would make paper bags, and that under such employment the said Taggart had produced such a machine for said company. It was further charged in the complaint of said company that the construction of this machine was a trade secret, and that Taggart had wrongfully divulged such secret to the defendants, amongst whom were the appellants Edmund C. and Herbert E. Westervelt, and that the defendants were wrongfully engaged in making a machine like that made for the plaintiff's company. Injunctive relief was demanded. Upon the trial of the cause the court rendered judgment, which, omitting the parts immaterial here, was as follows:

"It is therefore ordered, adjudged, and decreed by the court that the defendants, Edmund C. Westervelt, Herbert E. Westervelt, John Taggart, Henry F. Young, Harry I. Lahr, Ferdinand A. Buescher, the Buescher Manufacturing Company, and Melvin Huston, their agents, servants, employés and attorneys, be, severally and jointly, perpetually restrained and enjoined from proceeding to make or construct a machine which will fold and paste one end of a paper tube so as to form a bag by means of any devices or inventions substantially as made or devised by the defendant John Taggart, and now used by the plaintiff in a machine now in the plaintiff's factory in Elkhart, Indiana. The said defendants, Edmund C. Westervelt, Herbert E. Westervelt, John Taggart, Henry F. Young, Harry I. Lahr, Ferdinand A. Buescher, the Buescher Manufacturing Company, and Melvin Huston, their agents, servants, employés and attorneys, are also, severally and jointly, perpetually restrained and enjoined from divulging to any other person the principle or principles upon which said machine acts or works, in so far as those principles were the invention or discovery of said John Taggart.

"It is further adjudged and decreed by the court that the defendants, Edmund C. Westervelt, Herbert E. Westervelt, John Taggart, Henry F. Young, Harry I. Lahr, Ferdinand A. Buescher, the Buescher Manufacturing Company, and Melvin Huston, do ¦ immediately deliver up to the sheriff of this county all sketches, draftings, drawings, blue prints and patterns, and all portions or parts thereof, of the plaintiff's said machine; and the sheriff is hereby ordered to bring all of said articles and things, except the frames, immediately into court for further orders.

"It is also considered and adjudged by the

& Supply Company, do have and recover of and from the defendants, Edmund C. Westervelt, Herbert E. Westervelt, John Taggart, Henry F. Young, Harry I. Lahr, Ferdinand A. Buescher, the Buescher Manufacturing Company, and Melvin Huston, the sum of one dollar damages, and all costs and accruing costs, and that it have execution therefor."

Upon appeal to the Supreme Court, this judgment was in all things affirmed. Wester velt г. National Paper & Supply Co., 15: Ind. 673, 57 N. E. 552.

Afterward the National Paper & Supply Company sold all rights which it had ac quired under this judgment to the appellee the National Manufacturing Company. After ward, and on the 19th day of October, 1900 appellee commenced an action, which resulted in the judgment herein appealed from, ir which action the appellants and the Atlas Paper Bag Company were made defendants. In appellee's complaint, after averring facts covering the rendition of the judgment in favor of the National Paper & Supply Company, its transfer to appellee, and its affirmance by the Supreme Court, it is further averred that appellants Edmund C. and Herbert E. Westervelt and John Taggart, shortly af ter the rendition of the judgment enjoining them from so doing, built, or caused to be built, a machine which they caused to be sold to the Elsas Paper Company, of New York City; that they built, or caused to be built, four other machines which they used or procured to be used by the Prairie State Paper Company of Taylorville, Ill.; that the appellants the two Westervelts were interested in the Prairie State Paper Company and in the Atlas Paper Bag Company; that the Prairie State Paper Company made large quantities of paper bags upon said four machines, which bags were by procurement of the said Westervelts sold by said Atlas Paper Bag Company, the said company knowing that the bags were being made in violation of the before-mentioned judgment. It is al

so averred that each of said machines was capable of making, and appellee believes that each machine did make and is still making. an average of two tons, in weight, of paper bags per day. The complaint concludes as follows: "That the profits on said bags were more than $10 per ton, all of which profits this petitioner would have realized if said defendants had not made said bags; that the profits on said machines were $1,000 each, all of which profits the said defendants realized; that this petitioner could have made and sold all the bags so made and sold by the defendants and realized a profit therefrom of $10 or more for each 25,000 bags sold. This petitioner further says that each of the machines so made by the defendants would and did and does fold and paste one end of a paper tube so as to form a bag, by means of devices and inventions substantially 25 made and devised by the defendant John Taggart, and used, at the time the said action was commenced and judgment was rendered, by the National Paper & Supply Company aforesaid in a machine then in its factory at Elkhart, Ind. The premises considered, the petitioner prays that the defendants be punished by a fine of $50,000, to be paid to this petitioner to compensate it for losses sustained, and that the defendants

Edmund C. Westervelt, Herbert E. Westerveit, and John Taggart be imprisoned until said fine shall be paid, and that the court will order the sheriff to seize and sell all the property of the defendant the Atlas Paper Bag Company to make the said fine. And this petitioner prays for all other and proper relief."

Each appellant, except the Atlas Paper Bag Company, which company was never served with notice or appeared to the action in any manner, filed separate answers. All the pleadings were verified, and no question as to their sufficiency is raised by this appeal. The questions presented by appellants arise under the motions for a new trial, and relate solely to the sufficiency of the evidence to sustain the finding and judgment, and the alleged error of the court in admitting and excluding certain evidence upon the trial.

In appellants' brief, counsel contend that the judgment of the trial court should be reversed because: "First. That there is no evidence to show that the machine examined in New York by Brown and Collins was the same machine which we have designated as the Elsas Machine,' and therefore there is no evidence showing that the appellants, or either of them, in any way violated the injunction of the Elkhart circuit court. Second. That even if the appellants, or either of them, have violated their injunction, they are liable to the appellee only for the amount of profit actually realized through the violation of the injunction. Third. That there is no evidence whatever that the appellants, or either of them, realized any profit through the making of the Elsas or Atlas machines. Fourth. That there is no evidence that the appellants, or either of them, realized any profit through the use of the two Atlas machines. Fifth. That there is no evidence showing that the appellee has been damaged either by the making and selling of the Elsas machine, or by the making and using of the Atlas machines, by appellants, or that appellee would have made profits if appellants had not made machines or bags. Sixth. That the court below erred in allowing the appellee to prove, by the testimony of Brown, what profit it had realized by the making of paper bag machines or by the use of paper bag machinery. Seventh. That therefore, for the reason aforesaid, even if it should be held that the appellants had violated the injunction, they are only liable for nominal damages, and the judgment rendered was excessive in amount. Eighth. That the court below erred in rejecting the evidence of E. a Westervelt and Mr. Taggart, tending to show that the machines made by the Atlas Company contained no invention or device made or devised by John Taggart. Ninth. That the court below erred in its construction of the original decree, contempt of which was alleged, by refusing to permit the appellants to prove that the machines made, sold, and used by them did not contain eny

invention of John Taggart. Tenth. That no judgment should have been rendered against Edinund C. Westervelt."

This action must be regarded as a civil action in equity to compel appellants to pay to appellee whatever damage it has sustained, either in loss of business to appellee or profits made by appellants, by reason of the violation of the injunction. Appellee claims no rights under the patent laws of the United States, but bases its claim wholly upon the rights growing out of the injunction. It is the law, as settled and decided in Westervelt v. National Paper Co., etc., supra, and cases therein cited, that injunction will lie to restrain former confidential employés, and others engaged with them, from divulging or using trade secrets or inventions which were devised or invented by such employés in the course of their employment.

We think there is evidence which justified the trial court in finding that appellants made and sold the machine spoken of in the argument and evidence as the "Elsas Machine," and that in so doing they violated the injunction. It is admitted that appellants made and sold the Elsas Paper Company a machine to be used in making satchel bottom paper bags. Two witnesses, Brown and Collins, testified that they visited the factory of the Elsas Paper Company in New York and found in use there, for the purpose of making satchel bottom paper bags, a machine exactly the counterpart of appellee's machine. Appellants testified that the machine sold to the Elsas Paper Company was not like the one devised by Taggart for the National Paper & Supply Company, which machine and the secret of its construction became appellee's property. Appellants testified that the machine sold to the Elsas Paper Company did not contain, when shipped by them, an intervening gear. Witnesses Brown and Collins testified that the Elsas machine examined by them contained, and was operated by means of, an intervening gear. The com| plaint upon which the injunction was granted, and the opinion of the Supreme Court sustaining the judgment of the trial court therein, were admitted in evidence. In the opinion of the Supreme Court we find the following: "It is not alleged that appellee's machine for pasting the bottoms of said paper bags was like those used by other parties; on the contrary, it is expressly averred that 'there are no other machines like it'; nor does the mere fact that appellee's machine performed the same work as the machines referred to raise any presumption that it was the same. It appears from the complaint that said machines cannot be constructed except by the use of information furnished by Taggart in violation of his duty and agreement with appellee. As we have shown, the divulgence and use of such information can be enjoined."

The facts proven certainly raised a strong presumption that the machine described by

Brown and Collins was the one made under the supervision of Taggart and sold by appellants to the Elsas Paper Company, The evidence also shows that appellants had in their possession blue prints from which the Elsas machine was made. These blue prints were not introduced in evidence. Their introduction in evidence would have been conclusive proof upon the question of whether or not the Elsas machine, as constructed and sold by appellants, contained substantially the inventions and devices made by Taggart which were within the operation of the injunction. It is a general rule that, where a party suppresses evidence, the presumption may be indulged that its production would be against the interest of the party suppressing it. City of Warsaw v. Fisher, 24 Ind. App. 46, 55 N. E. 42, and cases there cited. And /although the court in the last-mentioned case, in the opinion of the writer, carried the doctrine beyond the true meaning of the rule, nevertheless both the majority and minority opinions agree upon the rule of law as here stated and applied. If the evidence relating to the intervening gear is not considered, there is sufficient evidence remaining to show that the Elsas machine contained more than 20 other points covered by the injunction, and was substantially the same machine that appellants had been enjoined from making and using. There is also evidence to the effect that a machine like the Elsas maIchine could have been constructed for $500, and that it was sold by appellants for $1,700. The evidence also shows that, under the direction of Mr. Taggart, the Medart Patent Pulley Company of St. Louis, Mo., built in the year 1897 at least three machines for making paper bags; that one of these was sold to the Elsas Paper Company; that all the machines. were the same in construction, except that the Elsas Machine was arranged to make mail bags. These machines were all made for the Atlas Paper Bag Company, of Taylorville, Ill. The Atlas Paper Bag Company was a corporation, with a capital stock of $5,000, organized for the purpose of making paper bags. Of the capital stock the appellant Edmund C. Westervelt was the owner of $4,100, and the remaining $900 was owned by appellant Herbert E. Westervelt, C. L. Hammond, and Frank Brewer. Two of these paper bag machines were used by the Atlas Company from about the 1st of September, 1897, until May 1, 1900. Appellant Herbert E. Westervelt, in May, 1900, having prior to that time purchased the stock held by his brother Edmund, and also the stock owned by Brewer and Hammond, moved the machines to South Bend, and continued to use them up to the time of the trial of the cause. There was evidence produced at the trial, covering all of this time, which tended to prove the number of tons of paper bags made upon these machines, the cost of manufacturing per ton, and the selling price. The profits of appellants, fairly deducible from

this evidence, was in excess of the judgment rendered. There was also evidence to the effect that appellants had damaged appellee by diminishing appellee's sales, and lessening the number of its customers, and diverting the business from appellee to appellants. Under the long-established rule that this court will not weigh the evidence and the appellants' assignment of error does not require us to do so we cannot disturb the verdict.

Objection is made that the witness Brown was permitted to testify concerning the cost of manufacturing paper bags. Evidence had been introduced to prove that appellee's business had suffered by diminished sales. This being true, the evidence objected to by appellants was undoubtedly competent for the purpose of showing that appellee had been damaged by the loss of customers and business in the sale of an article which was being manufactured and sold at a profit. The questions raised upon the evidence at the trial which are properly brought before the court by counsel for appellants are without merit. Available error cannot be predicated upon an offer to prove that is not responsive to the rejected question.

Finally, it is contended that no judgment should have been rendered against Edmund C. Westervelt. In Jewelers' Association v. Rothschild (Sup.) 39 N. Y. Supp. 700, it was held that where certain persons, defendants, had been enjoined from the publication of a directory because the directory contained information taken from plaintiff's directory, the fact that they had transferred their business to a corporation in which they were controlling stockholders was no defense to an action against them for a violation of the injunction. And in the case under consideration it seems to us that the injunction would fall far short of giving the relief and protection intended if the persons against whom it was directed could, by becoming stockholders in a corporation which they control, use the corporation as a shield to protect them from the consequences growing out of its violation of the injunction.

t

1. Burns' Rev. St. 1901, § 2641, provides that if a widow shall remarry, holding real estate in virtue of a previous marriage, and there be a child alive by such previous marriage, the widow may not, during the subsequent marriage, with or without the husband's assent, alienate such real estate, and if, during such subsequent marriage, the widow should die, the real estate shall go to the children by the marriage in virtue of which property came to her. Held, that such children by a former marriage had no ownership of or interest in land attempted to be conveyed by their mother to her then

husband in exchange for other realty, and therefore the children's acceptance, on their mother's death and their majority, of the property received from her husband, and sale thereof, and appropriation of the proceeds, did not constitute a ratification of the transaction, precluding them from recovering their mother's property from the husband.

Appeal from Circuit Court, Wells County; E. C. Vaughn, Judge.

Action by Kelley B. Wood and others against John F. Pond. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. E. Sturgis and Mock & Sons, for appellant. W. H. Eichhorn and Burns & Emshwiller, for appellees.

HENLEY, C. J. Appellees commenced this action by a complaint in two paragraphs, making the appellant and one Thompson Gilbert defendants thereto. The first paragraph was one to quiet title to real estate. The second paragraph asked for a partition of the real estate, alleging that appellees were each the owner in fee simple of an undivided one-fourth thereof, and that Thompson Gilbert, who was made a defendant, was the owner of an undivided one-fourth thereof. It was alleged that the appellant, John F. Pond, was claiming an interest adverse to the interests of appellees, and that his claim was without right and unfounded, and a cloud upon their title. The appellant and the appellees claim title to the real estate in controversy through Susan A. Pond, wife of the appellant. The said Susan A. Pond, now deceased, was formerly the wife of one Gilbert. The appellees and Thompson Gilbert were the children of Susan A. Pond by her marriage with the said Gilbert, and it was through the marriage to said Gilbert that she became the owner of the real estate in controversy; it being the one-third of said Gilbert's estate given her by the law of descent in this state. Afterward, and during her second marriage to the appellant herein, the said Susan conveyed the real estate in controversy to her said second husband in the following manner: She and her husband joined in a conveyance to one George H. Seabold, who immediately conveyed the real estate to appellant. After the conveyance of the real estate to appellant, the said Susan A. Pond died, leaving no children surviving her by her second marriage. At the time of her death she was the owner in fee simple of certain other real estate, which appellant had conveyed to her at the same time that be received the deed for the real estate in controversy. The appellees, as the children of the said Susan, took, under the laws of descent, all of the real estate of which she died seised, because of an antenuptial contract made between appellant and his said wife, Susan, in which it was agreed that neither party should receive or inherit any part of the estate of the other. The defendant Thompson Gilbert was defaulted. Ap

pellant answered the complaint in two paragraphs; the first being an affirmative answer, alleging certain facts on which he based his claim to ownership of the fee simple title to the real estate in controversy. The second paragraph was a general denial. Afterward the appellant filed a third paragraph of answer, alleging the facts fully upon which he based his claim to title. Appellant also filed a cross-complaint against the appellees and Thompson Gilbert, alleging, amongst other facts, that he was the owner of the one-fourth interest of Thompson Gilbert by purchase and deed of conveyance from him. Appellees demurred separately to appellant's first and third paragraphs of answer, and also to appellant's cross-complaint. Thompson Gilbert appeared to the cross-complaint, and filed a disclaimer. Appellant thereupon withdrew his answer in general denial. The separate demurrer of appellees to the first and third paragraphs of appellant's answer and to his cross-complaint were sustained by the court. The appellant refusing to plead further, the court rendered judgment in favor of appellees, as prayed in their complaint.

The only question presented by this appeal arises out of the ruling of the trial court in sustaining appellees' demurrer to appellant's third paragraph of answer. All the other alleged errors are expressly waived by appellant's counsel. The averments of the third paragraph of answer are substantially as follows: That appellant, John F. Pond, and one Susan A. Pond, now deceased, were on the 5th day of August, 1887, husband and wife; that at said date the said Susan was the mother of appellees and Thompson Gilbert by virtue of a former marriage; that on said date the said Susan, through and by virtue of said former marriage, was the owner of certain real estate in Wells county, Ind., and which is the real estate described in appellees' complaint. It is further averred that on said date the appellant was the owner of certain real estate in Wells county, Ind., which is particularly described in the answer, and which it is averred was at said time of the value of $800, and that the land which was owned by the said Susan by virtue of her said first marriage was at that date of the value of $500; that on the 5th day of August aforesaid this appellant and the said Susan exchanged or traded land in the following manner: Appellant conveyed his land to one George H. Seabold, the said Susan joining in said conveyance, and the said Susan conveyed her land to the said Seabold, the appellant joining in the conveyance, and that thereupon Seabold conveyed to his said wife Susan the tract of land so conveyed to him by appellant, and conveyed to appellant the tract of land so conveyed to him by the said Susan; that the tract of land which appellant received contained 13% acres of land, and the tract which the said Susan received contained 40 acres of land, and that the conveyance to appellant of the 13% acres was all

the consideration appellant received for the 40-acre tract of land so conveyed to her as aforesaid; that prior to appellant's marriage to the said Susan they entered into an antenuptial contract in writing, wherein they mutually agreed that each party thereto should not receive or inherit any part of the estate of the other; that on the 8th day of July, 1901, the said Susan died intestate, the owner of the real estate conveyed to her by said appellant as aforesaid, leaving appellees and the said Thompson Gilbert, her children by her first marriage, surviving her, all the said children being over the age of 21 years at the time of her death; that at the time of the said Susan's death the tract of land containing the 13% acres was not worth more than $500, and that the 40-acre tract was worth more than $1,000; that, immediately after the conveyance to the appellant of the 13% acres, he entered into possession and has ever since remained in possession thereof, and has made valuable and lasting improvements thereon; that immediately after the death of their said mother the appellees and Thompson Gilbert entered into possession of the 40-acre tract of land, claiming the same as their own by virtue of inheritance from their mother, with full knowledge of the facts as herein set out, and with full knowledge that the 13%-acre tract of land was the only consideration which appellant had received for said 40-acre tract of land, and that said 40-acre tract was the full consideration which their mother had received for the 13-acre tract of land conveyed to appellant; that on the 4th day of December, 1901, appellees, with full knowledge of all the foregoing facts, sold and conveyed their threefourths interest in the said 40-acre tract to the defendant Gilbert for the sum of $750, which sum was appropriated to their own use, thereby ratifying the sale and conveyance of the said 13-acre tract; that on the 2d day of December, 1901, the defendant Thompson Gilbert agreed with appellees that he would purchase their three-fourths interest in the said 40 acres if the appellant would execute to him his quitclaim deed for said tract of land, and that appellant on said 2d day of December did execute his quitclaim deed to said 40-acre tract, whereupon the said Thompson Gilbert purchased appellees' threefourths interest in said land as aforesaid, the conveyance thereof being made on the 4th day of December, 1901; that the only consideration which appellant received for said quitclaim deed was the 13% acres. Upon the facts as above set forth, appellant contends that appellees are estopped from claiming any interest in the 13-acre tract described in the complaint.

Appellees claim the real estate in controversy by descent from their deceased mother, Susan A. Pond. Section 2641, Burns' Rev. St. 1901. Appellant claims by purchase from said Susan A. Pond. The facts, which are not disputed, make a case of peculiar hard

ship upon appellant, but we do not see how any relief can be granted him in this action. We think the case of Horlacher et al. v. Brafford, 141 Ind. 528, 40 N. E. 1078, decisive of the questions here involved. It was held in the case cited, under facts not materially different from the case at bar, that the appellees would not be estopped from claiming the real estate at the death of the mother, the court saying: "Appellee had no ownership or interest whatever in the land attempted to be sold by his mother at the time she sold it. There was therefore no sale of his property which he could ratify on becoming of age. He afterward did become the owner of the land on the death of his mother, and by descent from her. Had his mother outlived her second husband, she could have disposed of the land by her own deed, and it would never have come into possession of appellee. On her death, however, the land became his sole property, just as if it were then conveyed to him by deed. The case may seem one of peculiar hardship, but the law itself is just and equitable. The fault was in the parties to the quitclaim deed. They proceeded in ignorance or in disregard of the law. If appellee feels that he can conscientiously take the land, having already received from the guardian the proceeds of the sale of her land by his mother, the law, notwithstanding the erroneous sale under the quitclaim deed, will give appellee the land which he here claims."

The answer does not bring appellant within the amendment to section 2641, supra, which became operative May 31, 1879 (Laws 1879, p. 123, c. 44). It is not averred that appellees were of the age of 21 years at the time the conveyance was made, nor that they joined in the conveyance. We find no error.

Judgment affirmed.

CHAPIN v. DU SHANE.

(Appellate Court of Indiana, Division No. 1. Nov. 24, 1903.)

SPECIAL FINDINGS-FAILURE TO FILE-EFFECT SECOND TRIAL SUBMISSION ON FORMER TESTIMONY-WAIVER OF OBJECTIONS.

1. In view of the statute concerning special findings, which requires that the court shall first state the facts in writing, and then the conclusions of law upon them, the failure to file the special findings in the case, or bring them into the record by bill of exceptions or order of court, precludes the consideration on appeal of an exception to the conclusions of law. 2. Where special findings are not filed or brought into the record by bill of exceptions or order of court, they will be treated on appeal as a general finding in favor of the successful party.

3. Where parties stipulate that a second trial before another judge shall be had on the evidence submitted on the former trial alone, on which findings are to be made, it amounts to a waiver of any objections to the admission or exclusion of the evidence.

Appeal from Circuit Court, Elkhart County; John M. Van Fleet, Special Judge.