(222 III. 413)

DICK et al. v. RICKER et al. (Supreme Court of Illinois. Oct. 23, 1906.) DEEDS-ESTATES CONVEYED-LIFE ESTATESREMAINDERS.

Conveyancing Act, § 6 (Hurd's Rev. St. 1905, c. 30), provides that, where any person under the common law may become seised of land by conveyance in fee tail, such person, instead of becoming seised in fee tail, shall become seised thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person in whom the estate tail would on the death of the grantee in tail pass according to the course of the common law by virtue of such conveyance. A grantor conveyed certain land to the grantee and to the children. of her body begotten to have and to hold to the use of the grantee during her natural life, and after her death to the use of the children of her body begotten in fee tail forever. The grantee had two children, a son who died in infancy, prior to her death, and a daughter who survived her and died without leaving any children. Held, that such grantee took an estate during her life, and her surviving daughter took the remainder in fee simple.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 360-365.]

Appeal from Adams County Court; Charles B. McCrory, Judge.

Suit by Henry F. J. Ricker, executor of the estate of Mary G. Williams, deceased, against Margaret Dick and others, to sell certain land. From a decree authorizing such sale, certain defendants appeal. Affirmed.

.

This is a proceeding brought by appellee Ricker, as executor of the last will and testament of Mary G. Williams, deceased, to sell certain real estate in Adams county. Whatever title Mary G. Williams had in the premises sought to be sold was derived through a deed dated September 23, 1878, of which the portion bearing on the question in controversy is as follows: "Know all men by these presents, that I, Thomas Redmond, of the city of Quincy, have granted, bargained and sold, and by these presents do bargain, grant, sell, convey and confirm, unto my daughter, Eliza J. Williams, and to the children of her body begotten, the following described lots or tracts of land: [Here describing the property.] To have and to hold the same to the use of the said Eliza Williams for and during the term of her natural life, and after her death to the use of the children of her body begotten, in fee tail forever." At the time of the execution and delivery of this deed by Thomas Redmond Eliza J. Williams was the lawful wife of one John H. Williams, and Mary G. Williams, her daughter, was then five months old and was then the only child alive of her body begotten. Subsequently a son, John Williams, Jr., was born to Eliza J. Williams, but died in his mother's lifetime, still an infant, without children. She died prior to the death of her daughter, Mary G. Williams, leaving no husband and leaving Mary G. Williams as her only heir at law. Mary G. Williams died without ever having any children of her body begotten. The county court found that Mary

G. Williams died seised in fee simple of a full and complete title of the real estate described in this deed and decreed that the same should be sold to pay debts. The cause was thereupon appealed to this court.

Homer M. Swope and Emmons & Emmons, for appellants. Wilson & Wall and Vanderventer & Woods, for appellee Henry F. J. Ricker. T. J. Ceridon, for appellees Mollie Fargo and others.

CARTER, J. (after stating the facts).

we understand the contention of appellants, it is that the deed vested in Eliza J. Williams simply an ordinary life estate, that Mary G. Williams was vested with the title to said real estate as the first holder under the fee tail estate, and, as she died without any children or heirs of her body, the title to said real estate reverted, as one of the incidents of an estate tail upon failure of competent takers, to the grantor, his heirs, or devisees. Appellants claim as heirs of Thomas Redmond. If an estate tail was created by this deed, the word "children," both in the granting and the habendum clauses, must be construed to mean "heirs." The authorities have always held that in order to create this estate words of inheritance as well as words of procreation are necessary. Blackstone says: "As the word 'heirs' is necessary to create a fee, so, in further limitation of the strictness of the foedal donation, the word 'body' or some other words of procreation are necessary to make it a fee tail and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate tail." Sharswood's Blackstone, book 2, p. *115. To the same effect are 1 Washburn on Real Prop. (4th Ed.) *75; Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589; 11 Am. & Eng. Ency. of Law (2d Ed.) p. 372, and cases there cited.

If the word "children" is to be considered a word of purchase, and not of limitation, in the granting clause or premises of this deed, then manifestly it must be construed the same way in the habendum clause. Should these words be taken in their ordinary sense, without reference to the context of the deed, then clearly, if the habendum. clause does not in any way limit or define the estate granted, under section 13 of our statute on conveyancing (Hurd's Rev. St. 1905, c. 30), Eliza J. Williams and Mary G. Williams would take an estate in fee in the property in question, because Mary G. Williams was the only child in esse at the time the deed was delivered, and a grantee must be in existence at the time the deed is executed in order that a present title in possession may pass. Miller v. McAlister, 197 Ill. 72, 64 N. E. 254; Morris v. Caudle, 178 Ill. 9, 52 N. E. 1036, 44 L. R. A. 489, 69 Am. St. Rep. 282. The son, John Williams, Jr., was not born until some time after this deed was

executed. It may be said in passing it appears from the record that his only heirs were his mother, Eliza J. Williams, and his sister, Mary G. Williams, hence the fee-simple title would ultimately have all been in these two, even if he had been in existence at the time of the execution of the deed and had taken thereunder. Should the habendum clause be construed to limit or define the estate conveyed in the granting clause in accordance with the rule laid down in Riggin v. Love, 72 Ill. 553, Welch v. Welch, 183 Ill. 237, 55 N. E. 694, and Sassenberg v. Huseman, 182 Ill. 341, 55 N. E. 346, then, construing the word "children" not to mean "heirs," but in the ordinary sense, without any reference to the context, and considering both the granting and habendum clauses together, it would not create an estate tail, but Eliza J. Williams would have taken the property for and during her natural life and Mary G. Williams would have taken the remainder of the estate. Beacroft v. Strawn, 67 Ill. 28. So that whether the habendum clause be considered repugnant to the granting clause, and therefore rejected, or whether it be construed as limiting and defining the granting clause, if the word "children" be construed not to mean "heirs," and therefore not conveying an estate in tail, the ruling of the county court must be upheld.

The word "children," however, when the context requires it in order to carry out the intent of the testator or grantor, has been construed to mean "heirs." In Sweetapple v. Bindon, 2 Vern. 536 (quoted in 1 Preston on Estates, 409), it was held that where there was a gift by will, to be laid out by the testatrix in lands and settled to the use of the daughter, Mary, and her children, and if she died without issue, then over, "the court must take the will as they found it; that Mary had an estate tail in the lands to be purchased." Lord Hardwicke is quoted as having said in discussing this question in Bagshaw v. Spencer, 2 Atkyns, 577: "There can be no magic or particular force in certain words more than others. Their operation must arise from the sense they carry." Justice Buller, in considering a similar question in Hodgson v. Ambrose, 1 Douglas, 336, said (page 342): "It seems to me to be a false logic to put a different sense upon any words from what, in general, they import to bear, by mere inference from the words themselves, unexplained by any others; though, if other words manifest the intent, I know of no law that says the intent shall not prevail." This court in Strawbridge v. Strawbridge, 220 Ill. 61, 63, 77 N. E. 78, 79, said: "The term 'children' is primarily a word of purchase, and is not to be construed as equivalent to 'heirs' in the absence of other words or circumstances showing it to have been used in that sense; but where there are other words in the will showing that the word 'children' was used in

the sense of 'heirs' the word will be construed as a word of limitation equivalent to 'heirs.'" See, also, 5 Am. & Eng. Ency. of Law (2d Ed.) 1902, and cases there cited. This court has held that the words "heirs," "issue," and "children" may be construed interchangeably when found necessary to effectuate the intention of the testator, and that the words "heirs" and "children" may be used synonymously in the same instrument. Butler v. Huestis, supra; Leiter v. Sheppard, 85 Ill. 242. The grantor, Thomas Redmond, clearly intended to create an estate tail by this deed. Therefore he must have used "children" in the sense of "heirs." It is admitted by all the briefs that, if the that, if the habendum does not limit or define in some way the estate conveyed by the granting clause, then the granting clause, under the common law, would create an estate tail general, which, under section 6 of our statute relating to conveyances (Hurd's Rev. St. 1905, c. 30), would rest in Eliza J. Williams, a life estate, with the remainder in fee to Mary G. Williams.

But appellants contend that the habendum clause defines the estate conveyed and that Eliza J. Williams took simply an ordinary life estate, independently of the entailed estate, and that Mary G. Williams was the first tenant to hold by virtue of the fee-tail estate. They state in their reply brief that they have not been able to find any case in which a deed with similar language has ever been construed before a court of last resort of any of the states. The question may never have been directly before any of the courts of this country (although the case of Ross v. Adams, 28 N. J. Law, 160, is very similar), but some early English decisions on this question may be found construing words substantially the same as those in this deed, and it is evident that a careful consideration of the "old black-letter law" will furnish the true guide to the original nature and incidents of those estates which have been handed down from those times, and particularly of one like fee tail, which, having been practically abolished in our jurisprudence, is only to be found treated as a vital reality in the country and at the period in which it grew and flourished. Taking the construction of the habendum clause most favorable to appellants, then the rule in Shelley's Case may be invoked, with the long line of decisions based thereon, in order to arrive at the proper construction to be given the words in the habendum clause. In Perrin v. Blake, 4 Burr. 2579, which is one of the first decisions giving prominence to the rule laid down in Shelley's Case, a learned sergeant expressed the rule in Shelley's Case to be: "In any instrument, if a freehold be limited to the ancestor for life and the. inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; if it be limited to the heirs of his

body, he takes a fee tail; if to his heirs, a fee simple." This statement of the rule is quoted with approval in Preston on Estates (volume 1, 265), and has been frequently sanctioned by this court. Baker v. Scott, 62 Ill. 86; Butler v. Huestis, supra; Frazer v. Supervisors, 74 Ill. 282. In the report of Perrin v. Blake, supra, it is stated that, in case of "a devise to A. for life and afterwards to the heirs of his body, it was admitted on all hands that A. took an estate tail." The same rule is laid down in Hayes v. Foorde, 2 Blackstone, 698; Colson v. Colson, 2 Atkyns, 246; Bagshaw v. Spencer, supra; King v. Melling, 2 Levinz, *58; Richards v. Bergavenny, 2 Vern. 324; Elton v. Eason, 19 Ves. 73. In these last two cases Preston on Estates (volume 1, 419) states the findings of the courts in the following words: "A devise to A. for life and the heirs of her body, if any, is an intail in A."; and, "devise to A. for life, and after her death to the heir male of her body living at her death, is an estate tail in A." These cases are decisive. If the habendum clause defines the estate granted, then Eliza J. Williams, except for our statute, would be held to be the first taker in a fee-tail estate.

But appellants contend that the words in the deed, "to the use of the said Eliza J. Williams for and during the term of her natural life, and after her death to the use of the children of her body begotten, in fee tail forever," require a different construction than if the word "use" had not been inserted. Coke says: "If an estate be made, either before or since the statute of 27 Henry VIII, c. 10, to a man and the heirs of his body, either to the use of another and his heirs or to the use of himself and his heirs, this limitation of use is utterly void." 1 Coke (Thomas' Ed.) 400. This court has held that a trusteeship cannot be predicated of one who holds for life only and for his or her sole use and benefit. Schaefer v. Schaefer, 141 I. 337, 31 N. E. 136; Thompson v. Adams, 205 Ill. 552, 69 N. E. 1. The words "to the use of" are of no effect; for the equitable estate is merged in the legal estate. The equitable estate and the legal estate are in the same person. 1 Perry on Trusts, § 13. It has been held by this court that the rule in the Shelley Case did not apply to an estate tail in this state, for the reason that our statute had provided to the contrary. Butler v. Huestis, supra; Baker v. Scott, supra. Under section 6 of our act on conveyances, as construed by this court, Eliza J. Williams took under this deed an estate during her life, and her daughter, Mary G. Williams, took the remainder in fee simple. Frazer v. Supervisors, supra; Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505; Kyner v. Boll, 182 III. 171, 54 N. E. 925; Atherton v. Roche, 192 Ill. 252, 61 N. E. 357, 55 L. R. A. 591; Peterson v. Jackson, 196 Ill. 40; Metzen v. Schopp, 202 III. 275, 67 N.

| E. 36. E. 36. The construction contended for by appellants is absolutely inconsistent with the spirit and policy of all American law. It should not be admitted unless the language is so plain that no other construction is possible, and even then the courts should not lay down such a rule unless the great weight of authority absolutely requires it. As we have seen, even in times when the policy of the law was to entail property for generations and thus foster and sustain a privileged class, the contention of appellants would not have been upheld. Much less should it in this day, when the courts have repeatedly held that estates must vest at the earliest period possible, and that public policy requires that the entailment of estates be considered absolutely inconsistent with the genius and teachings of the American people.

The conclusions we have reached on the points heretofore discussed render it unnecessary to consider other points argued in the brief. We think the rulings of the county court were in accordance with the law. The decree of that court will accordingly be affirmed. Decree affirmed.

(222 Ill. 517)

TOOLEN v. CHICAGO TOWEL SUPPLY CO. (Supreme Court of Illinois. Oct. 23, 1906.) WRIT OF ERROR-REVIEW-DECISIONS OF INTERMEDIATE COURT-FINDINGS OF FACT.

Where the Appellate Court reversed a judgment in favor of the plaintiff, without remanding the cause, and found that the defendant was not guilty of the negligence averred in the declaration, this finding was conclusive on the Supreme Court on error to the Appellate Court.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4327-4332.]

Error to Appellate Court, First District. Action by Clarence A. Toolen, administrator of Valentine Powers, deceased, against the Chicago Towel Supply Company. From a judgment of the Appellate Court reversing a judgment in favor of plaintiff, he brings error. Affirmed.

Simeon Armstrong, for plaintiff in error. F. J. Couty, and J. C. M. Clow (H. E. Long, of counsel), for defendant in error.

HAND, J. This was an action on the case commenced in the superior court of Cook county by the plaintiff in error, against the defendant in error, to recover damages for causing the death of Valentine Powers, plaintiff's intestate. The declaration contained two counts, and the general issue was filed. Valentine Powers, at the time he was injured, was seven years and ten months of age. At about 9 o'clock on the morning of May 8, 1902, a servant of defendant was driving a horse hitched to a wagon, upon Blue Island avenue, near its intersection with Harrison and Halsted streets, in the

city of Chicago. As the horse and wagon approached the place where the deceased was standing, near the sidewalk, he suddenly started to run across said intersection, where he collided with the horse and was thrown down, and one of the front wheels of the wagon passed over his body, from the effects of which he died on the following day. A trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,000. The defendant prosecuted an appeal to the Appellate Court for the First District, where the case was assigned to the branch of that court for hearing and determination. The judgment of the superior court was reversed without remanding the cause, and the Appellate Court made and incorporated in its judgment the following finding of fact: "And the court, upon the allegations and proofs in the record in this cause contained, doth find that the defendant (appellant) is not guilty of the negligence averred in the declaration"-and the the plaintiff has brought the cause to this court for further review by writ of error.

It is clear, if the defendant was not guilty of the negligence averred in the declaration, there could be no recovery. It is contended, however, that the evidence fairly tended to sustain the plaintiff's cause of action, and that the Appellate Court erred in its finding of fact, and this court is asked to review the evidence and to disregard the finding of fact made by the Appellate Court on the ground that such finding of fact is not supported by the evidence. This court, in actions of this kind, does not review the facts, and by section 87 of the practice act (Hurd's Rev. St. 1905, c. 110, § 88) the Appellate Court, where it finds the facts different from the trial court, is expressly authorized to make a finding of fact, and, in case such finding is made and incorporated in its judgment, this court can only determine whether the Appellate Court has properly applied the law to the facts as found by it, and the power thus granted to the Appellate Court to find the fact has been so often sustained by this court that it would serve no useful purpose to again review the authorities upon that question, further than to refer to the case of Earnshaw v. Western Stone Co., 200 Ill. 220, on page 221, 65 N. E. on page 661, where the court said: "It is, however, contended that the Appellate Court had no power to reverse said cause without remanding the same for a new trial, and it is insisted that the statute which authorizes the Appellate Court to make a finding of fact and provides that such finding shall be binding upon this court is in conflict with the Constitution of this state and the Constitution of the United .States and is therefore void, and that such finding of fact should not be treated as binding upon this court in its final determination of the case. The method of procedure followed by the Appellate Court in this case is

legal and in accordance with a long line of decisions heretofore made by this court, and is now too firmly established to be challenged or overturned." And the case of Supple v. Agnew, 202 Ill. 351, on page 353, 66 N. E. 1069, on page 1070, where it was said: "That the Appellate Court had the power, under section 87 of the practice act (Hurd's Rev. St. 1905, c. 110, § 88) to reverse the judgment of the superior court without remanding the cause, upon the ground that the weight of the evidence did not authorize the verdict, is too well settled by our former decisions to be longer a matter of controversy. Fitzsimmons v. Cassell, 98 III, 332; Hawk V. Chicago, Burlington & Northern Railroad Co., 147 Ill. 399, 35 N. E. 139, and cases cited; Borg v. Chicago, Rock Island & Pacific Railway Co., 162 Ill. 348, 44 N. E. 722. Nor can it be denied that the finding of facts recited by the Appellate Court in its judgment is conclusive upon this court. In such case we can only determine whether or not the Appellate Court properly applied the law to the facts so found. A few of the cases so holding are Hawk v. Chicago, Burlington & Northern Railroad Co., supra; Hancock v. Singer Manf. Co., 174 Ill. 503, 51 N. E. 820; Davis v. Chicago Edison Co., 195 Ill. 31, 62 N. E. 829; Homersky v. Winkle Terra Cotta Co., 178 Ill. 562, 53 N. E. 346."

It is further urged that the finding of fact as made by the Appellate Court is not binding upon this court, as, it is said, it appears from the opinion of the Appellate Court (a copy of which is found in the abstract) the finding was not concurred in by all the judges of the Appellate Court, as one of the judges of that court dissented. The finding of fact of the Appellate Court is incorporated in the judgment of that court, but not in its opinion, and the writ of error sued out from this court to the Appellate Court brings before this court for review the judgment of the Appellate Court, and not its opinion. If, however, it were conceded that only two of the judges of the Appellate Court concurred in making the finding of fact incorporated in the judgment of that court, still such finding would be the judicial determination of that court and binding upon this court. The Appellate Court for the several districts of this state consists of three judges, a majority of whom control the action of the court, and the action of such majority, when formulated into the form of a judgment, has the same legal effect as though concurred in by all the judges of said court. In Chicago City Raliway Co. v. Mead, 206 Ill. 174, on page 179, 69 N. E. 19, on page 21, it was said: "The determination of the question of law raised in this court cannot be made to depend upon what the Appellate Court said respecting the controverted questions of fact, in the opinion filed in the case. The statute requires the Appellate Court to file an opinion giving the reasons for the decision, but

it is the judgment of the court, and not the opinion, which is reviewed on appeal to this court." And in Crawford v. Burke, 201 Ill. 581, 66 N. E. 833, it was held a judgment of affirmance by the Appellate Court entered because of the disagreement of two of the judges, the third having presided in the trial court, settles all controverted questions of fact the same as in any other case which might come before the Appellate Court for determination. And in Chicago & Eastern Illinois Railroad Co. v. Schmitz, 211 Ill. 446, on page 454, 71 N. E. 1050, on page 1053, in a similar state of case, the court said: "The general rule is that where the judgment of the trial court is in favor of the plaintiff, and the Appellate Court affirms that judgment, all questions of fact are settled so far as this court is concerned; and we know of no exception to that rule, whether the judgment of affirmance entered by the Appellate Court has been entered by a full consideration of the case by all of the judges, or whether it has been entered because of the peculiar state of facts existing here." The finding by the Appellate Court of the facts in a case reviewed by that court is binding upon this court whether the judgment of the lower court is affirmed or reversed. The cases above referred to are in principle like the case at bar, and dispose of the contention made by plaintiff in error adversely to his contention.

The finding of the Appellate Court that the defendant was not guilty of the negligence averred in the declaration being accepted as true, as it must be by this court, the judgment rendered by the Appellate Court necessarily followed, and must therefore be affirmed.

Judgment affirmed.

(222 III. 348.)

STAR BREWERY CO. v. HOUCK. (Supreme Court of Illinois. Oct. 23, 1906.) 1. APPEAL-REVIEW-DIRECTION OF VERDICT. An assignment, that the court erred in refusing to direct a verdict in favor of defendant at the close of plaintiff's evidence and again at the close of all the evidence, cannot be sustained on appeal to the Supreme Court unless there is no evidence in the record fairly tending to support plaintiff's cause of action.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4024.] 2. NEGLIGENCE

CLEAR CHANCE GENCE.

PROXIMATE CAUSE LAST CONTRIBUTORY NEGLI

Where intestate was killed while playing "tag" in a street by being run over by defendant's brewery wagon, defendant was liable, notwithstanding intestate's contributory negligence, if the proximate cause of his injury was the failure of defendant's driver to use ordinary care to avoid injuring intestate after he became, or should have become, aware of his danger.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, § 115.]

3. SAME CONTRIBUTORY NEGLIGENCE-INFANTS.

In determining whether deceased, 10 years and 10 months of age, was guilty of contribu

tory negligence, it was proper for the jury to consider his age, intelligence, experience, and ability to understand and apprehend danger and to care for himself.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 116, 121-129.] 4. MUNICIPAL CORPORATIONS-USE OF STREET AS HIGHWAY-ACTIONS FOR INJURY FROM NEGLIGENCE-ISSUES AND PROOF.

In an action for wrongful death of plaintiff's intestate, by being run over by a brewery wagon, one of the counts of the declaration charged that the team was driven at a high rate of speed, in excess of that allowed by the city ordinance and another that defendant, by its servant, drove the team in a willful and heedless manner, while another count alleged that defendant, by its servant, drove the team in a careless and negligent manner. Witnesses testified, some that the team was being driven at a "lope," some said a "gallop," others a "fast trot," and still others a "pretty fast trot." The driver himself testified that he was going at about six miles per hour, and it also appeared that, while some distance from deceased, and in plain view of the place where he was run over, the driver applied the whip or lines to the team, and caused them to increase their speed. Held, that a city ordinance, limiting the speed of teams to six miles per hour, and providing that no person should willfully or heedlessly drive any animal so that the same or any vehicle attached thereto should come into collision with any other animal or vehicle or strike any person, under penalty, etc., was admissible.

5. SAME-GAMES IN STREETS-GAMES-ORDI

NANCES.

The playing of a game of "tag" in a public street did not constitute a violation of an ordinance forbidding persons to engage in games, sports, or amusements in the streets or on the sidewalks which would frighten horses or interfere with any teams, vehicles, or persons passing along the streets or sidewalks.

6. SAME-VIOLATION OF ORDINANCE-PROXIMATE CAUSE OF INJURY.

Where intestate was killed by defendant's negligence while intestate was engaged in a game of "tag" in a city street, it was no defense to defendant's liability that deceased was violating a city ordinance prohibiting sports or amusements in the streets, unless deceased's violation of the ordinance was the proximate and efficient cause of the injury.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1517.] 7. EVIDENCE-EXPERT TESTIMONY.

In an action for death of plaintiff's intestate, by being run over and killed by a beer wagon, driven along a paved street, expert evidence was inadmissible to show that the wagon and team traveling over the paved street would make such a noise that if deceased had been standing still he would have heard it.

8. MASTER AND SERVANT-INJURIES TO THIRD PERSONS-NEGLIGENCE OF SERVANT-IN

STRUCTIONS.

In an action for death of plaintiff's intestate, by being run over by defendant's beer wagon, in charge of a servant, an instruction that, unless the evidence showed that the negligence of the driver was such as would permit plaintiff to recover from him for the injuries caused by his negligence, plaintiff could not recover from defendant was properly refused.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1209, 12261229.]

9. TRIAL-INSTRUCTIONS-MODIFICATION.

Defendant, a brewery corporation, requested an instruction that the jury should consider the case as if it was between two private citizens, instead of one in which defendant was a brewery company, that brewery corporations