{ "id": 5149941, "name": "Joseph Perry, Appellee, v. Joseph Eson, Appellant", "name_abbreviation": "Perry v. Eson", "decision_date": "1956-01-11", "docket_number": "Gen. No. 46,814", "first_page": "423", "last_page": "427", "citations": [ { "type": "official", "cite": "8 Ill. App. 2d 423" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "134 Ill. App. 214", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2470290 ], "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app/134/0214-01" ] }, { "cite": "346 Ill. App. 385", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2431616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/346/0385-01" ] }, { "cite": "263 Ill. App. 219", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3255819 ], "weight": 2, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-app/263/0219-01" ] } ], "analysis": { "cardinality": 386, "char_count": 5907, "ocr_confidence": 0.524, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30294681272923635 }, "sha256": "0b435f95cd16b5dfdb42d802266393bfe601fd7f9e5c40ce1ddb43d5e7c806d2", "simhash": "1:32de75d2f72b3f5d", "word_count": 952 }, "last_updated": "2023-07-14T20:19:38.117678+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LEWE, P. J. and FEINBERG, J., concur." ], "parties": [ "Joseph Perry, Appellee, v. Joseph Eson, Appellant." ], "opinions": [ { "text": "JUDGE KILEY\ndelivered the opinion of the court.\nThis is an interlocutory appeal by defendant from an order restraining him from writing bonds in any of the Cooh County criminal courts.\nThe parties made a partnership agreement March 30, 1951, under which defendant was to write bail bonds in Cook County courts using plaintiff\u2019s collateral. The agreement provided for plaintiff\u2019s investment of capital, being a $7,000 deposit required to authorize defendant to engage in the business. This sum was established in the agreement as a debt due plaintiff from the partnership. Defendant\u2019s contribution was to be his services. The profits and losses were to be divided equally, defendant was to keep books of account and was bound to account weekly for all transactions. Between December 31st and January 10th, as each year ended, a full accounting was to be made. Defendant was to devote \u201call his time and attention\u201d to the work and was not to assign his interest or any part thereof to third persons. If either wished to retire from the business he was required to give not less than 15, nor more than 20, days notice to the other, and thereafter defendant was not to exercise any of his previous \u201crights or powers\u201d under the agreement. If the partnership was dissolved for any reason defendant was not to solicit, at any time, the partnership clients or to disclose its clientele to any one and he \u201cshall not engage in the business of a bondsman for a period of five (5) years thereafter.\u201d If either partner elected to retire or if defendant became disabled, or if \u201ceither shall be guilty of misconduct of such a character as to render it impracticable to carry on the partnership, then and in any event this partnership shall cease and terminate.\u201d\nPlaintiff alleged that defendant had not made the required accounting; that a breach of the agreement thereby resulted and the agreement had been terminated; and that despite the breach and termination, defendant is continuing to write bonds in violation of the agreement not to engage in the business for five years upon termination. Plaintiff asked for an accounting and injunction to restrain defendant in accordance with the negative covenant. Defendant answered, denying failure to account properly, the breach and the termination of the agreement. He denies continued writing of bonds on plaintiff\u2019s securities and denies \u201clegal conclusions\u201d pleaded by plaintiff with respect to the negative covenant. He alleged affirmatively that plaintiff, without defendant\u2019s consent, brought another person into the partnership to share in the profits and thus plaintiff was guilty of \u201cmisconduct of such a character . . . to . . . terminate\u201d the partnership ; that plaintiff had not given notice of his election to retire as required in the agreement; and that the agreement is illegal in so far as it purports to restrain defendant from his means of earning a livelihood.\nThe question on appeal is whether the chancellor abused his discretion in deciding that the order was necessary to preserve the equitable rights of the parties until a decision could be made on the merits of the case. Mayer v. Collins, 263 Ill. App. 219, 221.\nThe answer depends upon whether it is probable that plaintiff will succeed on the merits (Chicago Motor Coach Co. v. Budd, 346 Ill. App. 385) and the relative advantages and harm likely to be enjoyed or suffered in maintaining the status quo. Mayer v. Collins, 263 Ill. App. 219.\nThe only basis alleged for termination of the partnership, the failure to account properly, is denied by defendant\u2019s sworn answer. Thus, the chancellor in restraining defendant presumably anticipated the likelihood that plaintiff would prevail on the issue. But there is no allegation that plaintiff gave defendant the notice prescribed for termination and there is nothing in the pleadings to justify the anticipation of plaintiff\u2019s success.\nAlso the injunction grants plaintiff virtually the substantial remedies he seeks, because defendant is restrained from writing bonds; he is not limited to those written on plaintiff\u2019s security. This goes beyond the rightful scope of the temporary injunctive remedy. Chicago Motor Coach Co. v. Budd, 346 Ill. App. 385.\nPlaintiff, to sustain the order, argues that defendant\u2019s answer admits a cause of termination, i.e., plaintiff\u2019s wrongful conduct, and thus that the pleadings admit a cause of termination. The odd effect of this contention is to say that the chancellor could have foreseen that defendant would prove his affirmative defense of plaintiff\u2019s misconduct and thus justify restraining defendant. The situation presumed by this contention brings it within the following rule. \u201cThe contract being broken by appellant without right operated to relieve appellee from the further performance of any covenant restricting her from engaging in business of the same nature. . . .\u201d M. M. Mitchell Co. v. Mitchell, 134 Ill. App. 214, 216. We see no merit in the contention.\nWere the injunction to remain in effect the result would be the deprivation of defendant of his means of livelihood, with the only apparent benefit to plaintiff, taking defendant\u2019s affirmative defense as true, coming from his own misconduct. Thus the balance of advantage and harm is in favor of defendant.\nFor these several reasons we are of the opinion that the chancellor abused his discretion in granting the injunction. We need consider no other points raised. The order for temporary injunction is reversed.\nOrder reversed.\nLEWE, P. J. and FEINBERG, J., concur.", "type": "majority", "author": "JUDGE KILEY" } ], "attorneys": [ "John E. Toomey, and John P. Coghlan, both of Chicago, for appellant.", "Denenberg and Nothin, of Chicago, for appellees; Joseph B. Denenberg, Nathan T. Nothin, and Harry Gr. Fins, all of Chicago, of counsel." ], "corrections": "", "head_matter": "Joseph Perry, Appellee, v. Joseph Eson, Appellant.\nGen. No. 46,814.\nFirst District, Third Division.\nJanuary 11, 1956.\nReleased for publication February 29, 1956.\nJohn E. Toomey, and John P. Coghlan, both of Chicago, for appellant.\nDenenberg and Nothin, of Chicago, for appellees; Joseph B. Denenberg, Nathan T. Nothin, and Harry Gr. Fins, all of Chicago, of counsel." }, "file_name": "0423-01", "first_page_order": 439, "last_page_order": 443 }