.]; (2) a conspiracy by the defendants, Angel and U. S., to defraud plaintiff of its rights under the agreement; and (3) Angel\u2019s refusal to comply with a product warranty included in the agreements. Both defendants pleaded affirmative defenses, and defendant Angel counterclaimed against plaintiff.\nThe trial court referred to a master in chancery, for his conclusions of law and fact, plaintiff\u2019s motions for temporary and permanent injunction, and a motion of defendant U. S. to be dismissed as a defendant.\nIn the hearings before the master, the only evidence presented was that of plaintiff. Thereafter, the court approved the master\u2019s preliminary report, which recommended: (1) the denial of the temporary injunction; (2) the denial of the motion of defendant U. S. that it be dismissed from the ease; and (3) that the cause be re-referred for a full and complete hearing on the issues.\nAt the re-reference before the master, plaintiff adopted in full the evidence submitted by him in the earlier hearing, introduced no further evidence on his behalf, and closed his proofs. Defendants then asked the master to continue the hearing, as they were not ready or able to proceed at that time. Counsel for U. S. informed the master that he had spoken with the principals at Angel Eesearch and United States Etching and \u201cI was advised that they closed both business [es] . . . that they are no longer operating. That it appears that the only asset . . , either company has left is a cause of action [in an unrelated case]. . . . th\u00e1t the defendants have no funds with which to proceed with [the instant litigation] . . . .\u201d The master denied the motions to continue and closed the proofs.\nThe master\u2019s report found that plaintiff had proved the material allegations of its complaint, and recommended that the counterclaim be denied and that a decree be issued in favor of plaintiff. After overruling defendants\u2019 objections to the master\u2019s report, the court entered a decree which provided for: (1) the issuance of a permanent injunction restraining defendant Angel from selling any of its products to U. S., \u201cor anyone else except to the plaintiff as provided in said contracts\u201d; (2) the issuance of a permanent injunction restraining defendants Angel and U. S. \u201cfrom conspiring together or doing any act or acts as alleged in said complaint to defraud the plaintiff\u201d; and (3) a judgment against defendant Angel, in favor of plaintiff, for the sum of $12,588.96. This is the decree from which both defendants appeal.\nDefendants make two principal contentions: (1) that plaintiff never proved the essential allegations of its complaint; and (2) that the relief granted is inconsistent and improper. We agreed with defendants that \u201cin order to grant the relief prayed for in a bill the court must be able to find that the facts alleged therein are true.\u201d Leahy v. Nolan, 261 Ill 219, 221, 103 NE2d 546 (1913).\nDefendants first contend that there was no proof in the record that Angel sold any of its products to U. S. This contention is based on the meaning defendants assign to the word \u201cproduct.\u201d They argue that the \u201cchemicals and basic raw materials\u201d admittedly sold to U. S. by Angel are not \u201cproducts\u201d in the sense of the word as used in the agreements between plaintiff and Angel. Defendants would limit the meaning of the word to goods fabricated by Angel and unavailable in the same form in the open market. This distinction is contradicted by the explicit words of the agreement of October 22, which gave plaintiff the exclusive right to purchase all \u201cproducts now or hereafter produced and handled\u201d by Angel. Another part of the agreement referred to \u201call products manufactured and dealt in by Angel.\u201d We find no merit in this contention.\n. [3-5] Defendants next contend that plaintiff failed to prove, by clear and convincing evidence, any actionable conspiracy between TJ. S. and Angel. We agree that \u201ca conspiracy at common law may be defined, in short, as an agreement or combination formed between two or more persons to do an unlawful act or to do a lawful act by unlawful means,\u201d (Franklin Union No. 4 v. People, 220 Ill 355, 376, 77 NE 176 (1906)), and that the burden is upon plaintiff to prove the conspiracy by \u201cclear and convincing evidence.\u201d \u201cWhile conspiracy may be proved by indirect or circumstantial evidence such evidence must be clear and convincing, and if the facts and circumstances relied upon are as consistent with innocence as with guilt it is the duty of the court to find that the conspiracy has not been proved.\u201d Tribune Co. v. Thompson, 342 Ill 503, 529, 174 NE 561 (1930).\nDefendants\u2019 argument that the admitted sales by Angel to U. S. of \u201cbasic raw materials\u201d are not its \u201cproducts,\u201d and not improper under the agreements between Angel and plaintiff, is merely a restatement of their nnmeritorions contention that \u201cchemicals and raw materials\u201d are not \u201cproducts\u201d within the intent of the agreement.\nPlaintiff\u2019s evidence as to the interrelationships existing between U. S. and Angel was uncontroverted. It was stipulated that the same person was president of both Angel and U. S.; that the same person was the viee president and secretary-treasurer of both Angel and U. S.; that these two persons were directors of both Angel and U. S.; and that the president and secretary-treasurer were the sole owners of Angel and two-thirds owners of IT. S. Also, the master found that the two defendant corporations are \u201cproducing practically the same products for the same purposes, and using the same space . . . .\u201d \"We believe this evidence satisfies the requirement that the. conspiracy be proved by \u201cclear and convincing evidence.\u201d\nFinally, defendant Angel contends that there is no evidence in the record to justify the judgment against it for $12,588.96. The master found that this sum had been \u201creceived [by Angel] from the plaintiff,\u201d and the court, after confirming and approving the master\u2019s report, found that \u201cAngel Research, Inc. is indebted to the plaintiff ... in the sum of $12,588.96 and that the said plaintiff is entitled to judgment in said sum.\u201d From this, and in the absence of anything to the contrary in the record, it is apparent that this sum was not awarded for loss of profits or any similar category of contract damages.\nThe pleadings admitted that plaintiff advanced an initial sum of $10,000 to Angel upon the execution of the agreements. Plaintiff traces the additional $2,588.96 to further sums advanced to Angel, and contends that this amount was arrived at by the master through reference to a number of plaintiff\u2019s exhibits. Defendants did not include in the record twelve of plaintiff\u2019s exhibits, which plaintiff contends would substantiate the \u201cadditional $2,588.96\u201d that Angel \u201creceived from plaintiff.\u201d \u201cIn the absence of a complete record the findings of the chancellor incorporated in the decree will be supported by every reasonable presumption and intendment, and it will be presumed, in support of the decree, that the portions of the record omitted, if incorporated in the transcript filed here, would sustain the findings found in the decree.\u201d Patterson v. Johnson, 214 Ill 481, 494, 73 NE 761 (1905); Culver v. Schroth, 153 Ill 437, 39 NE 115 (1894); People v. Chicago, B. & Q. E. Co., 386 Ill 200, 53 NE2d 963 (1944).\nDefendants also contend that the court has improperly granted plaintiff inconsistent remedies. This argument is based on the rule that when one party repudiates a contract and refuses any longer to be bound by it, the injured party must elect his remedies. See Izzo v. City of Loves Park, 20 111 App2d 117, 155 NE2d 312 (1959). Since the judgment for $12,588.96 was awarded for a sum \u201creceived from the plaintiff\u201d and not awarded upon a quantum meruit or loss of profit measure of damages, we conclude that the rule is inapplicable on the facts here.\nDefendant Angel\u2019s final contention is that plaintiff\u2019s refusal to pay Angel for an etching machine (claimed defective by plaintiff) was a material breach by plaintiff, Avhich forgave any subsequent breach by Angel. We find no merit in this contention, since the October 22 agreement provided that \u201call invoices hereafter to National shall be charged against [the sum advanced by plaintiff to Angel at the time of the agreement.]\u201d A similar provision appeared in the October 15 agreement. There is no denial that monies advanced by plaintiff and held by Angel at the time of the sale of the machine were sufficient to cover the price of the machine.\nWe believe that the evidence in this record supports the essential allegations of plaintiff\u2019s complaint and forms a basis for the relief granted plaintiff by the decree, which is not inconsistent or improper.\nFor the reasons given, the decree is affirmed.\nAffirmed.\nBTJEMAN, P. J. and ENGLISH, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Gerald M. Petacque, of Chicago, for Angel Research Inc., co-appellant, and Martin Faier, of Chicago, for United States Etching and Chemical Corporation, co-appellant.", "Crowley, Sprecher, Barrett & Karaba, of Chicago (Harry E. Kopald and Robert A. Sprecher, of counsel), for appellee." ], "corrections": "", "head_matter": "National Steel and Copper Plate Co., Plaintiff-Appellee, v. Angel Research, Inc., a Corporation, and United States Etching and Chemical Corporation, a Corporation, Defendants-Appellants.\nGen. No. 48,749.\nFirst District, First Division.\nFebruary 18, 1963.\nGerald M. Petacque, of Chicago, for Angel Research Inc., co-appellant, and Martin Faier, of Chicago, for United States Etching and Chemical Corporation, co-appellant.\nCrowley, Sprecher, Barrett & Karaba, of Chicago (Harry E. Kopald and Robert A. Sprecher, of counsel), for appellee." }, "file_name": "0419-01", "first_page_order": 429, "last_page_order": 436 }