Howard v. Lovett

Fellows, J. I do not agree with Mr. Justice Stone in his conclusion in this case. Plaintiff’s name by birth was Joseph Cohen; when only a youngster, he appropriated to himself the name of Joseph B. Howard, one Joseph Howard being somewhat prominent in the theatrical world; later plaintiff, by certain proceedings taken in the courts at Chicago, caused his name to be changed to Joseph Mercedes. Defendant had always been called by her family and friends Mercedes, or an abbreviation thereof, and was so known and called by plaintiff. I am convinced from this record that the performance here involved, and which is only a clever trick by its producers, was gotten up by the joint efforts of plaintiff, defendant, and defendant’s father. I do not place credence in all the testimony of either of the parties, and feel that we should look beyond the oral proofs to documentary evidence, which may be corroborative of the claims asserted. The plaintiff admits that the act is not original with him, or original with the present generation; that he got the idea from a book on magic; that it probably appeared in books before he was bom. Upon his cross-examination a book was submitted to him, — 712 — and on examination of it he admitted that it contained the idea of this trick. He was asked to turn to the fly leaf, and there appeared “J. M. Crane,” who he admitted was the father of defendant. Mr. Crane was a newspaper man on a prominent Chicago paper; had been dead for some time. In view of the fact that plaintiff’s testimony is not consistent with defendant’s, or with itself, I am inclined from this circumstance to give credence to the idea of joint action by these three people in getting up this act. I am not strongly impressed by the testimony of the witness who said that she “was a palmist at one time, and sang,” and who testifies that in 1908, in the winter time, plaintiff called at her house three or four times to get her to work for him in this mind-reading act, and told her that he was going to call the act “Mercedes.” She admits that she could not play the piano, which was an absolute essential to the act, while in an affidavit, sworn to by her and filed with the bill of complaint for the purpose of obtaining a temporary injunction, she fixes the conversation in the year 1909, in the summer time. In this affidavit she gives as the reason she did not enter the employ of plaintiff, not the fact that she could not play the piano, but that they “were unable to agree upon proper terms.” The testimony of another witness, much relied upon by plaintiff, that shortly before Labor Day, 1910, he saw a banner at plaintiff's “Temple of Knowledge” upon which was painted two women, one named “Mercedes” and the other “Vera,” is not of probative force of plaintiff’s claim. It is the'claim of defendant that arrangements had been made some time before that for the production of the act, and, while plaintiff insists he did not know the defendant by any other name than Miss Crane, and did not know her given name, a letter was shown him on cross-examination, which he admits having written, addressing her as “Dear — 713 — Friend Merc.” The letter was written in the spring of 1910, several months before the banner was painted. Under these circumstances, this painted banner is as consistent with defendant’s claim as it is with plaintiff’s. When these parties produced the act, the advertising used and which appears in the record as exhibits, convinces me that the name “Mercedes” was not used as the name of the act, but of the actress. I quote from one of these exhibits: Mr. Joseph B. Howard Offers The Bewildering Sensation of the Hour “MERCEDES” The Psychic Wonder Call Your Name! SHE WILL Read Your Mind! Answer Your Questions! The parties continued together until defendant was forced by plaintiff’s conduct towards her to sever relations with him, when she telegraphed her father for money and returned to Chicago. Thereafter, when defendant appeared on the stage, she appeared under the name of “Mercedes,” although plaintiff claims his attorney prevented her from giving this performance. I cannot reach the conclusion from plaintiff’s advertising matter found in this record that the act was called “Mercedes.” It was the actor, not the act. I quote three of these advertising bills offered by plaintiff to substantiate his claim. The first one at the Lyric Theater: Mr. Joseph B. Howard presents The Bewildering Sensation, of the Hour “MERCEDES” Startling Sensational Mind Reader LA PIANISTE DE MYSTERIE Presenting an Act that Amazed and Mystified the Entire World. — 714 — The second one, at the Garrick Theater, reads: The Season’s Greatest Sensation “MERCEDES” The Psychic Wonder She Will Tell Your Name Read Your Mind — Answer Your Questions. The third one, at Keith’s Theater, in Boston, is as follows: “MERCEDES” Accompanied by the Marvelous Mystic, Mile. Stantone, in Their Unparalleled Occult Revelation THE MUSICAL ENIGMA Mercedes Transfers in Silence by Telepathic Waves to Mile. Stantone Any Musical Selection Suggested by the Audience. MOST EXTRAORDINARY POWER POSSESSED BY MAN. I am convinced that the claim now asserted by plaintiff that “Mercedes” was the name of the act performed by him is an afterthought on his part, and that “Mercedes” was used to designate the performer, instead of the act performed. But there is another feature of this case which I think should work its reversal. It is said that plaintiff has built up a valuable business in giving this performance, which should be protected by a court of equity. I realize that a certain degree of latitude is allowed in praising one’s wares; but there is a limit to all things. The methods used by this plaintiff to establish his reputation and build up his business were not such, to my mind, as appeal to the conscience of a court of equity for relief through that court by the strong arm of a writ of injunction. We may lay aside the fact that the performance sought to be protected is a trick pure and simple, that the so-called “thought transfusion,” “mind reading,” or “psychic wonder,” is simply the carrying out of a carefully devised code, understood alone by the performers; that, while it — 715 — amuses and interests, it at the same-time deceives the public. All these may be laid aside while we examine the methods used by the plaintiff to establish his reputation. I quote from one of his press notices, published after he had appropriated to himself the name “Mercedes”: Mercedes’ Life Story. The life of Mercedes reads like a page from a book of fiction, teems with adventure, and is colored with real romance. Mercedes is, of course, a nom de theatre. It was chosen by the young man, who is mystifying the world with his peculiar demonstrations of telepathy, because it was the name of his mother, a Spanish lady. In reality Mercedes’ name is Joseph Howard. His father, a Scotchman, wedded to a Spaniard, met reverses which necessitated the son seeking employment at a very early age. They lived in Chicago, and young Joe, or Mercedes, as you shall call him hereafter, found work in a factory. It was hard grinding toil and the boy’s only relief — for he had the temperament and soul of an artist — was found at night-time, when he resorted to his room or to the homes of his friends and the companionship of his beloved violin. Near neighbor to him lived Nellie Stantone, whose parents were French. She and Mercedes were playmates from childhood and when the young man played his violin it was Nellie Stantone who thrummed out his accompaniments on the piano. One day while at work in the Chicago factory Mercedes’ third finger on the left hand was caught in a machine and smashed to a pulp. Blood poison set in and the boy’s life was despaired of. For weeks he raved in delirium, but when convalescence came he sought the home of his girl friend, and as he lay, frail and sad, upon a couch, while she sat at the piano, the inspiring notes of his favorite violin solo rang through his thoughts. For weeks in his fever-tortured agony, this last piece he had played upon his violin was constantly with him. Hardly realizing what he was saying on his first day out, he turned to Miss Stantone, and said: “Nellie, I wish you would play that piece for me. It’s haunted me.” — 716 — Years of Very Hard Study. The girl whirled around on her piano stool instantly and began to play Gounod’s “Ave Marie.” Mercedes was startled, for he had not mentioned the name of the selection. They were both children, and, had the boy failed to mention the incident to his father, it probably would have been forgotten, and what is now regarded as a scientific revelation might have been lost to the world. Mercedes’ father was a great reader. He had heard a lot about telepathy and so he insisted that there should be a trial of the boy’s powers. After much practice Mercedes and Miss Stantone brought their experiments to a successful conclusion. Mercedes thought of a selection he wished her to play and she played it without having any communication by word or sign from her violinist friend. This practice was kept up incessantly in spite of opposition from the young woman’s family, for they believed that young Mercedes possessed some evil power over their daughter ana they at length forbade the boy and the girl to meet. They did meet clandestinely, however, and tried out their skill in divers ways. At length the girl’s family discovered these secret meetings, and, to rid of the incubus of the boy’s evil influence, as they termed it, packed up their chattels and removed to Battle Creek, Mich. Mercedes’ father, too, tired of the young man’s persistence and gave him a sound thrashing one day that seems to have been the turning point in Mercedes’ life. He ran away from home, went to Battle Creek, and sold newspapers on the streets for a living. He suffered a serious illness, was taken home, and, upon his recovery, his family being advised to allow him to pursue his bent, he was now unmolested in the pursuit of the secret of telepathy. There were years of study, and finally, three years ago in Chicago, a public performance which made everybody talk of the strange occult influence of this boy over the girl at the piano. Since then Paris and London and the entire continent of Europe have been startled by the strange performances of this boy and girl, and now America is sitting up and taking notice of the strange things they are accomplishing. Admittedly there is not one statement in this entire — 717 — article that is true, or that even approximates the truth. To put our approval upon such methods, by-protecting with a writ of injunction a business built upon such a foundation, would, to my mind, disregard that maxim of equity that is hoary with age — that he who comes into a court of equity must come with clean hands. The writ of injunction is not a writ of right, but its issuance rests in sound judicial- discretion; that discretion should not be moved where the party applying does not bring his case within equitable principles, does not show superior equities that are entitled to protection at the hands of a court of equity, does not make such a case as moves the conscience of the court to grant the relief. I am persuaded that neither of these parties has shown such a clear right to the exclusive use of the name “Mercedes,” in connection with this performance, as would justify this court in enjoining either, as against the other, from continuing to entertain, amuse, and deceive the public by it. I think both the bill and cross-bill should be dismissed, with costs to the defendant. Kuhn, C. J., and Moore, Steere, and Brooke, JJ., concurred with Fellows, J. Ostrander, J., concurred in the result, dismissing the bill.