Ockenholdt v. Frohman , 60 Ill. App. 300 ( 1895 )

Me. Presiding Justice G-aey

delivered the opinion oe THE CoUET.

This writ is prosecuted from a decree enjoining the plaintiff in error perpetually from producing the play called “ Charley’s Aunt,” until the further order of the court. The paragraph of the bill which alleges the right of the defendant in error to the play, is as follows : “ That among his recent purchases was a play which has acquired great popularity in the United States, known under the name of ‘‘ Charley’s Aunt,” and which is advertised by him wherever the same has been produced by the striking and novel picture of a laughing cat; that the complainant acquired the said play and exclusive right to represent the same in the United States and Canada, direct from the author, Brandon Thomas, who sold to him for a large sum, all his right, title and interest therein and to the stage rights thereof, and that the complainant and no other person or persons has any right in and to the same in the United States and Canada.”

Then it avers that the unlicensed, unauthorized and fraudulent representation of the play “ Charley’s Aunt,” is now threatened at a hall in this city, known as Scandia Hall, located on Ohio street, just off Milwaukee avenue.

That the production is advertised as the said play of the said author, Brandon Thomas, and is accompanied upon all advertisements with the picture of the laughing cat, and is advertised under its bill, “ Charley’s Aunt.”

And then charges the plaintiff in error with that wrong-doing.

Aow, a conveyance of one’s “ right, title and interest ” conveys nothing, unless the grantor had some right, title or interest. Frank v. Darst, 14 Ill. 304.

It is conceded that an author, at common law, owns his literary production, but may sell it, or lose his property in it by publication.

In this bill there is no averment, but only a vague phrase which might, in ordinary conversation, import that Brandon Thomas was the author of the play, and there is not, even by recital, any statement of facts that tends to show that at the time of the supposed sale he had any “ right, title and interest ” in the play.

The averment that the defendant in error “ and no other person has any right,” etc., is, no averment of fact, but of a mere conclusion. Positive averments of facts are necessary. High Inj., Sec. 34.

The decree was made upon the bill alone, the plaintiff in error having demurred to it, and when the demurrer was overruled, abiding by it. Two of the assigned causes of demurrer were:

“First. The bill does not aver that the said Brandon Thomas sold the exclusive right to represent said play in the United States and Canada to said complainant. It only avers that he sold all his right, title and interest therein. From all that appears from the bill, all of said author’s right may have been conveyed before that time.

Second. The bill avers that no other person or persons except complainant has any right in and to the said play in the United States and Canada. This is both argumentative and a conclusion.”

We regard these causes as well assigned. If Black v. Henry G. Allen Co., 42 Fed. Rep. 618, is to be read to the contrary, we can not follow it; more especially as there is no direct averment that Thomas was the author of the play.

On the hearing of the demurrer, any good cause going to the substance of the bill, was available to the plaintiff in error. 1 Dan. Chy. 588.

In our judgment the bill is insufficient. The decree is reversed and the cause remanded, with directions to dissolve the injunction.