National Life Insurance Co. of the United States v. Myers , 140 Ill. App. 392 ( 1908 )

Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the agreement set up in the bill wherein appellant, in consideration of the withdrawal of an injunction and dismissal by appellee of a bill of complaint then pending, is said to have agreed not to publish an alleged libel, is void; that “the bill does not properly set up a conspiracy”; that the injunction order is void for uncertainty; and that equity has no jurisdiction to enjoin a libel.

So far as they are well pleaded the averments of the bill, for the purposes of this interlocutory appeal, must be taken as admitted. It is urged, however, by appellant’s counsel that the correctness of some of the statements made in the publications referred to in the bill, and attached to and made a part thereof, are “nowhere denied. ’ ’ The bill alleges in the most emphatic manner that these publications contain false, scandalous and malicious statements and that they were prepared and circulated with the intent “to destroy the good name, reputation, property and business” of appellee; “for the purpose of attempting to levy blackmail,” and for the purpose of “defrauding and injuring” appellee; that the publications contain “divers false, scandalous, malicious and libelous statements concerning your orator, its business, its property and its officers.” A number of paragraphs from said publications are set forth in the bill, the statements of which are specifically charged to be false and to have been published with the intent and for the purpose of injuring appellee in its business. It is averred that by said publications it was intended to create a false impression that appellee’s affairs were under investigation by policy holders and others, that appellee had been guilty of crime and violated the penal laws in the management of its business and assets, that its officers are dishonest, have sworn falsely and have handled appellee’s assets with intent to convert the same to their own use, that appellee is insolvent and has reported fictitious assets, that in four years $1,600,000 of appellee’s assets have been converted to the personal use of officers and directors of appellee, all of which, as well as other like statements, the bill charges, are false and made for the purpose of destroying its business. It is charged that irreparable injury has been done and is being done by these publications for which no adequate remedy exists at law. In view, therefore, of the whole tenor of the averments of the bill, it is difficult to see what bearing the alleged failure to deny a specific statement in somé of these publications has upon the ques-' tion now before us as to the propriety of the interlocutory injunction of which appellant complains.

It is urged that the agreement was void which the bill states appellant entered into, not to publish or circulate thereafter “any false or defamatory written statements or reports about the good name, business, property or stability of” appellee,-in consideration of the delivery by appellee to appellant of certain papers in its possession, the dissolution of an injunction against appellant and the dismissal of the bill of complaint upon which such injunction had issued. The contention seems to be that the consideration of this agreement was to the effect that appellant would “not publish or divulge matters in which the public had an interest,” and that such agreement is void as against public policy; that “a promise not to do what the law prohibits” is an inadequate consideration for such agreement. We are not aware of any rightful or lawful interest the public can have in false or defamatory publications made with intent wrongfully to injure the property and business of anyone. Appellant’s contention seems to be to the effect that the contract referred to, which appellant is charged with having violated, was not and is not a valid subsisting contract, for want of a legal consideration, and therefore a court of equity will not and cannot interfere to restrain its breach. There was, however, other consideration than the agreement by appellant not to publish. Certain papers which appellant evidently deemed of some value were delivered to him as a part of the consideration for the promise. The promise not to publish, apparently therefore, was based on a valuable consideration to appellant. Whether or not, when the evidence is presented, the contract will be deemed one the violation of which should be restrained, is not now the question. We have here a promise based on an apparently valuable consideration. It is said in Pomeroy’s Equitable .Remedies, vol. 1, sec. 270: “Where an agreement stipulates that certain acts shall not be done, an injunction ^preventing the commission of those acts is evidently the only mode of enforcement.” (See also Idem, sec. 292.) The question as to whether the injunction should be “made permanent on that ground alone is not before us.

There are, however, other and unquestionable grounds for the relief prayed for, which are set forth in the bill. Appellant claims that the bill does not properly set up a conspiracy. The argument is that the charge of conspiracy between the two defendants named in the bill is not based upon facts alleged; that, as in cases of fraud, it is not sufficient to charge a conspiracy, but that the acts constituting it must be alleged. No authorities are referred to in support of this contention. A conspiracy may exist before it is carried into execution by the commission of acts in pursuance of the conspiracy. In the present case, however, the bill not only charges a conspiracy, but points out repeated and numerous acts alleged to have been done in pursuance of the conspiracy “to wrongfully, fraudulently and maliciously injure and destroy the good name, reputation, property and business of appellee.”

It is further argued that the injunction order is void for uncertainty, but it suffices to say that appellant’s counsel fails to substantiate the contention, or point out wherein such alleged uncertainty exists. See Hey v. Wilson, 128 Ill. App. 227-229.

It is further argued that equity has no jurisdiction to enjoin a libel and that the real scope of the bill is “to enjoin the publication and circulation of what is claimed to be a libel.” Much space is given by appellant’s counsel to discussion of the liberty of the press and to decisions in various jurisdictions to the effect that a “court of chancery will not restrain the publication of a libel because it is a libel.” Prudential Life Ins. Co. v. Knott, 10 L. R. Ch. App. 142. In the present case it is claimed in behalf of appellee that the injunction in this case does not merely restrain the publication of a libel, as to which there is an adequate remedy at law, but that the fact that the publications complained of are alleged to be libelous is but an incident; that the jurisdiction of equity invoked in the case rests upon other and unquestioned grounds. If a libelous publication is in violation of a valid contract, if it is in pursuance of a wrongful conspiracy to destroy property rights and injure the business of appellee, if the parties issuing the libelous publications are insolvent and no remedy at law exists, if it is inflicting irreparable injury the extent of which cannot be definitely ascertained and for which there is no adequate remedy at law, if the bill shows that not only by publications, but by letters to appellee’s agents and employes, appellant is interfering with appellee’s business, is seeking to cause policy holders to lapse their policies and to cause its business to'be so far ruined as to throw it into the hands of a receiver, and all this wrongfully and with malicious purpose, it is difficult to see why equity should withhold its preventive authority. In Barnes v. Chicago Typographical Union, 232 Ill. 424-429, an injunction was granted, in which, among other things, the said union was restrained “from sending any circular or other communications to customers or other persons who might deal or transact business with said complainants or either of them for the purpose of dissuading such persons from so doing.” The court said: “The union published weekly what was called a directory of union printing offices of Chicago containing the names of offices where the demands of the union were submitted to and a list of offices on strike, in which latter list were published the names of complainants. The purpose of this directory was to induce people not to deal with the complainants and to compel employes to leave their service.” In that case it was urged on the part of the appellants as ground for demurrer that the relief prayed for would deprive the defendants of rights secured to them by article 11, section 4 of the Constitution, which provides that “Every person may freely speak, write and publish on all subjects, being-responsible for the abuse of that liberty.” The injunction was, however, affirmed. In Loewe v. California Federation of Labor, 139 Fed. 71-86, an injunction was granted restraining the publishing or circulating of statements or representations advertising or calling attention of complainant’s customers, merchants, tradesmen or the public to any boycott against complainant and of representations that the product of complainant’s factory was “unfair.” That case is one of those cited in Barnes v. Typographical Union, supra. In Wilson v. Hey, 232 Ill. 389, in which the judgment of the Appellate Court in the same case (supra) is affirmed, the contention was made that it was not unlawful to refuse to deal with appellees nor to notify others of such refusal “and to try to induce them by peaceable means not to patronize appellees.” In those cases the injunctions were sustained. It is doubtless true, as stated in Covell v. Chadwick, 153 Mass. 263, cited by appellant’s counsel, that “so far as the bill alleges libel by the defendant on the plaintiff, unless he can show that they are somewhat more than mere false representations as to the character or reputation of Ms property or as to Ms title thereto, he is not entitled to a remedy by injunction.” In the case at bar the publications are, according to the bill, more than mere libels, and where, as here, the bill distinctly avers essential facts forming the basis of the prayer for relief so as clearly to apprise the appellant of what he has to meet, it is not necessary that it contain the evidence or recite the circumstances in detail which would support its general statement. The present bill is particularly full in tMs respect. It clearly shows an irreparable damage which would not be adequately compensated by action at law. The injunction does not attempt to restrain a mere libel. It restrains wilful, malicious and irreparable injury to appellee’s property rights, for which the bill shows there is no other adequate relief.

Finding no error in the record, the interlocutory order granting the injunction will be affirmed.

Affirmed.