{ "id": 2606222, "name": "Hamilton Crary v. Jones & Dommersnas Company", "name_abbreviation": "Crary v. Jones & Dommersnas Co.", "decision_date": "1907-12-24", "docket_number": "Gen. No. 13,560", "first_page": "225", "last_page": "232", "citations": [ { "type": "official", "cite": "138 Ill. App. 225" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "107 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5366795 ], "opinion_index": 0, "case_paths": [ "/ill/107/0226-01" ] }, { "cite": "70 Ill. 369", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308414 ], "opinion_index": 0, "case_paths": [ "/ill/70/0369-01" ] }, { "cite": "90 Ill. App. 314", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 1673425 ], "opinion_index": 0, "case_paths": [ "/ill-app/90/0314-01" ] }, { "cite": "175 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3160820 ], "opinion_index": 0, "case_paths": [ "/ill/175/0072-01" ] } ], "analysis": { "cardinality": 651, "char_count": 15727, "ocr_confidence": 0.493, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08266408582121969 }, "sha256": "07bbd2152a7ebc468636080eb6b411c2bbc0f0bf215f55b439a2c45541dbc93e", "simhash": "1:e27c57b96ce71b59", "word_count": 2684 }, "last_updated": "2023-07-14T15:53:16.970107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hamilton Crary v. Jones & Dommersnas Company." ], "opinions": [ { "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nThe apparent ground upon which the Superior' Court canceled the contract in controversy and restrained appellant from manufacturing saws thereunder is, that the latter made no report such as the contract provides for in response to the request made by appellee of date December 8, 1904. It is contended in \u25a0behalf of appellant that appellee had waived a report under oath for the quarter preceding January 1, 1904.\nIn the written request referred to appellee said, \u201cWe desire a report showing what has been done under your contract with the company up to December 1, 1903.\u201d In the contract appellant had agreed to make full and true returns under oath upon the tenth days of January, April, July and October in each year, of sales made, but he was under no contract obligation to make at that time nor at any time a return up to December 1, such as appellee called for. If he made due return under oath on the tenth of October, 1903, or if such return under oath had been waived by appellee, he was under no contract obligation to make any further return until the tenth of January, 1904. If that return also had been made or waived, appellee had no contract right to require a return under oath until the tenth of April following. In any event, appellant was strictly within his contract right in regarding appellee\u2019s request for a report showing what had been done under the contract up to December 1, 1903, as a mere informal request for information and in replying as he did that \u201cthe only statement we have to make is that the royalties had been paid up to January 1, 1904.\u201d That this reply was in good faith and at least without apparent intention to give offense would seem to be indicated by the context of the letter which invited appellee\u2019s new president to a friendly call, suggesting that it would be \u201cto our mutual advantage to become acquainted with each other. \u2019 \u2019 Subsequently appellee\u2019s new president and secretary did call on appellant and asked to see his books. Appellant is said to have replied that he had no books to show him. In refusing also to show his books appellant seems to have been acting within his rights. The contract gave appellee no authority to inspect appellant\u2019s books of account, and such a demand would not in all probability be favorably regarded by any business man, especially when made by one who had a suit pending against him.\nWithout further notice or parley appellee, on the thirteenth of February, 1904, notified appellant that appellee had elected to terminate the contract and directed bim not to manufacture thereafter or sell any of the patented devices referred to therein. So far as appellee then knew, appellant had made all due returns prior to the election of Mr. James g,s president of the company. The latter testifies that this may have been done, and that his predecessor Mr. Dommersnas had then \u201cattended to all the business of the company just as I do now.\u201d Appellant, however, testified and the fact is not questioned, that it had not been customary for him to make returns under oath and he had not done so, that the appellee had received his reports not under oath without any question, that the question as to returns under oath was never raised, that he had always paid appellant the amount due it under the contract, that he had paid these amounts to Dommersnas, then appellee\u2019s president, and that he had never had any business dealings with reference to the contract with any other officer of complainant prior to January 1, 1904. Notwithstanding this uncontradicted testimony it is declared by appellee\u2019s .counsel that there is an entire absence of any evidence tending to show that appellee waived the making of reports under oath. This is the material question in the case.\nIt is axiomatic that forfeitures are not favored by the law, nor regarded by courts with any special favor. King v. Radeke, 175 Ill. 72-77; Flicek v. High Court C. O. of Foresters, 90 Ill. App. 314-352; Palmer v. Ford, 70 Ill. 369-377. As said in the last cited case: \u201cThe party who insists upon a forfeiture must make clear proof and show he is entitled to make such declaration. It is a harsh way of terminating contracts and he who insists upon making such declaration cannot complain if he is held to walk strictly within the limits of the authority which gives the right.\u201d In order to enforce the forfeiture sought, appellee must show a clear right. This it does not do. It is clearly apparent from the unquestioned evidence that appellee had for nearly two years been in the habit of receiving royalties from appellant in accordance with the' contract upon unsworn reports which it had accepted without question. It is no doubt true that under the terms of the contract appellee had a right to require thereafter that the returns should be under oath and it was appellant\u2019s duty to so make them. But it was also within appellee\u2019s power to waive such sworn returns, and that it did so for the period prior to the first of January, 1904, is manifest. We are at a loss to understand the assertion that there is an entire absence of evidence of waiver of sworn returns on the part of appellee. In support of such claim we are referred to Penn. Coal Co. v. Ryan, 107 Ill. 226-234. In that case it was claimed the appellant had waived the right to insist on payment of money as the contract provided because the contract had never been canceled for appellee\u2019s default. The court held that \u201cnot having canceled the contract, the appellant simply occupies the same position it would occupy had the cancelation clause been omitted.\u201d It must suffice to say that the case affords no support for the contention that appellee had not waived returns under oath.\nIt is argued that appellant deliberately refused to comply with the contract when requested to make return of sales as provided therein. As above stated, appellant was under no contract obligation to make return at the time appellee asked for a report showing what had been done up to December 1, 1903, nor for that period. All royalties had been paid up to January 1,1904. Appellee had asked for and received payment in advance for that last quarter, on an estimate of what the sales and royalties thereon would probably be. The evidence shows that this estimate .was within one dollar and twenty cents of what the royalties on sales for that quarter actually proved to be. Appellee had receipted \u2018 in full for. royalty account to January 1, 1904.\u201d That this involved a waiver of any report for that quarter seems too clear for argument. Of what avail would a sworn statement of sales for that quarter have been when the parties had expressly agreed to settle and had settled for all such sales in advance, upon an agreed estimate of what they would be? Could there be, unless by express written instrument, a more definite and effectual waiver of further claims under the contract for that quarter? In fact, however, the request referred to did not purport to ask for a return under oath such as the contract provided for, and apparently was not so intended by appellee nor so regarded at the time by either party.\nWe are unable to concur in the view expressed by the master that it was the duty of appellant \u201cto make a written statement to said company on or prior to January 10, 1904, as to the amount of saw frames manufactured and sold by him for the three months prior to January 1st.\u201d It follows that the decree based on such finding must be deemed erroneous. In view of this conclusion it is not necessary to consider other questions presented in the briefs.\nFor reasons indicated the decree of the Superior Court will be reversed and the cause remanded with directions to dismiss the bill.\nReversed and remanded with directions.", "type": "majority", "author": "Mr. Justice Freeman" } ], "attorneys": [ "Fred D. Jackson and George N. B. Lowes, for appellant.", "Nathan E. Utt and William H. Utt, for appellee." ], "corrections": "", "head_matter": "Hamilton Crary v. Jones & Dommersnas Company.\nGen. No. 13,560.\n1. Rescission-\u2014what not ground for, of contract, of license. A contract licensing the use of a particular patent and providing a royalty cannot be rescinded unless it appears that the terms of such contract have been violated by the licensee.\n2. License\u2014what constitutes waiver of provision of contract of. A provision in a contract providing for the payment of royalties, which requires the submission of sworn statements, is waived by the long-continued acceptance of unsworn statements without objection.\nBill in equity. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1907.\nReversed and remanded.\nOpinion filed December 24, 1907.\nStatement by the Court. Appellee filed a bill in equity, afterward amended, against appellant, seeking to declare a forfeiture of a license to manufacture patent \u201cfret or scroll saws,\u201d upon the ground that appellant had failed to make a sworn report of the number of such saws manufactured and sold by him during the' quarter ending January 1, 1904. The amended bill contained an allegation not found in the original bill, to the effect that appellant was largely indebted to appellee for royalties upon saws manufactured and sold under said license during said quarter.\nDefendant answered admitting that he had not made a sworn report for the period referred to, but averring that a report under oath had been expressly waived by complainant. The answer denied that any royalty was due for that quarter and averred that complainant had agreed with defendant on or about October 4, 1903, upon the amount of royalties to accrue upon sales made by defendant during the quarter preceding January 1, 1904, and defendant had paid complainant in advance the amount of royalties so agreed upon.\nThe contract constituting the license referred to was made between the parties of date December 11, 1901. It licensed defendant to manufacture \u201cfret or scroll saws\u201d under and during the life of patents owned by complainant, and to sell them in the United States and elsewhere. The defendant agreed to make full and true returns to complainant \u201cunder oath upon the tenth days of January, April, July and October in each year, of all sales made by him of saws containing the patented improvements aforesaid,\u201d and to pay \u201cas a royalty fee\u201d six per cent, upon the gross sum collected or received by him on such sales. Upon failure of defendant to make returns or to make the payments of license fees for a period of thirty days after the dates named, complainant might terminate the license ' by serving a written notice to that effect. The contract further provided that on and after one year from date of contract defendant should manufacture and \u2018 \u2018 sell not less than 6,000 cable and ratchet saw frames or pay royalty on that number of frames if he has manufactured and sold less than that amount.\u201d .\nIt appears from the evidence that from date of the contract until about November 12, 1903, defendant transacted business with the complainant company through its then president, one John P. Dommersnas, that in the course of business defendant' had sold goods to complainant during the quarter ending the first-of October, 1903, for which the latter was indebted to defendant in a sum equal to the royalty which would otherwise have been payable, and that on the 1st of October, 1903, there was nothing due from defendant. to complainant. On the 4th of that month\u2014October, 1903\u2014complainant\u2019s president asked defendant to advance the royalty for the next quarter ending January 1, 1904, stating that complainant was in need of the money. The royalty for the preceding quarter had been $34.79 and complainant by its president estimated that the probable sales for the next, quarter would be about the same. It was agreed, therefore, between them that the amount to be paid in advance as royalty for that quarter should be fixed at $35. Complainant by its president thereupon further agreed with defendant that in consideration of the payment of that sum in advance complainant would waive payment of any additional royalty on unsold saws constituting the difference between the number sold and the 6,030 upon which by the terms of the contract defendant would otherwise be required to pay royalty, whether he had manufactured and sold that number or not. Defendant thereupon advanced and paid complainant the $35 agreed upon, in full of royalty for the quarter ending with December, 1903. This payment, together with the $34.79, royalty for the preceding quarter, which had been paid in merchandise purchased by complainant from defendant, a total of $69.79, was receipted for in writing by complainant \u201cin full of royalty account to January 1, 1904. ($69.79).\u201d\nAfterward complainant\u2019s then president Dommersnas sold out Ms interest in the complainant company to one A. James, and resigned as president and treasurer. James succeeded him in those offices. Upon the eighth of December, 1903, the complainant wrote defendant notifying Mm of tMs change and saying, \u201cWe desire a report showing what has been done under your contract with the company up to December 1, 1903. Hereafter until further notice all business will be transacted with the president, Mr. James.\u201d To tMs, defendant replied of date December 10, 1903, \u201cThe only statement we have to make is that the royalty has been paid up to January 1, 1904,\u201d adding that he would be pleased to have Mr. James call, and felt it would be mutually advantageous to become acquainted with each other. Subsequently complainant\u2019s president and secretary did call. Defendant testifies, that he showed them the receipt for royalties to January 1, 1904. TMs was demed before the master by the complainant\u2019s president and secretary. Whether shown to them at that time or not, the secretary testifies that defendant told them the royalties had been paid up to the first of January, 1904, and the president states they did not ask to he shown the receipt. Upon February 13, 1904, complainant by its new president served upon defendant a notice to the effect that the latter had violated the contract and hy reason thereof the company elected to terminate it. Defendant was further notified \u201cnot to hereafter manufacture, sell or in any manner deal in any of the patented devices referred to in said contract.\u201d\nThere is evidence tending to show that after the present suit was brought complainant\u2019s secretary called on defendant and asked him if he would enter into a new contract providing for a larger royalty and for a larger sale per annum if complainant would withdraw its suit. It further appears that in a suit brought by said James against one of complainant\u2019s former stockholders it was decreed that James was owner of six-sixteenths of the patent and that before the present suit was brought said James personally sued defendant for six-sixteenths of the royalties, which suit was still pending when the present suit was begun.\nThe master found that while there was nothing due complainant for royalties on saw frames manufactured for the term covered by the receipt for $69.79 before referred to\u2014that is, up to January 1, 1904,\u2014 defendant nevertheless was not relieved from the necessity of making a written statement on or before January 10, 1904, as to the saw frames manufactured and sold by him for the preceding quarter. The master therefore reported that complainant was entitled to have defendant\u2019s license forefeited and also to have him enjoined from manufacturing the saw frames and devices referred to in the contract. The court entered a decree accordingly, canceling the .license, enjoining defendant and adjudging that he pay the costs. From that decree the defendant appeals.\nFred D. Jackson and George N. B. Lowes, for appellant.\nNathan E. Utt and William H. Utt, for appellee." }, "file_name": "0225-01", "first_page_order": 251, "last_page_order": 258 }