119 Ill. App. 516 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The terms of the contract between the parties set out in the bill are admitted by the answer, with the exception of the provision that in the matter of workmanship the book to be printed was to compare favorably with the text book of Howard A. Kelly, M. D., on Operative Gynecology. Upon this provision of the contract the testimony of appellant is fully corroborated by the testimony of Margaret L. Bowen, who during the time of the preparation of the hook in question was secretary of appellant. We think, therefore, that the preponderance of the evidence on this disputed provision of the contract is with appellant. The contract itself is established by the evidence and is free from doubt.
The evidence in the record, in our opinion, shows clearly that the book in material and workmanship and binding falls far short of being first-class in every respect. The hook is printed on inferior paper, from inferior type, and with a low grade of ink, and the plates are inferior in many respects, and are printed on inferior paper; and that the binding of the book is poor and unsubstantial. The letter press work is of poor grade for book work. The imposition of the printed page is wrong, the margins varying in width and the smaller margins generally appear on the outside of the page when they should he on the inside of the page. The color of the pages varies, some of the pages being black and some light. The type used is evidently old and worn. The hook does not compare favorably with the Kelly book in any of the foregoing particulars.
The breach of the contract by appellee appears to us to be established by the evidence. According to the defendant’s answer, the book was to be printed .and published in first-class form. This was not done. The true intent and meaning of the contract was not carried out by appellee. To .permit appellee to sell the publication to the profession would he to allow him to carry out a wrong upon appellant for which appellant would have no plain and adequate remedy at law. Upon this state of facts it would he inequitable to refuse, in our opinion, the remedy by injunction which equity affords.
It is obvious that a suit at law would be wholly unavailing to appellant. The actual damages which he would suffer, if appellee be permitted to sell and dispose of the book in its present form, would be difficult, if not wholly impossible, to measure.
In Field et al. v. Barling et al., 149 Ill. 556, the court said: “Irreparable injury as used in the law of injunction does not mean that the injury is beyond the possibility of compensation in damages, nor that it is very great; and the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere.”
In Wood on Nuisances it is said: “By irreparable injury is not meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor necessarily great injury or great damages, but that species of injury, whether great or small, that, ought not to be submitted to on the one hand, or inflicted on the other.”
This is quoted with approval in Wahle v. Reinbach, 76 Ill. 326.
It will not do to say that appellant may have compensation in damages if we grant that he could, for, “if it might be done, there would be delay in compensation subjecting the plaintiff (appellant) to discomfort, inconvenience and loss for probably a protracted period. Equity will not permit one to be deprived of his rights in this way by the violation of a contract, but by injunction will interfere to prevent it.” Graves v. Key City Gas Co. (Iowa Supreme Court), 50 N. W. Rep. 283, and in Kerr on Injunctions, Chap. X, it is said: “A court of equity will not suffer men to depart from their agreements at their pleasure, leaving the party with whom they have contracted to the mere chance of damages which a jury may give.”
The decree in this case is nearly as faulty as the publication with which it deals. There is no foundation either in the averments of the bill or in the evidence, for the finding in the decree that the defendant was granted .the exclusive right to publish the treatise in question for a period 'of one year from the day of the first publication of the book. ¡Nor is there any averment or proof upon which to restrain appellee from printing, selling, etc., any more copies of the treatise than the two thousand copies mentioned in the bill. In these respects, at least, the decree goes outside of the record. Counsel who drafted the decree seems to have forgotten that a decree not founded upon averments and proofs cannot stand. For these errors, the decree would have been reversed on appeal, if it had granted to appellant .all the relief asked for in the bill.
In our opinion appellee should have been restrained from selling, giving away, etc., the treatise in question as prayed for in the bill.
For the errors indicated, the decree is reversed and the •cause is remanded with directions to enter a decree according to the prayer of the bill. *
Reversed and remanded, with directions.
Mr. Presiding Justice Baker dissenting.
