author: Mr. Justice Holdom

text:
    Helen A. Lee, Appellee, v. Glendora S. Bermingham, Individually and as Administratrix of the Estate of Thomas C. Bermingham, Deceased, Appellant.
    Gen. No. 21,823.
    1. Equity, § 379*—what is effect of verdict in chancery proceeding. A verdict in a chancery proceeding is merely advisory to the chancellor.
    2. Specific performance—when construction of contract of adoption for chancellor. In a chancery proceeding to enforce an agreement to adopt a child and that she shall inherit the foster parents’ property, the evidence having established such agreement, its construction, legal purport and effect are matters of law for the determination of the chancellor.
    3. Equity—how failure to file replication within statutory limit waived. A party by participating in a trial in equity after his motion to strike from the record a replication as not having been filed within the statutory time is denied, waives such objection.
    4. Equity—when motion to strike replication not filed within statutory time addressed to discretion of chancellor. In a chancery proceeding a motion to strike from the record a replication not filed within the statutory time is addressed to the sound discretion of the chancellor.
    5. Equity—when discretion of chancellor in denying 'motion to strike replication not filed within statutory limit not abused. Denial of motion to strike from record a replication not filed within the statutory time, held not an abuse of the chancellor’s discretion.

      6. Specific performance, § 72

      —who are necessary parties to action for enforcement of contract of adoption and for distributive share in estate. In a proceeding by a foster child for distribution of her share of the property of her intestate foster father under a contract of adoption, the father having died leaving personal property only, and no descendants, his widow, individually and as administratrix and the adopted child are the only necessary parties.
    7. Frauds, statute of, § Í18*—when waived by failure to plead. In equity a party to avail himself of the benefit of the Statute of Frauds must specially insist on it, and his failure to do so will be decreed a waiver.
    8. Specific performance, § 92*—when modification of instruction on degree of proof as to contract of adoption proper. An instruction that a foster child must, in a suit for specific performance of a contract of adoption for distribution of property against the administratrix of her deceased foster parent, prove the contract of adoption relied upon by direct and positive evidence, held properly refused, and an instruction that such contract need be proved only by the preponderance of the evidence, held properly given.
    9. Adoption—what are rights of wife marrying subsequent to mahing of contract of adoption. Where, subsequent to receiving into his home a child whom he has agreed to adopt, the foster parent marries, his wife’s rights in his property are subject to the contract of adoption irrespective of whether she agreed to be bound thereby or not.
    10. Adoption, § 3*—when contract of construed as giving rights of child by marriage. Contract of adoption construed as giving the foster child all the rights a legally adopted or child lawfully begotten in marriage would have had.
    11. Adoption, § 3*—what constitutes sufficient consideration■ for contract of. It is a sufficient consideration to make a contract of adoption binding that the foster child left her parents and resided with her foster parents in accordance with the terms of the contract.
    12. Specific performance, § 91*—when evidence sufficient to establish oral contract of adoption and to warrant specific performance thereof. Evidence examined and held sufficient to establish an oral contract of adoption, conferring on the foster child all the rights of a child begotten in lawful wedlock and to justify a decree for specific performance.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March

      term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed May 29, 1916.
    Gtterih & Barrett, for appellant.
    Edgar L. Masters, John Cashmah and Mayer, Meyer, Austrian & Platt, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

Much matter irrelevant to the controversy between the parties is injected into this record. It is of no consequence whether defendant resorted to ruse or wiles peculiar to her sex in inducing Thomas C. Bermingham to marry her, or what were her habits or those of Bermingham either before or after wedlock. The facts remain that they were married, that they were competent to contract a marriage when they did so, and that defendant is the widow of Thomas C. Bermingham. We shall therefore disregard these many irrelevant and, in some respects, scandalous matters, which have been projected into the record, and confine our decision to the questions and the points necessarily involved to construe the agreement set forth in complainant’s bill and sought to be enforced by the decree rendered in the trial court.

Thomas C. Bermingham was twice married. He had issue by neither marriage and died intestate and without leaving descendants of his body. His kin, aside from complainant, are collateral. He'made two wills before his marriage, neither of which could survive that event. An antenuptial contract resting in parol is averred. It was not proven and will therefore be disregarded in this opinion.

It appears that Thomas C. Bermingham, whose widow defendant is, had a twin sister, Anna Bermingham, who was the second wife of Edward Tully. This sister had one child, the complainant in the bill before us. Tully had children by a former marriage, but they are in no way involved in this proceeding, directly or incidentally.

The agreement sought to be enforced was verbally made, and if enforceable, is one of adoption. The property involved in the controversy is personal.

The mother of complainant died on August 12, 1900. While on her death bed she expressed anxiety regarding the future of her daughter “Nellie,” the complainant. At a family conference, at which were present Thomas C. Bermingham, his first wife, Belle Bermingham, Edward Tully, the father of complainant, and Mrs. Lillian M. Larson, a daughter of Edward Tully by his first wife, and while all of these persons were around the death bed of complainant’s mother, Anna Bermingham Tully, it was agreed in substance as follows : That Anna Tully and Edward Tully, her husband, the parents of complainant, then and there promised and agreed with the Berminghams that in consideration of the said Anna and Edward Tully surrendering to Thomas C. Bermingham and Belle Bermingham, his wife, the care, custody and control of and complete dominion over complainant, who was then about the age of ten years, until she arrived at lawful age or should be married, the said Thomas and Belle would take and receive complainant into their home, make her their own child and a member of their own family, adopting her according to law, and care for, maintain and educate her and treat her in every way as they would a child born to them of their own marriage. The Berminghams also agreed that at their death complainant should have, take and become the sole and absolute owner of all the property owned by them.

This is the agreement averred in the bill, the parties to which and the witnesses, save complainant and her half sister, Mrs. Lillian M. Larson, died before the death of Thomas C. Bermingham. This agreement was made in the presence of complainant, then an infant. Soon after the death of complainant’s mother, in pursuance of the agreement between the parents of complainant and Thomas C. and Belle Bermingham, complainant’s father surrendered her to the Berminghams and gave them absolute control and dominion over her, and did never thereafter interfere with such control or demand any right of control over complainant. From the time of such surrender until the death of Belle Bermingham and thereafter until complainant’s marriage, which was a considerable time after she attained her majority, she remained and continued in the family of the Berminghams, and was treated and cared for by them as their own child. Complainant on her part was devoted to the Berminghams and cared for them in sickness as well as in health, giving to her foster parents all the devotion and duty due from a natural child to its parents.

Defendant in her answer admitted that the mother of complainant, Anna Tally, was a twin sister of Thomas C. Bermingham; that she was married to the father of complainant and that complainant was the fruit of such marriage; that the Berminghams had no natural child; that during the life of Belle Bermingham complainant was taken into the home of the Berminghams, cared for and treated by them as well as if she had been their own child; and that Belle Bermingham died on the 5th of January, 1912.

The answer denied the remaining allegations of the bill. Defendant was married to Thomas C. Bermingham March 28,1914, and he died on May 20,1914, about six weeks after the marriage.

The agreement to adopt complainant set out in the bill was sustained by the testimony of Lillian M. Larson, the only surviving witness to it, except complainant, who, being disqualified from testifying under the statutes of this State, was not proffered as a witness. Many witnesses, uncontradicted and unimpeached, testified to many conversations with the Berminghams, and particularly with Thomas C. Bermingham, regarding statements made by them in affirmance of the agreement set out in the bill, and no witness testified, directly or by inference, to the effect that either of the Berminghams denied the existence of such an agreement. The jury found the issues in favor of the agreement in all its terms, and the further fact that the Berminghams complied with their part of it by receiving complainant into their family and exercising complete control over her. These facts appear from the answers of the jury to five issues of fact propounded to them by the court, and with the finding of the jury on these issues of fact the learned chancellor before whom the cause was tried has evidenced his concurrence by refusing to grant a new trial and in entering the decree found in the record. The verdict is not like one at law; it is simply advisory to the chancellor.

The evidence is voluminous, and to repeat or discuss it at length would serve no useful purpose. An examination of all the pertinent evidence found in the record constrains us to be in accord with the jury’s finding that the agreement of adoption was made, carried out and executed in accord with its terms as alleged in the bill. The agreement having been established by the evidence, its construction, legal purport and effect were matters of law for the determination of the chancellor. The construction of the agreement by the chancellor was, we think, erroneous in the respects which we shall hereafter indicate. Before proceeding to do so, however, we will dispose of certain objections made by defendant affecting procedure.

We do not regard as unethical or as infringing in any way the rights of defendant the challenged remarks of complainant’s counsel to the jury.

Defendant gave notice of the filing of her answer. Complainant’s replication thereto was not filed until after the statutory time. Upon the trial defendant moved to strike the replication from the record, which the chancellor .refused to do. Defendant thereafter participated in the trial to its conclusion without further objection or other motion. By so proceeding the objection was waived. Moreover, the motion to strike was addressed to the sound discretion of the chancellor. We are unable to discover that the action of the chancellor in denying such motion was an abuse of judicial discretion.

The rulings of the court on the admission and rejection of evidence are without reversible error.

The objection to the want of necessary parties is without force. The parties interested in the contract, the subject-matter of the suit, were complainant and defendant. No other persons had any rights in the subject-matter of that contract. If the contract failed, the property of Bermingham being personal and Bermingham dying intestate and without descendants, the defendant, as his widow, would take all of the personal estate, subject to payment of debts and costs and expense of administration under the statute of descent. If complainant sustained the contract, then she and the defendant are the only persons entitled to a share in the property. McClure v. Otrich, 118 Ill. 320.

While the Statute of Frauds is invoked in the answer of defendant, it is not pleaded. In Tarleton v. Veites, 6 Ill. 470, the court say:

“It is a settled principle in equity that a party to avail himself of the benefit of the Statute of Frauds must specially insist on it. If he fails thus to rely on it, he will be deemed to have waived and renounced tlie advantage to be derived from its provisions.” Whiton v. Whiton, 179 Ill. 32.

At the time the agreement in question was made, the father of complainant was in failing health, and later died. He made application for letters of guardianship of complainant in Winnebago county, Illinois, and thereafter applied for an order to sell real estate in which complainant was interested. While in fact complainant was residing with the Berminghams in Cook county at this time, her father stated in the papers filed, that her residence was in Winnebago county, and the court so found. No action, however, of her father in this or any other proceeding is binding upon her. Neither does it tend to prove any fact dehors her interest or right.

We fail to find any error in the court’s instructions to the jury. It was not error to refuse to instruct the jury that complainant was required to prove the contract alleged “by direct and positive evidence” and in substituting therefor that the contract must be proven by a preponderance of the evidence. Proof of the agreement by a preponderance of the evidence satisfied legal requirement. This is elementary.

Much stress is laid upon the alleged fact that defendant intermarried with Thomas C. Bermingham with a knowledge of the agreement regarding complainant’s adoption, that she was agreeable to it and agreed to be bound by it, and also agreed that she would not assert any rights in her husband’s estate in derogation of such agreement. We think it immaterial to the rights of complainant whether defendant agreed to the agreement or not. If the agreement bound Bermingham, it is patent that defendant’s rights in his estate, whatever they might be, were subject to it.

We do not think it was the intention of the parties to the agreement that all of the estate and property of Thomas C. Bermingham and his wife, Belle Bermingham, should vest in and go to complainant upon the death of either of them. The language of the agreement will not permit of such a construction. What - the Berminghams did by this agreement was to agree to make complainant their child, with all the rights which she would have in their estate if she were legally adopted or was a child begotten of their marriage. What was to be accorded to complainant was the rights of a natural child of the Berminghams—no more and no less.

It does not appear that Belle Bermingham had any separate ■ estate at the time of her death. If her husband had predeceased her and the agreement is to be literally construed as the chancellor did construe it, then complainant would have taken all of the property of her foster father to the exclusion of her foster mother, leaving the latter without property or support of any kind.

The Berminghams were by their agreement to make complainant their own child and a member of their own family, care for, maintain and educate her as such, the same as though she were a child born to them of their marriage, and she should at their respective deaths have, take and become sole and absolute owner of all the property owned by each. This must be limited by construction to mean that complainant would take of the estate of her foster parents, had they died intestate, to the same extent as she would had she been born as the fruit of their marriage, and no more; that is, she would take the share of a natural child under the statutes of descent of this State, and not otherwise.

If the agreement was binding it bound the parties at the time it was made. Can it therefore be said that if before the death of Belle Bermingham a child had been born to her and her husband, this agreement would have deprived such child of any share in its parents’ estates? Such a condition would result if the decree of the chancellor can be maintained in its entirety. It is self-evident that such a result would be unconscionable and inequitable. Complainant’s rights under the agreement were those of a natural child. This is undoubtedly what the parties meant and had in mind at the time the agreement was entered into. This is our interpretation of the language proven to have constituted the agreement.

In further illustration of this contention we will suppose that Thomas C. Bermingham predeceased his wife Belle. In such event she, as his widow, would have been vested, upon her husband’s death, with one-third of the personalty of which he might die seized, together with the right to a widow’s award under the statute, assuming he died intestate. Being so vested and lacking any heir, if at Bermingham’s death complainant had survived her and Bermingham, complainant would have been entitled to all of the estate of which Belle Bermingham might have been seized and possessed at the time of her death; and at the death of Thomas C. Bermingham, if he had died without having again married and without child or children by any subsequent marriage, complainant would have been entitled to and become vested with the whole of the estate and property which he might own at his death. Such interpretation gives effect to the provision that complainant should have, take and become sole and absolute owner of all the property owned by the Berminghams at their death. There is nothing in the agreement which either by word or construction would justify a court of equity in holding that if Thomas C. Bermingham again married after the death of his wife Belle and the wife of his second marriage survived him she should be deprived of all claim and interest in and to the property of which he might die seized. We therefore construe the agreement under which complainant claims as vesting her with the property interest which she would have taken were she the natural child of Thomas G. and Belle Bermingham at the death of Thomas C. Bermingham, and that she is consequently entitled under the agreement to be vested with that share of Thomas O. Bermingham’s estate which would be distributable to her were she his only heir at law, subject only to the rights of defendant as his widow.

On the question of sufficiency of consideration to support the agreement of the Berminghams and Tullys for the benefit of complainant, there are many cases holding in effect that the elements found in the instant case constitute a sufficient consideration to uphold and make enforceable the agreement. We will rest content with quoting from Roberts v. Roberts, 223 Fed. 775, as being in many of its essential particulars akin to the case at bar and possessing many circumstances similar to those environing the parties in this case. The court say, quoting from Lynn v. Hockaday, 162 Mo. 111:

“The life of that whole family in reference to this child, from the time she was first taken into it until the death of Mr. Lynn, would have to be construed to be a deception and a fraud, if we would give to it the effect that respondents claim for it. It is argued that her relatives' were poor, and that she has had in'the family of Mr. Lynn a better home and more refined rearing than she would have had if he had not taken her. That may be; but it does not follow as a legal conclusion that the reward was all on her side, or even that it was her gain at all. That she took the place of an only daughter' in the lives of Mr. and Mrs. Lynn, and performed her part as such, is the cold fact which the law regards as sufficient consideration to support the contract. How much she added to their happiness the law does not undertake to estimate. # * * Like a bud that has been cut from its natural stem and grafted into a foreign tree, she grew into the family and became a part of its very life. Everything that adoption contemplates was accomplished. It became a contract fully performed on her part, and the Statute of Frauds cannot be invoked to her injury.”

Complainant filled the void in the Bermingham home occasioned by the lack of children and became a daughter in the truest sense to her foster parents. They were proud of her and she was devoted to them. She made their lives happy and their home a place of sunshine by her devotion and care of them, which continued until the death of Belle Bermingham and after her death and until complainant’s marriage. Even after that event she continued to be a part of the household of Thomas C. Bermingham, and was just as kind, considerate and careful of him and his comforts as she had theretofore been of both himself and his wife. The court further said in Roberts v. Roberts, supra:

“The argument by which we are asked to reverse the decree is that there was no direct and clear evidence of an agreement to adopt at the time Myra ■ J. Roberts was received into the family of Charles J. Roberts. There is good reason why such evidence is wanting. All of the parties to the transaction are dead, and Myra J. Roberts was herself a babe at the time of adoption. It seems to us that in such a case it is not necessary that the court first have direct proof of the making of the contract, and then proceed forward from the contract thus established to the conduct evidencing its existence. We think it is possible to reverse that process, and if the statements and conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from, that evidence.”

The foregoing dictum, is equally applicable to the case of complainant, but her case is stronger than that of the adopted child in the Roberts case supra. In the Roberts case all the witnesses to the original agreement were dead. In complainant’s case her half sister, Lillian N. Larson, who heard the agreement made at the death bed of Anna Tully, survived and testified in court to what that agreement was. Gladville v. McDole, 247 Ill. 34. As said in Grantham v. Gossett, 182 Mo. 653:

“Oral contracts of the kind stated in the petition, when proven according to the standard of proof required, and shown to have been performed on the part of the parent and that of the child, when to suffer it to go, unenforced would be to suffer a fraud to be perpetrated, will be decreed to be specifically performed.”

The agreement in controversy in this case is an oral agreement. It has been proven according to the standard of proof which the law requires and is shown to have been performed in its several parts by all the parties to it; it would therefore be suffering a fraud to now refuse to decree that it be specifically performed.

The decree of the Superior Court is reversed and the cause is remanded with directions to the Superior Court to enter a decree in the terms of the decree appealed from, varying the same to conform to the views herein expressed, and ordering in that decree that the complainant and defendant are the sole and absolute owners of all the property left by Thomas C. Bermingham, deceased, subject to the payment of the debts, widow’s award and the costs and expenses of the administration of his estate; that the defendant, as administratrix of the estate of Thomas C. Bermingham, deceased, and in due course of its administration, turn over and surrender and deliver to the said complainant two-thirds of the said property left by said deceased, whether the same be money, notes, corporate stock, bonds, or other evidence of indebtedness, and also all other personal property left by said deceased; that said defendant retain one-third thereof as her own individual property as widow of said Thomas C. Bermingham, deceased; that the property aforesaid, in the proportions aforesaid, be delivered to complainant and retained by defendant as aforesaid after the payment to defendant of such widow’s award, as may be allowed by the Probate Court of Cook county, where the estate of Thomas C. Bermingham is in process of administration, and subject to all debts proven against the said estate and the costs and expenses of its administration; that said defendant pay and deliver to complainant and retain for herself all the estate of said Thomas C. Bermingham, deceased, in manner as herein directed, in the due course of administration of the estate of said deceased in the Probate Court of Cook county. The costs here and in the Superior Court are ordered to be taxed against complainant and defendant in equal portions.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Ben F. Barnett, Appellee, v. Caldwell Furniture Company, Appellant.
    Gen. No. 21,884.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Rehearing denied June 13, 1916.
    Statement of the Case.
    Action by Ben F. Barnett, plaintiff, against Caldwell Furniture Company, a corporation, defendant, for damages for breach of a contract of employment. From a judgment for plaintiff upon trial by the court, defendant appeals.
    The controversy in this cause arose under a written contract of employment, whereby the defendant employed plaintiff as its salesman with the exclusive right to sell its product in certain portions of the United States from July 1, 1912, to June 30, 1914. Plaintiff undertook to sell $100,000 gross of defendant’s output each year of the contract, and as compensation was to receive six per cent, commission on the net price of all goods sold by himself or otherwise within the territory given him by the contract. Such commission was subject to be varied under stated conditions, commissions to be calculated upon orders accepted and filled by shipment. Plaintiff agreed to exert himself to the best of his ability in making sales, but did not agree not to take on other lines of work or to devote all of his time in and about the sale of defendant’s furniture, etc. Plaintiff also claimed that defendant sold within his territory $36,520.80 in value of its goods without his consent, and that he was discharged by defendant from its employment without any just or reasonable cause about April 24, 1913, and sought to recover damages for defendant’s so breaching the contract. Defendant contended that it did not discharge plaintiff, that he resigned his position and refused thereafter to serve defendant, although requested so to do, and that plaintiff did not perform his contract.
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —when findings of trial court not disturbed. Where in a case tried hy the court without a jury there is an irreconcilable conflict in the testimony, a court of review will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the judgment.
    2. Contracts, § 66*—-when amount of recovery for breach of contract of employment may not be diminished by subsequent earnings. In an action by a salesman for breach of a contract whereby the plaintiff was to receive certain commissions on goods sold within a specific territory, though he was not bound to devote his time exclusively to such sales, the fact that the plaintiff made more money after the breach than before cannot affect the recovery nor can it be diminished by the amount of such earnings.

      Defendant assigned error and argued: That plaintiff did not comply with the contract on his part; that the relationship between the parties was ended by mutual agreement; and that it did not appear that the plaintiff sustained any damages.
    Morse Ives and H. E. Wyhekoop, for appellant.
    Leo S. LeBosky and William Levies, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

3. Damages, § 66*—what recoverable for breach of contract of employment. In an action by a salesman for breach of a contract whereby he was to receive certain commissions on sales within a specified territory, his damages for wrongful discharge held properly estimated on the basis of his average earnings for the four months preceding such discharge.

4. Damages, § 61*—when loss of future profits recoverable. That damages, resulting from loss of future profits under a contract because of its breach, are uncertain is not ground for denying recovery for such breach.


text:
    Charles D. Babcock, Administrator of the Estate of Margaret Ann Babcock, Appellant, v. John V. Farwell, Francis C. Farwell and Arthur L. Farwell, Executors of the Estate of John V. Farwell, Deceased, et al., Appellees.
    Gen. No. 21,956.
    1. Costs, § 6

      —how taxable. Costs are taxed against the losing party unless some good, sufficient and equitable reason exists for apportioning them.
    2. Costs, § 4*—when discretion of court in taxing costs not interfered with. In the absence of abuse of discretion of the trial court in deciding which party should pay the costs, its judgment will not be interfered with on appeal.
    3. Costs, § 19*—when not apportioned. Where charges of fraud, upon which an action is based, are unwarranted and baseless, costs necessarily incurred in refuting them will not be apportioned between the unsuccessful plaintiff and the defendant.
    4. Costs, § 2*—when party advancing costs entitled to taxation thereof in his favor. A party who has advanced to officers engaged in a suit costs due and taxable in their favor is entitled to be reimbursed for such advances as costs due him in the cause.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baxdwin, Judge, presiding. Heard in this court at the October term, 1915.
    Petition for certiorari dismissed.
    Affirmed.
    Opinion filed May 29, 1916.
    Kraus, Holden & Lawless, for appellant.
    M. Paul Noyes and Horace Kent Tenney, for appellees.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

When this cause was before this court on a writ of error, the decision of which is reported in 189 Ill. App. 279, it was ordered that the decree of the Circuit Court be reversed and the cause «remanded to the Circuit Court with directions to that court to dismiss the bill for want of equity.

In obedience to this mandate the Circuit Court dismissed complainant’s bill for want of equity at complainant’s costs and settled the amount of the costs in that decree. This appeal presents for the consideration of the court only thé question whether the court in the exercise of the discretion reposed in it by law abused such discretion in directing that complainant pay all the costs of the cause.

For a statement of the facts involved and the nature of the litigation between the parties in the case at bar, we refer to Babcock v. Farwell, supra, a preceding case between the same parties reported in 146 Ill. App. 307, and the same case on further appeal in 245 Ill. 14. An earlier case, in a foreign jurisdiction, involving substantially the same contention, is Farwell v. Babcock, 27 Tex. Civ. App. 162.

Complainant impugned the conduct and actions of all the parties in these several cases and charged fraud in fact as well as fraud in law. These charges involved the dead and the living alike and were persisted in for years, but none of them was ever sustained. The findings and rulings of the courts in the several jurisdictions where the cases were brought were uniformly against complainant, all the charges of fraud preferred failed, and in the instant case complainant did not seek a review of the rulings of the chancellor touching the averments of fraud in the bill.

Complainant injected into the case a phase with which he was not concerned, viz., an accounting between the company defendant and the so-called syndicate. In the teeth of the fact that appropriate litigation between the company and the syndicate was pending in the Federal Court sitting in the City of Chicago, complainant insisted on the taking in the case at bar of the account involved in the Federal Court suit between the company and the syndicate. A large part of the costs involved in this appeal was contracted in an attempt to state such an account before the master. At the instance of complainant depositions were taken both in. Texas and in London, England, and the defendants were thereby put to large expense and much inconvenience. Complainant cannot now be heard in his contention that he proceeded in the honest belief that he had legal right to do so. In the condition of this record he is presumed to have proceeded at his peril, with the knowledge that he was without legal right in so proceeding, as this court decided in 189 Ill. App. 279. He cannot now escape the consequences of his mistaken insistence. It was the action of complainant which caused defendants to proceed with the accounting, and their judgment in not suspending action during the pendency in this court of the writ of error, which challenged the action of the chancellor in allowing an accounting on the insistence of complainant, is not now open to challenge or attack by complainant.

It is well settled that costs are taxed against the losing party unless some good, sufficient and equitable reason exists for apportioning them; and unless it can be said that the court abused a sound discretion which the law reposes in it in deciding which of the parties shall be compelled to pay the costs, a court of review will not interfere with the trial court’s judgment.

The charges of fraud against which defendants were compelled to defend themselves were unwarranted and baseless, and it would therefore be inequitable to compel them to pay any part of the costs necessarily incurred in refuting such charges. In making such proof defendants did not act upon their own volition, but by compulsion of complainant. We think the observations in 11 Cyc. 35, are peculiarly pertinent to this case, viz.:

“The general rule that costs follow the result of the suit will not be departed from where the conduct of the losing party has been the chief cause of a large accumulation of costs.”

We think the rule stated in Daniel’s Chancery PL & Pr. (6th Am. Ed.) 1399, is also in point:

“As the court will not tolerate fraud in any form, so will it discountenance a groundless allegation of fraud in a bill or other pleading; and upon this principle it is that the rule has been established that where the bill claims on the ground of fraud, an order of dismission shall be with costs; and a party introducing unfounded charges of fraud will be made to pay the costs occasioned thereby, though he may be successful in the suit, or the other party may have acted in such manner as to give reasonable grounds of suspicion; and for the application of this principle, it is not necessary that the word ‘fraud’ should be made use of; a substantial imputation of it is sufficient.” Fisher v. Boody, 1 Curt. 206.

While the amount of the master’s fee, the stenographer’s fees, and the fee of the guardian ad litem is questioned, there is no evidence in the record on the part of the complainant as to the amount which in his judgment should have been fixed, and we are unable to discover that the amount fixed violates any rule of law. Taking into consideration the extent and nature of the services necessarily rendered by the guardian ad litem, we are of the opinion that the amount allowed him is reasonable. Counsel for complainant in their reply brief argue: “To repeat and insinuate that wanton and reckless charges of fraud were made the basis of a ‘wholly unfounded’ and ‘unrighteous’ action, and that complainant was reckless in proceeding, together with the defendants, to offer evidence in this action on the merits, while all parties to the Federal Court suit left it absolutely dormant, is plainly unfair. ’ ’

To their conclusion of unfairness we are not prepared to accord our assent. Nor do we yield our assent to the following argument: “Charges of bad faith, consciousness or even suspicion that there was not ample authority to support the course of the complainant are most strongly resented as gratuitously and disingenuously insulting.”

However, we can regard as more pertinent and réasonable, all the facts of the case considered, the argument of counsel for The Capitol Freehold Land and Investment Company, Limited, that “when this court considers, as it rightfully should and as the chancellor below undoubtedly did, the many thousands of dollars of expense caused the Company by the complainant in the past seven years of this unrighteous litigation, for the fees and traveling expenses, both in this country and in England, of its solicitors, unfortunately not taxable under our practice in cases of this character, and for the fees and expenses of witnesses including two who came here from England, the aggregate of $691.27 taxed as the Company’s costs herein represents but a pitiably small return for the annoyance and expense to which it has been so wrongfully subjected.”

We also feel that the observation of the court in Donham v. Joyce, 257 Ill. 112, that “when a litigant thus piles up costs in a fruitless effort to defend that which is indefensible, and for no apparent reason other than the luxury of a lawsuit, it is no hardship to require him to pay the expenses of his diversion,” is peculiarly appropriate to the situation disclosed by the record.

Counsel for complainant urged upon this court in argument in their initial brief, without warrant and contrary to the record, that the stenographer’s fees could not be taxed as costs because the master had failed to certify, as required by statute, to the necessity of such stenographer’s services. They also failed to abstract the master’s certificate certifying to the necessity of such stenographer’s services. Counsel for defendants, however, suggested a diminution of the record in this regard and procured leave of court to supply the omission. It then appeared, contrary to the representations of counsel for complainant, that the master had made the statutory certificate. Thereupon counsel for complainant filed an amendment to their brief by withdrawing therefrom these words:

“But the Master does not certify that a stenographer ‘was necessarily employed,’ nor was there any reason for including ‘as a part of such Master’s fees a reasonable allowance not to exceed fifteen cents per hundred words where the Master shall certify that a stenographer was necessarily employed, and shall attach to his report a certified copy of the testimony taken by such stenographer. ’ * * *

‘ ‘ The Master does not, as shown, state that he necessarily employed a reporter. He makes no such certificate as the statute allows.”

The attempt following this withdrawal to escape the effect of the master’s certificate we think lame and impotent.

Costs as such are taxed between the parties. It seems to us a novel attitude for complainant to assume, on the theory that the claim for costs had been satisfied, that because costs have been advanced and paid by the parties to the several officers to whom the costs were due, therefore there should be no order that complainant reimburse defendants for the costs so advanced. The costs decreed are costs in the cause, and while due primarily to the officers in whose favor the costs might in the first instance be taxed, still such costs, when advanced by .the parties, are properly taxable as such, and the parties advancing the same are entitled to be reimbursed for such advances as costs due them in the cause.

The judgment of the Circuit Court appealed from being without error is affirmed,

Affirmed.


text:
    M. H. Vestal Company, a corporation, Defendant in Error, v. John R. Robertson, Plaintiff in Error.
    Gen. No. 22,053.
    1. Municipal Court of Chicago, § 13

      —when plaintiff relying on statute in statement of claim hound thereby. Where a plaintiff in his statement of claim predicates his right to recover upon a statute, his right to recover is limited to such statute.
    2. Limitation of actions, § 20*—when action must be brought to enforce individual liability of representative of pretended corporation. Section 18 of chapter 32, Hurd’s Rev. St. (J. & A. If 2435), making one contracting in the name of a pretended corporation individually liable for the obligation incurred, is penal, and an action based thereon must be brought within two years of accrual of right of action as provided by section 14 of chapter 83 (J. & A. If 7209).
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed May 29, 1916.

      Ashcraft & Ashcraft, for plaintiff in error; Edwin M. Ashcraft and Charles F. Rathbun, of counsel.
    Earnhardt & Stafford, for defendant in error; Edward H. S. Martin, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

On December 10, 1914, this action was commenced, in which plaintiff seeks to recover of defendant $92.52 for an indebtedness contracted between February 15, 1911, and May 6, 1911. It is claimed that defendant in ordering certain printing pretended and assumed to be an officer and director of a pretended stock corporation named “Chicago Real Estate Show Company,” which assumed to exercise corporate powers, without having complied with chapter 32 of the Revised Statutes (J. & A. 2418 et seq.), in that it had not filed or caused to be filed in the recorder’s office of Cook county a certificate from the Secretary of State of the complete organization of the Chicago Real Estate Show Company. Plaintiff in its statement of claim stated that the amount claimed was “due to the plaintiff from the defendant by reason of the statute in such case made and provided. ”

Defendant, by the second paragraph of this affidavit of meritorious defense, stated that “the cause of action mentioned in plaintiff’s statement of claim did not accrue within two years next preceding the starting of this suit, and the causes of action mentioned in the statement of claim are barred by limitation as by statute provided.” Plaintiff moved to strike that paragraph from the affidavit of defense and the motion was allowed and the paragraph stricken. On a trial before the court there was a finding and judgment for $72.50, and defendant brings the cause to this court for review.

We are mainly concerned with the challenge of defendant as to the correctness of the ruling of the trial judge in eliminating the defense of the limitation statute. If section 18 of chapter 32, Eev. St., title “Corporations” (J. & A. If 2435), is penal, then section 14, chapter 83, title “Limitations” (J. & A. ft 7209), which provides.that actions “for a statutory penalty” shall be commenced within two years after the cause of action accrued, is a complete defense. If section 18, supra, is not penal, then section 14 of the Limitation Act is not invocable as a defense. Plaintiff has predicated in its statement of claim its right to recover upon section 18 of the statute, supra, and to that statute its right to recover is consequently limited. Had plaintiff’s statement of claim proceeded upon the theory of its right to recover by force of the common law, the questions argued by plaintiff would be in point. Section 18 (J. & A. 2435) supra, reads:

“If any person or persons being, or pretending to be, an officer or agent or board of directors of any stock corporation or pretended stock corporation, shall assume to exercise corporate powers, or use the name of any such corporation or pretended corporation, without complying with the provisions of this act, before all stock named in the articles of incorporation shall be subscribed in good faith, then they shall be jointly and severally liable for all debts and liabilities made by them, and contracted in the name of such corporation or pretended corporation.”

Loverin v. McLaughlin, 161 Ill. 417, was an action involving the liability of directors and officers under section 18, supra, for debts contracted by them in the name of the corporation before the Secretary of State’s certificate of complete organization had been filed and recorded in the recorder’s office, as provided in section 4 of the same act. That same question is involved in the instant case. In many of its features Loverin v. McLaughlin, supra, is analogous to the case at bar. Most of the questions in the Loverin case are present here, except that the limitation statute was not involved. It was contended in the Loverin case that the action in which the liability was sought to be enforced under section 18, supra, should have been brought in equity, and in disposing of this contention the court said:

“The present action is properly brought as an action at law, as the remedy under section 18 is at law and not in equity. The object of the statute is to inflict a punishment for its violation. It is therefore penal in its character.”

In Hale’s Private Corporations, 162, the author says:

“But since section 18 is interpreted as penal, the two year statute of limitations applies to all actions based upon it. * * *”

In Bell v. Farwell, 176 Ill. 489, the court adopted the language in Potter’s Dwarris on Statutes, where the text writer says:

“A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions or for doing a thing prohibited. It is the effect—not the form— of the statute that is to be considered, and when its object is clearly to inflict a punishment on a party for violating it,—i. e., doing what is prohibited or failing to do what is commanded to be done,—it is penal in its character.” Diversey v. Smith, 103 Ill. 378; Gridley v. Barnes, 103 Ill. 211.

We therefore hold that the remedy invoked by plaintiff is restricted to that provided by section 18, ch. 32, supra; that that section is penal in its nature and essence; that section 14, ch. 83, limiting the commencing of such actions within two years after they accrue, is invocable as a defense in bar of the action; and that the trial court erred in striking paragraph 2 from defendant’s affidavit of merits, thereby depriving defendant of the benefit of the limitation defense there set up. As it appears from the statement of claim that the Two-Tear-Statute of Limitations had run against the claim before the commencement of this action, the judgment of the Muncipal Court is reversed but the cause is not remanded.

Reversed without remanding.


author: Mr. Presiding Justice Gridley

text:
    A. H. Whitsett and R. C. Whitsett, copartners, trading as R. C. Whitsett Coal & Mining Company, Appellees, v. Chicago Washed Coal Company, Appellant.
    Gen. No. 21,299.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county;, the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here.
    Opinion originally filed June 1, 1916.
    Rehearing allowed and opinion filed June 16, 1916.
    Statement of the Case.
    Action in assumpsit by A. H. Whitsett and B. C. Whitsett, copartners, trading as B. C. Whitsett Coal & Mining Company, plaintiffs, against Chicago Washed Coal Company, defendant, to recover for certain coal sold and delivered. From a judgment for plaintiffs, defendant appeals.
    The declaration consists of the common counts. In plaintiffs’ affidavit of claim, subscribed by B. C. Whit-sett, it was stated, in substance, that certain Illinois Mine Bun coal (number of pounds specified) was sold and delivered to defendant on January 4, 6, 7 and 8, 1910, and 52,100 pounds of Indiana Mine Bun coal on January 8, 1910; that the fair market price of the Illinois coal at the time and place of delivery was $1.15 per ton, and of the Indiana coal $2.55 per ton; and that “there is due to the plaintiffs from the defendant, after allowing to it all just credits, deductions, and set-offs, $348.19 for said shipments of coal, and interest at 5% to date, amounting to $85.55, making a total amount due of $433.74.” On January 12, 1915, the defendant filed a plea of the general issue and also a plea of set-off. In the latter plea it was alleged that “plaintiffs were before and at the time of the commencement of this suit, and still are, indebted to it, the defendant, in the sum of $10,023.35 for damages sustained by it.” It was then alleged that on December 24, Í909, plaintiffs made a written proposal to defendant, which proposal was on the same day accepted in writing by defendant. Said proposal was set out in haec verba in the plea, which was to the effect that plaintiffs offered to furnish defendant “from December 28, 1909, to March 30, 1910,” two specified grades of coal from a mine at Ward, Illinois, “50 tons per day” of one grade, and “100 tons per day” of the other grade, at certain named prices, “f. o. b. mines,” and that mine weights were to govern settlements, which settlements were “to be made on or before the 10th day of each month for all shipments made during the preceding month.” It was further alleged in said plea, in substance, that the claim mentioned in plaintiffs’ declaration grew out of said proposal and acceptance; that on January 18, 1910, plaintiffs refused to further carry out said agreement and so notified defendant; that notwithstanding the defendant was at all times willing and able to perform its part of said agreement, plaintiffs would not and did not make any further deliveries of coal under said agreement and refused to deliver the remainder of the coal, to wit, 13,229 tons; and that by reason thereof defendant had sustained damages in said sum of $10,023.35, which sum exceeded the damages sustained by the plaintiffs by reason of the nonperformance by the defendant of the several supposed promises in said declaration mentioned, and out of which sum defendant was ready and willing and hereby offered to set off and allow to the plaintiff the full amount of plaintiffs’ damages, if any. With said pleas there was also filed an affidavit of merits, subscribed by an agent of defendant, in which it was stated that the nature of the defendant’s defense was as in the last plea above stated and set forth. i
    On January 19, 1915, the defendant filed a verified petition praying that the venue of the suit be changed to the Municipal Court of Chicago. It was alleged in the petition that defendant “instituted suit” (it was not stated when) in said Municipal Court to recover damages of plaintiffs in said sum of $10,023.35 by reason of the breach of said agreement and that said suit was still pending; that the present suit in the County Court was brought by plaintiffs to recover the “value of the unpaid portion of the coal delivered” under said agreement; that defendant had filed said plea of set-off; that the amount involved in the “controversy” exceeded $1,000, and that the County Court could not render judgment in favor of defendant for the amount claimed by it; and that, therefore, the present suit had been commenced in the wrong court. On January 30, 1915, a hearing was had on said petition to transfer said cause to said Municipal Court, and the same was denied and defendant excepted.
    On February 3, 1915, plaintiffs filed a demurrer to said plea of set-off, stating as a cause of demurrer that defendant claimed a sum of money in excess of the jurisdiction of the court. On February 6, 1915, on the several motions of plaintiffs, after due notice to defendant and after hearing arguments of the respective counsel, the court struck from the files the defendant’s said plea of set-off, also defendant’s affidavit of merits, and also defendant’s plea of general issue for want of the support of a sufficient affidavit of merits, to all of which actions of the court the defendant excepted. It did not appear that defendant offered to file any further or additional affidavit of merits. Thereupon the court entered judgment against the defendant for the sum of $433.74, and defendant excepted and prayed and perfected this appeal.
    Abstract of the Decision.
    1. Courts, § 100

      —when jurisdiction of County Court not defeated by set-off claiming sum in excess of jurisdiction. A County Court has jurisdiction of an action where the amount claimed is less than $1,000, and this jurisdiction cannot be defeated by the filing of a set-off claiming a sum greatly in excess of $1,000.
    2. Pleading, § 367*—when plea of set-off claiming sum in excess of court’s jurisdiction properly stricken from files. A plea of set-off in an action in the County Court is properly stricken from the files where it claims a sum beyond the court’s jurisdiction.
    3. Pleading, § 367*—when affidavit of merits properly stricken from files. An affidavit of merits is properly stricken from the files which states that the nature of defendant’s defense to plaintiffs’ claim is as stated in its plea of set-off, and such plea does not set forth any defense to plaintiffs’ claim but rather a cross-claim or action against plaintiffs of which the court has no jurisdiction.
    4. Judgment, § 108*—when plea of general issue may be stricken from files and judgment entered for plaintiff on affidavit of claim. Where defendant’s affidavit of merits is stricken from the files as insufficient and he does not offer to file any further affidavit of merits, defendant’s plea of the general issue may be stricken from the files and judgment entered for plaintiffs in the amount claimed to be due in his affidavit of claim.
    5. Interest, § 19*—when not recoverable. Interest is not recoverable on unliquidated demands.
    George C. Otto, for appellant.
    Pomeroy & Martin, for appellees.

      See Illinois Notes Digest, Vola» XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Henry S. Whitcomb, trading as Henry S. Whitcomb & Company, Defendant in Error, v. Edgar F. Seney and Roland T. Rogers, trading as Seney, Rogers & Company, Plaintiffs in Error.
    Gen. No. 21,260.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Henry S. Whitcomb, trading as Henry S. Whitcomb & Company, plaintiff, against Edgar F. Seney and Boland T. Rogers, trading as Seney, Rogers & Company, defendants, to recover for goods sold and delivered. To reverse a judgment for plaintiff, defendants prosecute a writ of error.
    In this case there was a directed verdict for the plaintiff who sold to William E. Spencer a certain number of ranges, stoves and refrigerators for installation in an apartment building, to help erect which defendants had loaned Spencer money. Work on the same having stopped, defendants (primarily to secure their loan) entered into a written agreement with Spencer to complete the buildings “free from mechanics’ liens and save William E. Spencer harmless from all claims for material and labor,” and took over the title to the real estate in the name of a third party.
    Adams, Crews, Bobb & Wescott, for plaintiffs in error.
    Baker & Holder, for defendant in error; Gr. Raymond Collins, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Building and construction contracts, § 16 —when construed as for "benefit of third persons. A written contract entered into by the defendants primarily to secure their loan to a building contractor, whereby they agreed to complete a building under construction “free from mechanics’ liens and save the contractor harmless from all claims for material and labor,” construed to be one for the benefit of a third party who had furnished material and labor for the building, and entitling him to sue thereunder.

2. Contracts, § 347*—when subcontractor may sue on contract. Where a manufacturer’s agent has bought from his principal and paid for goods which he subsequently sells to a building contractor with whom the defendant has entered into a contract to complete the building in the process of construction free from mechanics’ liens and save the contractor harmless from all claims for material and labor, such agent can bring suit in his own name against the defendant on such contract.


text:
    Ernest Wasmuth, Appellee, v. Frank Lloyd Wright, Appellant.
    Gen. No. 21,336.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.' Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Ernest Wasmuth, plaintiff, against Frank Lloyd Wright, defendant, on a promissory note. From a judgment for plaintiff, defendant appeals.
    In this case judgment was entered by default for plaintiff after the court had stricken defendant’s affidavit of merits from the files and he had failed to file another within the time allowed.

      The only question argued and presented was whether such affidavit showed a legal defense.
    Plaintiff’s original statement of claim rested on a promissory note dated August 28, 1913, and an account. Defendant’s original affidavit of merits set up a defense to part of the account, and admitted execution and delivery of the note, but claimed it was given pursuant to the terms of certain agreements entered into between the parties hereto in 1909 and 1911 respectively, which provided that the title to certain personal property should remain in defendant. It further alleged that plaintiff had failed to deliver said property to defendant, and that therefore the consideration for the notes had partly failed, and would fail entirely unless plaintiff delivered such property to defendant.
    Thereupon plaintiff filed an amended statement of claim which in effect stated a cause of action on the note alone. But it unnecessarily set forth the consideration of the note. To that end it alleged that the parties had entered into two settlement" agreements whereby they had adjusted disputes that had arisen between theih over the agreements of 1909 and 1911, alluded to in defendant’s affidavit of merits, and that said note was one of several executed and delivered pursuant to the settlement agreements.
    To the amended claim defendant filed another affidavit of merits, setting up, in substance, the same defense as in the original affidavit of merits, and stating that said settlement agreements adjusted only such matters as were then in dispute and that no dispute had then arisen as to the title to said personal property, and that “it.was understood” that defendant’s said property would be returned to him, and that defendant did not discover that such property had not been returned to him until after the execution of the • settlement agreements, believing however that it had been. The affidavit then set up grounds by way of excuse for his failure to make such discovery, and claimed a total failure of consideration for the notes, but offered to pay the balance due on said note upon the return of said property to him.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim in action on promissory note sufficient. In an action on a promissory note, it is unnecessary to set forth the consideration therefor in the statement of claim.
    2. Municipal Court of Chicago, § 13*—when statement of claim sets up cause of action on note only. A statement of claim setting up a promissory note given the plaintiff by the defendant and alleging that the parties had entered into settlement agreements whereby they had adjusted disputes arising out of certain prior agreements and that the note was one of several executed and delivered pursuant to the settlement agreements, held to state a cause of action based on the note only.
    3. Municipal Court of Chicago, § 13*—when affidavit of merits does not state legal defense to action on promissory note. To a statement of claim, based on a promissory note given the plaintiff by the defendant, alleging that the consideration for such note was the adjustment by settlement agreements of disputes growing out of prior agreements, an affidavit of merits admitting the execution and delivery of the note but claiming that the settlement agreements adjusted only such matters as were then in dispute, that no dispute had then arisen as to title to certain personal property which “it was understood” would be returned to the defendant, that he did not discover that such property had not been returned to him until after the execution of the settlement agreements but believed that it had been, setting up grounds by way of excuse for failure to make such discovery, claiming a total failure of consideration and offering to pay the balance due on said note upon the return of the property, held, not to state a legal defense.

      Sherman M. Booth, for appellant.
    Elbert C. Ferguson, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, j-jume topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

4. Wobds and phbaseS'—what is justice. Justice, as administered by the courts, is not something separate and apart from the legal or equitable principles on which it rests.


text:
    Minnie Hoffman, Administratrix of the Estate of Jacob Hoffman, Deceased, Appellee, v. Knisely Brothers, Appellant.
    Gen. No. 21,359.
    1. Workmen’s Compensation Act, § 11

      —when death of employee is accident arising out of and in course of employment. Where an employee, on leaving a building after quitting work there for the day, is killed by falling down a stairway therein, the accident is one arising out of and in the course of employment within the meaning of the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seg.), entitling his administratrix to compensation therefor.
    2. Workmen’s Compensation Act, § 3*—when employer subject to. Employer becomes subject to the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seg.), without any affirmative act on his part in the absence of an election not to be bound thereby.
    3. Workmen’s Compensation Act, § 4*—when employee within act. Employee becomes subject to Workmen’s Compensation Act (J. & A. If 5449 et seg.), without any affirmative act on his part in absence of election not to be bound thereby.
    4. Workmen’s Compensation Act, § 12*—when fact that employee not under matter of defense. In a proceeding for compensation under the Workmen’s Compensation Act of 1911 (J. & A. jf 5449 et seg.), that the employee is not bound by such act, is a matter of defense.
    5. Workmen’s Compensation Act, § 12*—when evidence sufficient to sustain award. In a proceeding for compensation for death under the Workmen’s Compensation Act of 1911 (J. & A. 5449 et seg.), evidence held to make out a prima facie case for an award and to support the inference that the deceased lost his balance from walking over loose blocks of wood on a stairway.

      Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 1, 1916.
    Zim:merman, Myers & Garrett, for appellant.
    Daniel L. Madden and Bichard J. Finn, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This was a proceeding to recover compensation under the so-called Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.), for the death of Jacob Hoffman, an employee of appellant. On appeal from an award of the arbitrators to the Circuit Court, the matter was heard de novo before that court without a jury, and at the close of plaintiff’s case the defendant moved for a finding in its favor. The motion was overruled, whereupon the defendant rested, and the court entered a finding for plaintiff and a judgment for $3,500 to be paid in instalments, as provided under said act. From such judgment this appeal was taken.

The evidence fairly tended t'o show these facts: Hoffman had been working for appellant about nine years. He was paid on the basis of hours’ work. On the day of the accident he was employed by appellant in sheet metal work on the roof of a building in the course of construction. The stairway used for getting up and down in the building had no railing on one side of it and was covered with small wooden blocks and other material from the carpentering. Hoffman worked up to the noon hour when he left the building for lunch. On returning therefrom he said to his foreman, in substance, that as there was not enough work for all the men on the job for the rest of the day he would go to the shop, and if there was no work there he would go home. Thereupon his helper took his tools and he proceeded to descend the stairway. When part way down it he was seen to slip or trip and fall headlong over its open side to the floor. From the injury received he died the same day.

Appellant’s main contention is that such a state of facts does not present a cáse where the injury was one “arising out of and in the course of employment.” (Hurd’s Rev. St. 1911, p. 1136 [J. & A. fí 5449].) In that we do not concur. The leaving of the premises where he was employed was so closely connected with his employment as to render it a necessary incident thereof. As said in Terlecki v. Strauss, 85 N. J. L. 454 (4 N. C. C. A. 584): “It is a necessary implication of the contract that the workman shall come to his work and shall leave with reasonable speed when the work is over. ’ ’ In that case the employee suffered an accident while combing her hair in preparation to go home. The court said that while the employment was not the proximate cause of the accident “it was a cause in the sense that, but for the employment, the accident would not have happened,” and held that the accident arose out of and in the course of the employment. It further said that it would be too narrow a construction to limit the benefit of the statute to the time the workman is actually employed. There can be little, doubt that on authority the relation of master and servant could be deemed to have existed while the workman was getting out of the building where he had to go in his employment.

But cases have arisen under a similar law on analogous facts where the principle of construction stated in the Terlecki case, supra, has found application. (Donovan’s case, 217 Mass. 76 [4 N. C. C. A. 549]; Sundine’s case, 218 Mass. 1 [5 N. C. C. A. 616]; Rayner v. Sligh Furniture Co., 180 Mich. 168 [4 N. C. C. A. 851].) A like construction has been given to these words in English cases, cited in the foregoing cases. We do not deem it necessary to enlarge upon the discussion of this subject, the principle applicable here being so tersely and clearly stated in the Terlecki case, supra.

That defendant was bound by the act is not questioned but it is contended that there was no proof that the employee had elected to be bound thereby. As said in Dietz v. Big Muddy Coal Co., 263 Ill. 486 (5 N. C. C. A. 424), the employer and employee became subject to the act “without any affirmative action on their part. The elective feature of the act is to be exercised to avoid being governed thereby, and not to cause the act to be applied in any given case.” If the employee was not bound it was a matter of defense, defendant practically admitting it was bound by the act.

It is also contended by appellant that the proof is as consistent with nonliability as liability. The contention is based on the testimony of one witness that the deceased was not steady on his legs, his eyesight was bad, and he was subject to dizzy spells. Taking the evidence as a whole we think it makes a prima facie case and supports the inference that he lost his balance from walking over the loose blocks on the stairway. We think the judgment should be affirmed.

Affirmed.


text:
    Carterville Mining Company, Plaintiff in Error, v. Harold Eldridge, trading as Eldridge Coal Company, Defendant in Error.
    Gen. No. 21,468.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Carterville Mining Company, a corporation, plaintiff, against Harold Eldridge, trading as Eldridge Coal Company, defendant, to recover balance due for goods sold and delivered to the defendant. To reverse a judgment for defendant, plaintiff prosecutes a writ of error.
    The plaintiff declared on the common counts. Defendant pleaded a set-off, claiming damages for an alleged breach of contract by plaintiff to furnish defendant coal in accordance with said contract, providing: (1) Plaintiff shall load and ship to defendant, and defendant shall accept one ear of a specific quality of coal per day, for delivery from date to April 1,1906, at $1.10 per ton, f. o. b. cars, Carterville, Ill.; (2) payments to be made on the 15th of the month for all coal shipped the preceding month, coal to be shipped promptly except in cases of labor troubles, shortage of cars, or any causes beyond plaintiff’s control.
    The testimony disclosed that neither party repudiated the contract and both were in default almost during the entire life thereof. Plaintiff in no month furnished the quantity of coal called for, and defendant at no time paid for the coal it received when the payment was due. In making payments defendant was in default twenty-four days for December deliveries and eighteen to twenty-seven days for January deliveries, and never paid for either the February or March deliveries, the contract price for which was $376.48 and $563.75, respectively, aggregating $940.23, the amount plaintiff sued for.
    Abstract of the Decision.
    1. Set-off and becoupment, § 40

      —what defendant must show under plea of set-off. A set-off being a counterclaim, as to which the defendant is plaintiff, he must establish his right as upon a distinct action, and, if for a breach of contract, must show he is not himself in default as to the agreement.
    2. Sales, § 389*—when purchaser may not set off damages for sellers failure to malee deliveries as agreed. A purchaser, sued for the balance of purchase price due for goods sold and delivered under a contract calling for deliveries and payments in instalments, cannot, where he is in default in making payments, set off damages for the seller’s failure to make deliveries as agreed if he did not offer to do so at the time of accepting the deliveries.
    While defendant requested further shipments his correspondence during the life of the contract recognized his obligation and purposed to pay the balance due for deliveries made. In his last letter before the contract expired, under date of March 13th, he promised to pay the “balance due on February shipments,” and gave no intimation of any claim for damages until after the expiration of the contract when called on to pay the balance of the account.
    The principal question at issue was whether defendant was entitled to a set-off, it not being disputed that subject thereto plaintiff was entitled to an unpaid balance of $940.23 for coal delivered under said contract. Defendant was allowed his set-off to the amount of $547.27, in excess of said balance, for which there was a verdict and judgment.
    Pope, Hoig & Fuller, for plaintiff in error.
    Jacob E. Dittus, for defendant in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic gnd section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Benjamin Devries, Defendant in Error, v. Elaborated Ready Roofing Company, Plaintiff in Error.
    Gen. No. 21,555.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Benjamin Devries, plaintiff, against Elaborated Ready Roofing Company, a corporation, defendant, to recover balance of commission alleged to be due. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.
    Defendant was engaged in making, selling and laying roofing. Under a contract made with its manager, plaintiff solicited orders directly from consumers. His contract required him to make an estimate or measurement of the number of “squares” of material (each containing one hundred square feet) each job would require. He was directed how to make the measurements and was allowed an extra square on each job for any discrepancy. His compensation was to be fifteen or twenty per cent, of the selling price, according to the quality of material ordered. After estimating the cost of the job according to the amount and quality of material.it would take, and securing the order at a gross price, he would send in the order and from the price therein named defendant determined the amount of material to supply. Owing to inaccurate measurements on which the gross price of the job was based, it was often found necessary to supply more than an additional square to complete the job, thus necessitating loss on' the contract. These shortages in measurements were discussed when ascertained, and deductions therefor were made from plaintiff’s commissions, and shown on the monthly statement of accounts submitted to plaintiff according to which he was paid. While he objected thereto, “he took the money and went right on working,” as testified to by defendant’s manager. Plaintiff himself testified that he was told he would have to stand the “cut” and that the matter was final. After he left defendant’s employ he brought this suit for practically the amount of such deductions.
    Abstract of the Decision.
    Accord and satisfaction, § 4

      —when acceptance of commissions during employment constitutes. Where a salesman employed on a commission basis accepts his commissions less deductions for errors committed by him, though under protest, but continues in the employment after being told that the matter is final and he will have to stand “the cost,” he cannot, after leaving such employment,' recover the amount of such deductions, as his acceptance of his commissions under such circumstances constituted an accord and satisfaction.
    S. B. Neltnor, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Rose Lange, Defendant in Error, v. Sadie Stack and Anton J. Cermak, Bailiff, Plaintiffs in Error.
    Gen. No. 21,583.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 966

      —when questions of law not preserved for review. Where, on appeal, the abstract of record discloses no objections taken to the testimony, no propositions submitted to be held as law, and no motion except at the close of the evidence to dismiss the case for want of a prima facie showing, all there is for review is the trial court’s action in overruling such motion.
    2. Execution, § 127*—when evidence sufficient to sustain judgment for plaintiff. In an action for the trial of the right to property taken on execution, evidence showing that some of the articles of property in question were either gifts to the plaintiff or purchased by her with money given her by her relatives, and making prima facie proof of her ownership to the rest of the property, held sufficient to sustain a judgment for the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Rose Lange, plaintiff, against Sadie Stack and Anton J. Cermak, as bailiff of the Municipal Court of Chicago, defendants, to try the right to property taken on execution. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Feed A. Bangs, for plaintiffs in error; Richard H. Colby, of counsel.
    Ludwig R. Dejmek and Joseph Burke, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    John F. Devine, Administrator, Appellee, v. L. Fish Furniture Company, Appellant.
    Gen. No. 20,947.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; .the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Lillian A. Sullivan, deceased, plaintiff, against L. Fish Furniture Company, a corporation, defendant, for damages for death of the plaintiffs’s intestate. To reverse a judgment against it, defendant appeals.
    The plaintiff’s intestate was employed on the sixth floor of defendant’s mercantile establishment and was killed by a fire that occurred in said premises on March 25, 1910, her death being charged in the declaration to have been caused by the failure of defendant to comply with the provisions of section 14 of the Factory Act, entitled “An Act to provide for the health, safety and comfort of employes in factories, mercantile establishments, mills and workshops -in this State, and to provide for the enforcement thereof.” (Laws 1909,p. 202, J. & A. 5399.) The statement of facts in Hunt v. L. Fish Furniture Co., 187 Ill. App. 326, is substantially a correct statement of the facts in the instant case.
    McEwen, Weissenbach, Shrimski & Meloan, for appellant.
    James L. Bynum and Charles C. Spencer for appellee ; Bernhardt Frank, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 198

      —when Appellate Court no power to consider constitutional question. The Appellate Court cannot pass upon the constitutionality of a statute.
    2. Appeal and error, § 1502*—when ashing juror whether company mth which he was associated carried insurance not prejudicial. In an action for damages for death under the Factory Act, sec. 14 (J. & A. If 5399), examination of a juror on his voir dire as to whether a company with which he was associated carried insurance, to which the defendant’s objection was sustained, held not prejudicial to the defendant, the verdict, $5,000, not being large, and not justifying reversal for refusal of the trial court to discharge the panel.
    3. Master and servant, § 801*—when instruction on liability of factory owner for not providing sufficient means of escape in case of fire sufficient. In an action for damages for death under the Factory Act, sec 14 (J. & A. If 5399) an instruction that, “if the jury believe from the preponderance of the evidence * * * that said mercantile establishment was not provided with sufficient and reasonable means of escape in case of fire * * held not objectionable as not defining the word “sufficient” and, in effect, making the defendant an insurer.
    4. Appeal and error, § 1561*—when refusal of requested instruction similar to given instruction harmless error. In an action for damages for death under the Factory Act, sec. 14 (J. & A. jf 5399), the refusal of an instruction, requested by the defendant, to the effect that before the jury could find the defendant guilty of any violation of the statute upon which plaintiff’s declaration was based, plaintiff was bound to produce such evidence as would satisfy the jury beyond a reasonable doubt of the commission of the violation, held not reversible error where, at the defendant’s request, the jury were instructed that, .“if the evidence in this case preponderates in favor of the defendant, * * * or if the evidence fails to preponderate in favor of the plaintiff * * * the jury should find the defendant not guilty.”
    5. Master and servant, § 779*—when instruction on negligence referring to counts in declaration not misleading. In an action for damages for death under the Factory Act, sec. 14 (J. & A. jj 5399), the giving of an instruction that, “if you find from the evidence that the death of plaintiff’s intestate was the result of an accident merely and was not caused by the negligence of the defendant as charged in the first or eighth count of the plaintiff’s declaration, then your verdict must be not guilty,” held not misleading where all counts other than those mentioned in the instruction had been eliminated and the jury had been so informed by the court.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.

6. Appeal and error, § 1561 —when refusal to give requested instruction covered by given instructions harmless error. The refusal to' give a specific instruction to the effect that there can be no recovery by reason of the existence of a certain condition which is not charged as a ground of negligence in the declaration is not reversible error, where other instructions are given limiting the plaintiff’s right of recovery to the negligence charged in the declaration.

7. Master and servant, § 833*—when permitting answers to questions whether employees had been directed as to use of ivindows in case of fire harmless error. In an action for damages for death under the Factory Act, sec. 14 (J. & A. f 5399), questions as to whether directions had been given employees in using windows as a means of escape in case of fire, without specifying from whom the directions might have come, held bad in form and objections thereto should be sustained, but permitting the asking thereof not reversible error where evidence showed that windows were partly open all the time and had fire escape signs over them.

8. Master and servant, § 833*—when refusal to permit defendant’s witnesses to testify as to condition of aisles on floor where fire occurred harmless error. In an action for death under the Factory Act, sec. 14 (J. & A. If 5399), refusal to permit defendant’s witnesses to testify as to the condition of the aisles on the floor on which a fire occurred, held not reversible error for, if the fire escape was a bad one, the defendant would be liable whether access to it was obstructed or not.

9. Master and servant, § 565*—when no variance between. declaration and proof in action for death of factory employee. In an action under the Factory Act, sec. 14 (J. & A. If 5399), for death resulting from a fire in defendant’s factory, held to be no variance between the declaration and proof.

10. Master and servant, § 683*-—when evidence sufficient to sustain judgment for plaintiff. In an action under the Factory Act, sec. 14 (J. & A. If 5399), for the death of an employee due to a fire in defendant’s factory, evidence held sufficient to sustain a judgment for plaintiff.


text:
    Carl Bushnell et al., Appellees, v. Horace L. Brand, Appellant.
    Gen. No. 21,012.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Carl Bushnell and others, plaintiffs, against Horace L. Brand, defendant, to recover balance due on a construction contract. From a judgment for plaintiffs, defendant appeals.
    The action was based on a written contract in part as follows:
    “It is further agreed that the party of the first part (plaintiffs) contracts and agrees to furnish all the material, labor, tools, etc., and to complete and finish for the said party of the second part (defendant), all the general work required for the remodeling of the Illinois Staats Zeitung Building, 24-28 South Fifth Avenue, in said City of Chicago, * * * according to the foregoing specifications, and to the full and complete satisfaction of Hill & Woltersdorf, Architects and Superintendents, as aforesaid (said second party), doth hereby agree to pay to the said first party as the work progresses, and as the same shall be certified to by the said superintendents, from time to time, a sum equal to the actual cost of material furnished by party of the first part and attested to by the architects plus the actual cost of labor expended by the party of the first part, which sum shall be attested to by said architects, plus the arbitrary sum of 15% upon the total of the two aforesaid amounts, namely, the cost of material plus the cost of labor therein.”
    “It is further agreed * * * that one-half of the aforesaid 15% * * * shall be reserved * * * and held by the second party until the full completion of the work under this contract as security for the proper execution of the work stipulated by this supplementary agreement by the party of the first part * * * .”
    In the process of remodeling said building plaintiffs sublet contracts for certain of the work in connection with said building, aggregating $9,749.17. Between February 21, 1912 and May 1, 1912, defendant’s architects, Hill and Woltersdorf, issued to plaintiffs three certificates to the effect that plaintiffs were entitled to the sum stated therein for general work and material furnished under said supplementary agreement, each of which certificates were paid by defendant. The amounts thus paid included the cost of the subcontracts plus fifteen per cent, less seven and one-half per cent, to be retained by defendant under said agreement until the completion of the work in question. About May 1, 1912, a dispute arose between the parties as to commission on subcontracts, resulting, on June 15,1912, in an agreement that whether plaintiffs would receive fifteen per cent, or seven and one-half per cent, upon all subcontracts let by them should be determined by arbitration, and thereupon plaintiffs proceeded with and completed the work. Altogether, defendant’s architects certified to him that plaintiffs had furnished, under said agreement, material and labor amounting to $35,130.98, and that “7%% on subcontracts in the sum of $9,749.17, amounting to $731.19, to be settled by arbitration.” Subsequently, upon advice of counsel, defendant refused to appoint an arbitrator upon the ground that there was nothing to arbitrate.
    It is contended by defendant that under said agreement plaintiffs were only entitled to receive from defendant the arbitrary sum of fifteen per cent, on the actual cost of material and labor furnished by plaintiffs, and that as the material and labor furnished by the subcontractors included a profit to such subcontractors, such material and labor did not come within the terms of such agreement. Defendant also contended that the court erred in admitting evidence of custom in the building trade in Chicago (which evidence tended to show that general contractors were permitted to sublet contracts), and that the court further erred in giving improper instructions in behalf of plaintiffs and in refusing to give proper instructions offered by defendant.
    Abstract of the Decision.
    1. Building and construction contracts, § 109

      —u>hat is extent of recovery on by contractor subletting worlt to another. Where, under a contract for remodeling a building, whereby the owner agrees to pay the contractor the actual cost of labor and material furnished plus a certain percentage thereof, the contractor lets out the work to a subcontractor, he is entitled to recover only the actual cost of such labor and material to such subcontractor plus the specified percentage thereon, and not the amount for which such subcontract was let plus such percentage thereon.
    2. Contracts, § 164*—when evidence inadmissible to modify terms of. Where a written contract is free from ambiguity, evidence of any custom that would vary or modify its express terms is inadmissible.
    Breding & Cesas, for appellant.
    Norman K. Anderson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.