text:
    Chester A. Harris and John H. Dillavou, trading as Harris & Dillavou, Appellees, v. D. S. Willis, trading as D. S. Willis Coal Company, Appellant.
    Gen. No. 23,208. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action on an account stated by Chester A. Harris and John M. Dillavou, trading under the name and style of Harris & Dillavou, plaintiffs, against D. 8. Willis, trading under the name and style of D. S. Willis Coal Company, defendant. From a judgment for plaintiffs for $804.35, defendant appeals.
    Abstract of the Decision.
    1. Appeal and ekbob, § 801

      —how ruling striking affidavit of merits and statement of set-off from files presented for review. To present properly for review a ruling of the trial' court striking from the flies defendant’s affidavit of merits and statement of set-off, defendant should preserve in his hill of exceptions the affidavit of merits and statement of set-off and the court’s ruling thereon, else the trial court will he presumed on appeal to have ruled thereon properly.
    2. Appeal and erbob, § 801*—what must be preserved by bill of exceptions. A pleading which has heen stricken from the files is no longer a part of the common-law record, and can be brought to the attention of the court of review by a bill of exceptions only.
    3. Municipal Court of Chicago, § 27*—what is effect of statute on necessity of bill of exceptions. Section 38 of the Municipal Court Act (J. & A. 1f 3350), providing that no formal exceptions need be taken in actions of the first class to any erroneous ruling of the court against the objection of the party complaining, does not obviate the duty of preserving for review, by a bill of exceptions, such matters as are not properly a part of the record.
    4. Appeal and error, § 801*—when right to have stricken affidavit of merits a/nd statement of set-off reviewed is waived. A defendant whose affidavit of merits and statement of set-off have been stricken waives any right of having the court’s ruling reviewed on appeal where he thereafter asks leave to file an amended affidavit and statement.
    5. Pleading, § 153*—what are requisites of affidavit of merits. It is not sufficient for an affidavit of merits to state that defendant verily believes that he has a good defense, but he must, under the statute (J. & A. If 8592), specify the nature of the defense.

      David H. Jackson, for appellant.
    Edwy Logan Beeves, for appellees; Ernest Kasischke, of counsel.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

6. Pleading, § 153 —when affidavit of defense is insufficient. The nature of the' defense in .an action on account stated is not sufficiently stated by an affidavit of defense which states that defendant does not owe plaintiff the amount claimed and that there is due from plaintiff to defendant a specified amount which should be deducted from any amount alleged to be due plaintiff from defendant, defendant having paid plaintiff the difference between the amount alleged to be due from defendant, and the amount defendant states in his affidavit is due him from plaintiff.

7. Municipal Coubt of Chicago, § 13*—when statement of set-off is insufficient. A statement of set-off, in an action on an account stated, is insufficient where, from all that appears therein, the transactions involved in it may have antedated a settlement agreement set forth in plaintiff’s statement of claim.

8. Municipal Coubt. of Chicago, § 13*—discretion of court as to granting leave to file amended pleading. A motion for leave to file an amended pleading is addressed to the discretion of the court, and its ruling thereon will not be reversed unless an abuse of discretion clearly appears.

9. Municipal Coubt of Chicago, § 13*—when no abuse of discretion to refuse to allow filing of pleadings. Refusal to permit the filing of a third affidavit of merits and statement of set-off cannot be said to be an abuse of discretion.

10. Municipal Coubt of Chicago, § 16*—when trial by jury not proper. Where defendant’s affidavit of merits has been properly stricken, a judgment as upon a default without a trial before a jury is proper, even though defendant has a jury demand on file.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    Joseph A. Cottam, Appellee, v. National Mutual Church Insurance Company, Appellant.
    Gen. No. 23,220. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 443

      —when witness incompetent to testify as to value. It is error to permit a witness who has stated that he does not know what a certain article was worth to testify what he thinks it was worth.
    2. Insurance, § 653*—when prior application is admissible to show statement as to value of goods. In an action to recover on a contract of fire insurance on household goods, it is error to refuse to permit defendant to introduce an original application made by plaintiff to defendant for another policy on his household goods two years before the application for the policy in suit, in each of which applications the value of the goods was stated. •
    3. Insurance—when evidence of acquittal on charge of arson inadmissible. Where, in an action on a policy of fire insurance, some evidence has been injected into the record by plaintiff that the fire had been the subject of another trial which involved a charge of arson, it is error to permit plaintiff’s wife to testify over defendant’s objection that plaintiff was acquitted on such other trial.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Action in assumpsit by Joseph A. Cottam, plaintiff, against National Mutual Church Insurance Company, a corporation, defendant, to recover upon a contract of fire insurance. From a judgment for plaintiff for $3,400, defendant appeals.
    N. M. Jones, for appellant.
    Herbert E. Bradley, for appellee; Arthur W. Kilpatrick, of counsel.

      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.

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

   Mr. Justice Thomson

delivered the opinion of the court.

4. Insurance, § 626 —when statements by insured after fire admissible to show preparation of alibi. In an action to recover on a fire insurance policy, evidence of witnesses that plaintiff had stated to them after the fire that he believed that a religious denomination had burned him out for spite and that they were angry because he was going to preach on a certain topic that night, is material as bearing upon defendant’s theory that plaintiff was seeking to prepare an alibi and had preached upon the topic in question for that purpose.

5. Insurance, § 653*—when deposition is inadmissible to show price paid for old exchanged piano and cost of repairing. In an action on a fire insurance policy, the fact that it is shown that plaintiff received a credit of $300 for an old piano on the purchase price of a player-piano, which was one of the articles burned, does not render admissible a deposition by which it is sought to show that he paid $175 for the old piano and had it repaired at a cost of about $125.

6. Insurance, § 649*—inadmissibility of evidence of other fires. In an action on a fire insurance policy, evidence of other fires by which plaintiff has suffered is inadmissible.

7. Insurance, § 120*—how contract construed. Provisions of an insurance contract are construed strictly against the insurer.

8. Insurance, § 222*—what constitutes mere representation as to value not avoiding fire policy. The statement in an application for fire insurance that the property is “valued at” a certain sum may well be considered a statement of the amount at which the insured values the property, and as a mere representation the incorrectness of which will not avoid the contract unless made with knowledge of its falsity and with fraudulent intent.

9. Insurance, § 680*—when misrepresentation of value question for jury. The question as to whether statements of an insured as to the value of the insured property constituted a misrepresentation is for the jury.

10. Insurance, § 222*—when misrepresentation as to value avoids policy. A misrepresentation by an insured as to the value of the policy must, in order to avoid it, have been material and made wilfully and with knowledge that it was false.

11. Instructions, § 126*—when refusal of abstract instruction proper. It is not error to refuse to give an instruction which is merely an abstract proposition and not in any way connected with the case.

12. Instructions, § 151 —when refusal of covered instruction proper. It is not error to refuse a party’s request to give an instruction where its subject-matter is fully covered by another instruction given at his request.

13. Pleading, § 248*—when amendment of ad damnum proper. It is not error to permit an amendment increasing the ad damnum at any time before judgment is entered.

14. Insurance, § 607*—what proof required to show that plaintiff set fire to property. To entitle an insurer to a verdict on the ground that the evidence shows that plaintiff had committed arson by setting fire to the property, the insurer must establish its case not merely by a greater weight of the evidence, but beyond a reasonable doubt.

15. Attorney and client—when attorney should not act as counsel in case against client in another case. Where the confidential relation of attorney and client has existed and the former has defended the client in a criminal trial, it is improper for him to act as counsel for one contesting an issue with the former client which grows out of the same transaction involved in the criminal trial, especially where establishing it involves practically establishing the truth of the same charge against which he defended the client.

Taylor, P. J., dissenting.


text:
    Illinois Surety Company, Appellee, v. Fayette S. Munro, Appellant.
    Gen. No. 23,228.
    1. Appeal and ebbob, § 801

      —when pleading must be preserved in bill of exceptions. After a pleading is stricken from the files it no longer remains a part of the record, and, to preserve for review the question of the correctness of the court’s ruling in striking it from the files, the pleading itself must be preserved in the bill of exceptions, else it cannot be considered, even though it appears in the transcript as a part of the record.
    2. Municipal Coubt op' Chicago, § 29*—what subject of review when no affidavit of merits on file. Where a case has been heard without an affidavit of merits on file, the only question presented is whether or not the statement of claim states a good cause of action and whether or not such statement and the testimony submitted to sustain it will support the verdict and judgment entered by the trial court.
    3. Guaranty, § 1*—when obligation to answer for debt of another is collateral. The obligation of one to answer for the debt of another may be collateral, whether the debt of the other is existing, contemporaneous or subsequent with regard to the time the obligation is assumed.
    4. Guaranty, § 1*—what is nature of contract of. A contract of guaranty is a collateral undertaking by one person to be answerable for the payment of some debt or the performance of some duty or contract for another person who stands first bound to pay or perform.
    5. Indemnity, § 1*—what is nature of contract of. A contract of indemnity involves an obligation or duty on the part of the person making it to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.
    6. Indemnity, § 1*—how contract of distinguished from contract of guaranty. A contract of indemnity is distinguished from one of guaranty in that in indemnity contracts the engagement is to make good and save another from loss upon some obligation which he has incurred or is about to incur to a third person, and is not, as in a contract of guaranty, a promise to one to whom another is answerable; the promise in an indemnity contract is an original and not a collateral undertaking.
    7. Guaranty, § 1*—what is rule as to necessity of existing debt to which promise can be collateral. The rule that before a promise can be held collateral it must be shown that there is an existing debt of some other to which it can be collateral is not to be understood as requiring that such debt must be existing at the time the collateral promise is entered into, but as meaning that ‘there must be an actual binding promise of some other person to the creditor, the time when the debt comes into existence being-unimportant, provided it does come into existence.
    8. Guaranty, § 11

      —what is test on issue of original or collateral promise. "Where the issue involved is whether a promise is original or collateral, the question as to when the promise was made with reference to the incurring of the debt is not the test, but the test is whether the person sought to be charged was to be liable at all events or only in case the other failed to pay.
    9. Guaranty, § 11*—when surety company deemed to have given credit to litigant. A surety company which executes and files a bond for costs for a litigant from whom it demands and receives an •obligation to reimburse it for all costs and expenses to which it may be put by reason of giving such bond, also requiring the litigant to give reasonable assurance, by giving references of his ability to perform such obligation, and which receives payment of the premium on the bond from the litigant, will be held to have given credit to the litigant and not to one who promised it to stand back of any obligation which the litigant might incur .in such behalf.
    10. Guaranty, § 9*—what controls in determining whether promise is contract of. In determining whether a promise constitutes a contract of guaranty or a contract of indemnity, the intention of the parties controls.
    11. Guaranty, § 9*—how language construed in determining whether promise intended is contract of. In ascertaining whether a promise was intended as a contract of guaranty or as a contract of indemnity, great weight will be given to the language used in making the promise, and such language will be construed in accordance with the well-known and usual meaning of the words, unless there are facts and circumstances showing that such words were used in a different sense.
    12. Guaranty, § 1*—when promise is collateral to original obligation. A promise by one to a surety company that if the latter executes and files for a certain litigant its bond for costs in an action, such one “will stand back of any obligation” which the litigant “may incur in this behalf” is collateral to the original obligation.
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed January 30, 1918.
    Bowen W. Schumacher, for appellant.
    Hopkins & Hopkins, for appellee; Albert J. Hopkins and Haskell C. Davis, of counsel.

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

      See Illinois Notes Digest, Vola. XI fó XV, anc| Cumulative Quarterly* same topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action brought by the Hlinois Surety Company, appellee, hereinafter referred to as the plaintiff, against Fayette S. Munro, appellant, hereinafter referred to as the defendant, in which there was a verdict for the plaintiff for the sum of $1,511.37, on which the trial court entered a judgment, from which the defendant has appealed.

So far as it is necessary to state them for the purposes of this opinion, the facts are as follows: The defendant is an attorney of the firm of Vroman, Munro & Vroman. He represented a Mr. Rice in some litigation in the State of Wyoming in which it was necessary for the latter to file a bond for costs. The defendant wrote a letter to the plaintiff in the following words:

“Chicago, November 22, 1911.
“Mr. Schick, Secy.,
Hlinois Surety Co.,
Chicago.
“Dear Sir:
This will introduce Mr. Edward F. Rice, who desires to get a cost bond in the Federal Court, and this firm will stand back of any obligation which Mr. Rice may incur in this behalf.
Very truly yours,
“F. S. M. Vroman, Munro & Vroman.”

The defendant gave this letter to Mr. Rice and the latter presented it to the plaintiff at the time he applied to it for the needed bond. Before executing this bond, the plaintiff required Mr. Bice to execute its usual form of application, in which he made answer to a number of questions, among others, one inquiring as to the extent of his real and personal property and another requesting him to give the names and addresses of several references. This application executed by Mr. Bice amounted to a contract of indemnity on his part, for, in it, he not only covenanted and promised to pay the premium on the bond, but to reimburse plaintiff for any amounts of any kind or nature it might be required to pay out as a result of executing the bond.

Pursuant to the application, plaintiff filed its bond for costs in the Circuit Court of the United States for the District of Wyoming in the suit wherein Bice was the plaintiff. The bond filed by the plaintiff covered not only the court costs but ail the costs that might accrue to any of the officers of the court. Some time later, Bice having died, the court of Wyoming entered a decree reciting his death and also reciting that certain receiver’s and other fees were due and unpaid and that there were no assets in the hands of the receiver out of which they could be paid, and directing the Illinois Surety Company to pay such costs. The decree further proceeded to dismiss the suit. Under that decree, the plaintiff paid the sum of $1,165.14, and in addition spent the sum of $19.50 in expenses and $150 in attorney’s fees in an attempt to have the costs retaxed in the Wyoming court. •

The defendant here filed his affidavit of merits which, on motion of the plaintiff, was stricken from the files as were certain amended and additional affidavits of merits which were later filed, following which the court heard certain testimony presented by the plaintiff and also the defendant, after which the court instructed the jury to find the issues for the plaintiff and assess the plaintiff’s damages at the sum of $1,165.14 with interest thereon at the rate of 5 per cent, from May 28, 1913, and in addition thereto such further sum as the jury might believe to be reasonable fees and expenses expended by the plaintiff, not exceeding, however, the amount of $169.59 which the evidence showed the plaintiff had actually paid out for that purpose.

It is urged by the defendant that the judgment of the trial court should be reversed by reason of the fact that the court erred in striking from the files his last affidavit of merits filed July 15, 1915. Although the bill of exceptions which is contained in the record of this case includes the order of the trial court complained of, and its decision to the effect that the order

was entered pursuant to the court’s ruling that the affidavit of merits was clearly unfounded in law, the bill of exceptions does not include the affidavit of merits which the court struck from the files. After a pleading is stricken from the files, it no longer remains a part of the record, and, in order to preserve for review the question of the correctness of the ruling of the court in striking the pleading from the files, the pleading itself must be preserved in the bill of exceptions. Not being so preserved, it cannot be considered though it may appear in the transcript as a part of the record. Barger v. Hobbs, 67 Ill. 592, 597; Mann v. Brown, 263 Ill. 394; Harmon v. Callahan, 207 Ill. App. 506; Witteman Co. v. Goeke, 200 Ill. App. 108; American Lumber Co. v. Leach, 207 Ill. App. 62.

The case having been heard without an affidavit of merits on file, the only question presented is whether or not the second amended statement of claim of the plaintiff, on which the testimony was heard and the judgment entered, states a good cause of action, and whether or not the second amended statement of claim and the testimony submitted to the court in support of it will support the verdict and the judgment entered by the trial court.

The defendant urges that the judgment should be reversed by reason of the fact that the contract of the defendant with the plaintiff, as set forth in defendant’s letter of November 22nd, is a contract of guaranty and a collateral undertaking, guaranteeing the obligation of Mr. Eice, and that the plaintiff cannot recover in that they have failed either to allege or to prove that Mr. Eice has made any default in his contract with the plaintiff, and have failed to make any showing of due diligence to recover their loss from the one primarily liable, or from his estate.

The plaintiff contends, on the other hand, that the judgment should be affirmed by reason of the fact that the contract of the defendant, as set forth in his letter, is not a contract of guaranty but one of indemnity, wherein the defendant is primarily liable and agrees to reimburse the plaintiff the moment the latter is required to pay out anything by reason of its obligation entered into in filing its bond for costs in the federal court.

It thus becomes necessary to determine just what the contract of the defendant is, as set forth in his letter of November 22nd. In support of its position the plaintiff contends that the defendant’s agreement is an original obligation on his part and not a collateral one, by reason of the fact that at the time defendant entered into the obligation Eice was in no way indebted to the plaintiff; that, in order tó make an obligation collateral, there must be in existence, at the time the obligation is entered into, a debt of another to which the obligation may be collateral, but wherever an agreement is made, guaranteeing a debt of another which is to be entered into in the future, the obligation is an original one and not collateral.

This is not a correct statement of the law. The obligation of one to answer for the debt of another may be collateral whether the debt of the other is present, or prospective at the time the obligation is entered into. 20 Cyc. 1397. A promise may be collateral whether made before or after or contemporaneously with the promise of the original debtor. 20 Cyc. 163.

A contract of guaranty is a collateral undertaking by one person to be answerable for the payment of some debt or the performance of some duty or contract for another person who stands first bound to pay or perform. 20 Cyc. 1397. A contract of indemnity involves an obligation or duty on the part of the person making it to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit. Contracts of indemnity are distinguished from those of guaranty in that in indemnity contracts the engagement is to make good and save another from loss upon some obligation which he has incurred or is about to incur to a third person, and is not, as in guaranty, a promise to one to whom another is answerable. The promise in an indemnity contract is an original and not a collateral undertaking. 22 Cyc. 79-80.

In support of its contention, plaintiff cites the case of Lusk v. Throop, 189 Ill. 127, but it is not in point. There was a conflict in the evidence in the trial court in that case, with reference to the form of the promise made by the defendant, some witnesses giving testimony to the effect that the defendant had told the plaintiff that if he would deliver certain goods to a third party the defendant would pay for them, and other witnesses testifying that what the defendant had said was to the effect that if the third party did not pay for them, he, the defendant, would. There was thus presented to the jury an issue of fact as to whether the language used by the defendant was such as to make him primarily liable or such as to make him only secondarily liable. The jury found for the plaintiff on this issue of fact and this finding of the jury was reviewed in the Appellate Court where the judgment was affirmed. In the Supreme Court it was held that the affirmance of the judgment in the Appellate Court conclusively determined this question of fact, and, it thus having been found that the promise made by the defendant was one which made him primarily liable, it was not within the Statute of Frauds —contrary to the contention which the defendant had urged to the effect that it was a collateral promise and being oral was void. In the case at bar no such issue of fact is raised as the promise is in writing, and its terms are not disputed.

The rale to the effect that before a promise can be held to be collateral it must be shown that there is an existing debt of some other person to which the promise can be collateral is a correct rule but should not be understood as meaning that the debt of the other person must be in existence at the time the collateral promise is entered into but as meaning that there must be an actual binding promise of some other person to the creditor, for, without such original obligation, the promise cannot be collateral. The question of when the debt of the other comes into existence is not important, just so long as it does come into existence. As stated in Hargreaves v. Parsons, 13 M. & W. 561, a promise is collateral when “made to the person to whom another is already or is to become answerable. It must be a promise to be answerable for the debt of, or default in some duty by, another person towards the promisee.’’ To the same effect is Mallory v. Gillette, 21 N. Y. 414, where it is held that “original and collateral obligations may come into existence at the same time and both be the foundation of credit, or one may exist and the other be created afterwards; in either case, and equally in both, the inquiry under that statute (of Frauds) is whether there be a debtor and a surety and not when was the relation created.”

The confusion about the interpretation and application of this rule seems to have had its beginning with' a ruling by Lord Mansfield in the case of Maubrey v. Cunningham, in 1773, in which he held that as the promise involved was before the delivery of the goods, it was an original promise and not within the Statute of Frauds, because, at the time of the promise, there was no debt to which it could be collateral. The words making up the promise in that case seem to be substantially a request to deliver goods to another and “I will see them paid for.” The following year, the case of Jones v. Cooper, 1 Cowp. 227, arose, and, in that case also, the promise involved was before the delivery of the goods but was á promise to pay for them in case the other did not pay, and in that case Lord Mansfield held it was a collateral undertaking and within the Statute of Frauds. In the case of Peckham v. Faria, 26 E. C. L. 21; 3 Dougl. 13, which arose in 1781, and which was also decided by Lord Mansfield, we find him using this language: “Before the case of Jones v. Cooper, I thought there was a solid distinction between an undertaking after credit given and an original undertaking to pay, and that, in the latter case, the surety being the object of the confidence was not within the statute, but, in Jones v. Cooper, the court was of the opinion that wherever a man is to be called upon only in the second instance he is within the statute; otherwise, where he is to be called upon in the first instance, not within it.” In that case the defendant had told the plaintiff that he might deliver goods to a third person in the future and “I will pay you if he does not,” and the court held that the promise was collateral.

It is now well settled not only in England, but in this country as well, that a promise to pay the debt of another may be collateral although at the time the promise is made the debt to which it becomes collateral may not have been incurred. Jones v. Cooper, 1 Cowp. 227; Peckham v. Faria, 26 E. C. L. 21; 3 Dougl. 13; Cahill v. Bigelow, 18 Pick. (Mass.) 369 (overruling the earlier case of Perley v. Spring, 12 Mass. 297, cited by plaintiff); Cole v. Hutchinson, 34 Minn. 410; Mead, Mason & Co. v. Watson, 57 Vt. 426; Stone v. Walker, 13 Gray (Mass.) 613; Blank v. Dreher, 25 Ill. 331; Taussig v. Reid, 145 Ill. 488; Heggie v. Smith, 87 Ill. App. 141; Smith v. Bainbridge, 6 Blackf. (Ind.) 12; Babcock v. Bryant, 12 Pick. (Mass.) 133; Tileston v. Nettleton, 6 Pick. (Mass.) 509.

Many of the cases cited by the plaintiff in support of its position are cases involving' contracts of indemnity as distinguished from contracts of guaranty and therefore are not in point; and, in others, the language used by the promisor is clearly to be distinguished from the language involved in the case at bar.

Where the issue involved is whether the promise is original or collateral, the question of when the promise was made with reference to the delivery of the goods, or the performance of the service, is never the test, but the true test is whether the credit is given to the promisor, the person sought to be charged, or to the third person to whom the goods are delivered or for whom the service is performed, the person sought to he charged only guaranteeing that the person to whom the credit is given would pay the debt. Or, stated in another way, the test is whether the person sought to be charged was to be liable at all events or only in case the other failed to pay. Geary v. O’Neil, 73 Ill. 593; Cole v. Hutchinson, 34 Minn. 410; 3 Kent Com. 123, and cases cited.

It seems clear that in the ease at bar the plaintiff in executing its bond and filing it in the United States Court did not give credit to the person here sought to be charged, namely, the defendant, but to Rice. This is indicated by the fact that it took Rice’s obligation to reimburse the plaintiff for all costs and expenses to which it might be put by reason of the execution and fihrig of its bond, and to give the plaintiff reasonable assurance that Rice could perform his obligation they required him to give references. It appears from the .record that Bice and not the defendant paid the premium on the bond.

The question that controls is, What was the intention of the parties in making and in receiving the promise in question? Did the promisor (the defendant) intend to make an original promise, and, when the promise was made did the promisee (the plaintiff) consider that the promisor' was becoming primarily liable? On the question of the intention of the parties, the form of expression employed in making the promise is entitled to and should receive great weight. The language employed will be construed in accordance with the well-known and usual meaning of the words used in order to arrive at the intention of the parties unless there are facts and circumstances of the transaction clearly showing that the parties, in making use of the form of promise they did, used it in a sense different from that in which it is commonly used. 15 L. R. A. (N. S.) 214-227, note. In the ease at bar, the defendant did not promise to indemnify the plaintiff against any damages which it might sustain by reason of executing the bond which Mr. Bice wanted, nor did he promise to see the plaintiff harmless should the latter become surety for Mr. Bice. Wliat he did do was to promise the plaintiff that if the latter executed and filed its bond as requested by Mr. Bice, he “would stand back of any obligation which Mr. Bice might incur in this behalf.” The use of that language indicates what the intention of the defendant was so clearly as to make it impossible to escape it. The promise says in so many words that it is contemplated that there is to be an obligation on the part of Mr. Bice and that the defendant promises to stand back of that obligation, or, in other words, that it is the intention of the promisor to make a promise which shall be collateral to the obligation of Mr. Bice. It seems to us that the intention of the plaintiff with reference to the making of this promise is as clearly indicated by the facts disclosed by the record in this case as the intention of the defendant. That it was the intention of the plaintiff that Mr. Eice was primarily liable; and that the defendant’s promise was collateral to the original obligation of Mr. Eice is established by the fact that the plaintiff carefully inquired as to the financial ability of Mr. Eice and took his original obligation to reimburse it against any loss by reason of issuing the bond and further by the fact that they received payment of the premium on the bond from Mr. Eice.

A case in which the words used by the promisor were very similar to the words used by the defendant here is the case of Billingsley v. Dempewolf, 11 Ind. 414, where A loaned his horse to B under promise by C that “any agreement you and B make about the horse I will make good.” B failed to return the horse and A sued C for its value, and the court held that the promise involved was collateral. The court said that it was a question for the trial court, sitting as a jury, to determine whether the credit was given to the person to whom the horse was given or to the defendant, and that the finding of the trial court to the effect that the credit had been given by the plaintiff to the one who had received the horse would not be disturbed and the court adds: “We think, also, that a proper construction of the terms of the promise is that it was a collateral undertaking.”

The plaintiff brought his suit against the defendant on the theory that the contract entered into by him was a primary obligation, and the amended statement of claim on which the judgment was entered in the trial court alleges the contract to be one of indemnity. That was the theory- on which the plaintiff tried his case and upon which the court entered its judgment.

As we are of the opinion that the defendant’s liability under this contract, if any, is a secondary one, the judgment of the Municipal Court must be reversed..

Reversed.


text:
    Ernest De St. Aubin, Appellant, v. William G. King, Individually and as Trustee, et al., Morris Kurtzon, Appellee.
    Gen. No. 23,242. (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § 304

      —when interest allowed defendant for period which foreclosure sale delayed. Where damages are awarded defendant on the dissolution of a temporary injunction against a foreclosure sale, it is proper to allow interest to defendant, for the period the sale was delayed by the injunction, on money borrowed by him to use in buying an interest in the decree, even though the decree carried interest.

      Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Statement of the Case.
    Bill by Ernest De St. Aubin, complainant, against William Gr. King, individually and as trustee, Morris Kurtzon and Chicago Title & Trust Company, trustee, defendants, to enjoin a sale on foreclosure. A preliminary injunction procured by complainant was dissolved on motion of defendants, and, on suggestions of damages filed by defendant Kurtzon, a decree was entered in the latter’s favor awarding him $471.90 damages against complainant, from which decree complainant appeals.
    Teller, Hart & Pennish, for appellant; Myer N. Rosengard, of counsel.
    Edmund W. Froehlich, for appellee.

      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 Thomson

delivered the opinion of the court.

2. Injunction, § 296*—what damages awarded on dissolution of against foreclosure sale. Where the sale of property on foreclosure is enjoined, damages on the dissolution of the injunction should be computed according to the injury actually sustained, and consideration may be given to the proper amount .which might have been realized if the sale had not been enjoined, the value of money at the time and such other circumstances as tend to show the actual injury sustained.

3. Injunction, § 381*-—what need not he shown hy record on appeal from decree awarding damages on dissolution of. On appeal from a decree awarding damages on the dissolution of an injunction, it is not necessary that it appear from the record that the defendant paid or became liable to pay the amount allowed as solicitor’s fees or that the amount allowed was the usual and customary charge for the services rendered. It is sufficient if it appear that the amount allowed was reasonable and fair, in view of the services rendered.

4. Attorney and client, § 52*—what constitutes prima facie showing of employment of attorney. Where the record on appeal from a decree awarding damages on the dissolution of a temporary injunction discloses that a certain attorney appeared for defendant, argued the motion to dissolve in his behalf and that the motion was granted, there is a prima facie showing that the attorney was employed by defendant.

5. Attorney and client, § 52*—when presumed attorney properly employed. Where there is prima facie proof that an attorney was employed by a party, defendant in proceedings for dissolution of temporary injunction, it will be presumed that he was properly employed until the contrary is shown.

6. Injunction, § 321*—solicitor’s fees for procuring dissolution of temporary. An award of a solicitor’s fee of $250 for services in procuring the dissolution of a temporary injunction, held reasonable and fair.

7. Injunction, § 296*—cost of advertising foreclosure sale as damages upon dissolution of. On awarding damages on the dissolution of a temporary injunction against a foreclosure sale, it is proper to include the cost of advertising the original sale.


text:
    John H. Lloyd, Appellee, v. Lincoln Stars, Appellant.
    Gen. No. 23,248. (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 390

      —when authority of person to sign contract shown. On an attachment suit against a corporation to recover for services rendered under a contract of employment, held that the evidence showed that the person executing such contract was sole proprietor of defendant, and that such contract was admissible in evidence.
    2. Corporations, § 381*—when ratification of contract of employment shown. Evidence held to show that a corporation ratified a contract of employment made by another, received the benefit thereof and failed to pay in full for such services.
    3. Attachment, § 246*—what is sufficient to sustain. Where an affidavit for attachment alleges two statutory grounds and defendant denies only one of them in its traverse, the other ground is admitted and is sufficient to sustain the attachment.
    Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 30, 1918.
    Rehearing denied February 13, 1918.
    Statement of the Case.
    Attachment hy John H. Lloyd, plaintiff, against Lincoln Stars, a corporation, defendant, to recover for services rendered. From a judgment for plaintiff for $234.15, defendant appeals.
    Laurence M. Fine and Edward Drobnis, for appellant.
    Ellis & Westbrooks, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Ellen White, by Mary F. White, Plaintiff in Error, v. Frank T. Boydston and John W. Snyder, Defendants in Error.
    Gen. No. 21,728.
    1. Negligence, § 19

      —what constitutes an attractive nuisance. A material hoist and the wheel over which the cable used to operate it passes, which are being used in the construction of a building and are visible from the street the building fronts upon, and accessible to children who go in to use it through unprotected openings in the building for windows and doors, constitute an “attractive nuisance.”
    2. Negligence, § 19*—what„ is part of attractive nuisance. A wheel inseparably connected with a mechanism which constitutes an “attractive nuisance” must be regarded as a part thereof.
    3. Negligence, § 19*—what does not relieve owner of attractive nuisance from. liaMlity for injury to ohild. One maintaining an “attractive nuisance” is not relieved from liability for injury to a child caused by it by the fact that the child was first attracted to the street, from which the “attractive nuisance” was visible, by the noise of other children and thereafter went upon the premises containing the mechanism.
    Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 31, 1918.
    Rehearing denied February 7, 1918.
    Edward J. Kelley, for plaintiff in error.
    Busby, Weber & Miller and Arthur J. Donovan, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The judgment below was entered on a directed verdict for defendants at the close of plaintiff’s evidence, in an action brought while plaintiff was a minor, to recover damages for a personal injury resulting in the loss of her finger under the following circumstances :

Defendants were engaged in the construction of a building fronting on a street and running back to an alley. The walls had been built up to the second sfory and had openings for doors and windows along the street and alley sides through which boys entered, when the workmen were absent, to play upon a hoist or elevator used for lifting material to the second story. The hoist was inside near the front entrance and operated by a cable that passed over a wheel near the rear entrance of the building. In the course of operation as one platform ascended the other descended. When the boys went in to play they would first release a pin that held the platforms stationary when not in use, and then would climb to the second story by a ladder, get on the upper platform, and their weight caused it to descend. After so descending they would return to the second floor and repeat the operation. Plaintiff, then a child about 8 years old, hearing their noise and laughter, went from her home, which was across the alley from the building, and entering it from the alley watched the boys for awhile as they thus caused the movement of the platforms and consequent revolutions of the wheel, and, placing her hand on the wheel when it stopped, received the injury when it was again so set in motion. She had never been in the building before and had no knowledge of the existence of the hoist or wheel until she got there on this occasion. While there was no direct evidence of the visibility of the hoist from a public place, the circumstances of the proximity of the building to the street and alley, its unfinished condition, and wide, unobstructed openings, support the inference that the platforms could be seen from both the street and alley.

The declaration was predicated upon the theory of an attractive nuisance, And charges the defendants with negligence in permitting the windows and doorways and the elevator and its attachments to be unprotected and unguarded under such circumstances,

Inasmuch as the platforms would naturally thus be used by boys, and could be seen from a public street, the mechanism would seem to come within the category of “attractive nuisances.” And as the wheel was inseparably connected therewith we think it must be regarded as a part of it, thus differing in that important respect from the case of McDermott v. Burke, 256 Ill. 401, cited by defendants in error.

But it is strenuously urged by defendants in error that the little girl was not attracted by the mechanism itself but by the boys’ laughter and “hollering,” she having testified that she “went over to see what they were hollering about,” and that therefore there was no implied invitation to her to enter the building, and no corresponding duty owing to her by defendants in error. We think it is immaterial what induced her to go to the street or alley,'where, she had a right to be, if when there she was tempted to enter the building by the attractive thing and injured by it. Hence, as there was evidence tending to show she was allured and injured by an “attractive nuisance,” the court erred in directing a verdict and the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Lozier Motor Company, Appellee, v. Luther V. Rice, Appellant.
    Gen. No. 23,047. (Not to be reported in full.)
    Abstract of the Decision.
    Pbincipax, and agent, § 187

      —when sale Ijy agent deemed ratified. One who, after knowledge of the facts attending the sale and delivery of its property by its agent, fails to disaffirm promptly the contract, and by its conduct induces the other party to suppose the contract is recognized, will be held to have ratified or acquiesced in the sale and cannot thereafter recover possession of the property by replevin, whether or not the agent exceeded his authority.
    Appeal from the Municipal Court of Chicago; the HonJ-JoHN Stelk, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed January 31, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action of replevin by Lozier Motor Company, a Michigan corporation, plaintiff, against Luther V. Bice, defendant, to recover an automobile sold defendant by an alleged agent of plaintiff. From a finding and judgment by the court for plaintiff, defendant appeals.
    C. A. Nowak, for appellant.
    Fred and Aleck L. Bernstein, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    George E. Ford, Appellant, v. M. Piowaty & Sons, Appellee.
    Gen. No. 23,084. (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 329

      —when evidence insufficient to sustain judgment for plaintiff in action for purchase price. In an action to recover the purchase price of perishable goods sold for delivery at another city,, where the judgment for plaintiff was based on the theory of plaintiff’s neglect to give notice of the shipment and arrival of the goods and defendant’s right to recoup the difference between the purchase price and what the goods actually sold for, evidence held insufficient to show that defendant was diligent in minimizing the loss included in the payment.
    Appeal from the Municipal Court of Chicago; the Hon. D. H. Wamslby, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 31, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action by George E. Ford, plaintiff, against M. Piowaty & Sons, a corporation, defendant, to recover the purchase price of goods sold. From judgment against defendant for $30.45, plaintiff appeals.
    Stewart Reed Brown, for appellant.
    Sabath, Stafford & Sabath, for appellee; Charles B. Stafford, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mendel Sachs, Appellee, v. Friedman Brothers & Lipsky Company, Appellant.
    Gen. No. 23,108. (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 322

      —when sale to corporation through officer shown. In an action to recover the purchase price of goods sold and delivered, evidence held to support a finding that the goods were purchased by one of defendant’s officers for defendant and not for himself individually, though he gave his personal check in payment.
    2. Interest, § 18*—when account deemed liquidated. In an action to recover for the purchase price of goods where it is found that a check for the exact amount of the price was given by defendant immediately after the delivery, it is to be inferred that thé purchase price was due at the time of the sale and 'was, therefore, a liquidated account bearing interest from the date of the sale.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Mendel Sachs, plaintiff, against Friedman Brothers & Lip sky Company, a corporation, defendant, to recover the purchase price of goods and merchandise claimed to have been sold defendant. From a judgment for plaintiff, defendant appeals.
    Mancha Bruggemeyer, for appellant.
    Jacob Levy and Josiah Burnham, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Appeal and error, § 1165*—when contention not reviewed. The Appellate Court will not review a contention which is not made an issue by the pleadings and upon which it is not disclosed by the abstract that the court was called to rule by instructions or otherwise.


text:
    Myrtle Mitchell, Appellee, v. Frank Parmelee Company, Appellant.
    Gen. No. 23,115. (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 178

      —when limitation of liability in receipt not binding. A limitation of liability in a receipt given by a common carrier for baggage is not binding on the shipper unless assented to.
    2. Carriers, § 564*-—what are questions for jury in action for

      damages for loss of ibaggage. In an action against a carrier to recover for the loss of baggage, where, on a motion to direct a verdict, the evidence did not disclose that plaintiff knew or assented to the limitation of liability contained in the receipt, but admitted that she had heard there was such a limitation, and defendant introduced evidence tending to support the inference that baggage containing articles which plaintiff claimed to have a value of $1,782 would not have been received for delivery at defendant’s risk for the disproportionate fee of 50 cents paid therefor, and that plaintiff stated that the baggage contained glassware and did not mention that it contained valuable jewelry, and was informed that it would be taken at her risk, it is for the jury to determine whether there was fraud in concealing the real character and value of the contents, whether the baggage contained the articles claimed by plaintiff to have been in it and whether there was an express understanding or agreement that it was to be carried at her risk, and in such a case it was error to direct a verdict for plaintiff.

      Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Myrtle Mitchell, plaintiff, against Frank Parmelee Company, defendant, to recover the value of baggage received by defendant for transportation and not delivered. From a judgment for plaintiff, defendant appeals.
    Andrew R. Sheriff, for appellant; Walter M. Krimbill, of counsel.
    Edmund S. Cummings, for appellee.

      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. Presiding Justice Barnes

delivered the opinion of the court.

3. Cabbiees, § 113 —when relieved, from liability as insurer. Fraud may absolve a carrier from its liability as insurer, even though not from liability resulting from negligence.

4. Cabbiees, § 120*—when fraud, relieves carrier from liability as insurer. A common carrier may be relieved from its liability as an insurer by a’ shipper’s suppression of the value of goods delivered for transportation.


text:
    F. W. Phelps, trading as The Pacific Northwest Banker, Appellee, v. La Salle Hotel Company, Appellant.
    Gen. No. 23,123. (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 12

      —when contract does not lack mutuality. Where an order for advertising addressed to plaintiff, which states that plaintiff is “hereby authorized” to insert in plaintiff’s publication, a specified sized advertisement and agrees to pay a specified price, is indorsed “accepted by” plaintiff’s agent, such indorsement constitutes an implied promise of publication in consideration of defendant’s promise to pay for it, so as to render the contract mutual.
    2. Damages, § 66*—what is measure of for breach of advertising contract. In an action on a contract for advertising, in the absence of proof by defendant tending to minimize the damages, the measure of plaintiff’s damages is prima facie the amount called for by the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Howabd Hays, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Action by F. W. Phelps, trading under the name of The Pacific Northwest Banker, plaintiff, against La Salle Hotel Company, a corporation, defendant, to recover on a contract. From a judgment for plaintiff for $200, defendant appeals.
    Henry W. Price and Hugh T. Martin, for appellant. f
    Lloyd D. Heth, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Frank A. Lasley, Appellee, v. Anton J. Cermak, Bailiff, and H. B. Grider, Appellants.
    Gen. No. 23,175. (Not to be reported in full.)
    Abstract of the Decision.
    1. Execution, § 61

      —when becomes lien. An execution becomes a lien on the property on the date it is delivered to the sheriff.
    2. Execution, § 67*—when lien prior to unrecorded chattel mortgage. The lien of an execution which has not been suspended or become dormant by any act of the judgment creditor, or otherwise, is prior, to the rights of a purchaser at a sale under an unrecorded chattel mortgage, possession under which mortgage was taken after the lien of the execution had attach'ed, such mortgage being invalid as against the holders of the execution lien.
    Appeal from the- Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed January 31, 1918.
    Rehearing denied February 11, 1918.
    Statement of the Case.
    Trial of right to property by Frank A. Lasley, plaintiff, against Anton J. Cermak, bailiff of the Municipal Court of Chicago, and H. B. Crider, defendants. From a judgment for plaintiff, defendants appeal.
    Earnhardt & Stafford, for appellants.
    Winston & Lowy, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Harry Linder, Appellant, v. William Dominick and Adolph Millblum, trading as William Dominick & Company, and Joseph Dominick, Appellees.
    Gen. No. 23,182. (Not to be reported in full.)
    Abstract of the Decision.
    Iotants, § 23

      —when person reaching majority may recover money paid on contract. Where one on coming of age does not ratify a contract entered into by him during his minority, but rescinds it, he may recover hack amounts paid by him on such contract during his minority.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here with finding of facts.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Harry Linder, plaintiff, against William Dominick and Adolph Millblum, trading as William Dominick & Company, and Joseph Dominick, defendants, to recover an amount paid on a contract to purchase certain goods. From a judgment for defendants, plaintiff appeals.
    Harry H. Felgar, for appellant.
    No appearance for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Louis Rubin, Appellee, v. Herman H. Newberger, Appellant.
    Gen. No. 23,196. (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 248

      —what does not constitute payment of mortgage notes. After the execution by defendant of a trust deed to secure notes, the property was sold to one who agreed to assume the incumbrance and gave notes secured by a mortgage as part of the purchase price which were transferred to plaintiff by defendant; with knowledge of these circumstances the holder at maturity of the notes secured by the trust deed agreed with defendant to relieve him of liability thereon and so notified plaintiff, but such holder subsequently threatening foreclosure, plaintiff purchased the notes from him, such notes bearing an indorsement that they were subject and subordinate to the lien of any note maturing after their maturity, and thereafter foreclosed and procured a sale under the second mortgage. Held, that the purchase by plaintiff of said notes did not constitute a payment and cancellation of the same.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Louis Rubin, plaintiff, against Herman H. Newberger, defendant, to recover on promissory notes. From a judgment by default for plaintiff, defendant appeals.
    Morris Kompel, for appellant.
    Samuel J. Richman, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Mortgages, § 227 —right of mortgagee to treat mortgagor and grantee assuming mortgage as principal debtors. A mortgagee may treat both the mortgagor and a grantee of the latter assuming the mortgage as principal debtors and have a personal decree against both, unless he has consented to accept the grantee as surety, and his rights cannot he affected by any agreement between the mortgagor and the grantee.

3. Mortgages, § 119*—when notes may be postponed to lien of another mortgage. The holder of mortgage notes may postpone them to the lien of another mortgage.

4. Tendee, § 18*—what is effect of conditional tender of payment. A plea of conditional tender of payment in an action on a promissory note admits that some money was due.


text:
    Robert I. Watson, Appellee, v. Chicago Building Construction Company, Appellant.
    Gen. No. 23,203. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Robert I. Watson, plaintiff, against Chicago Building Construction Company, a corporation, defendant, to recover for services claimed to have been rendered under a contract. From a judgment for plaintiff for $250, defendant appeals.
    J. Ambrose Gearon, for appellant.
    John Lews, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court op Chicago, § 26 —what is not statement of facts. A mere recitation of testimony is not a statement of facts though certified as such.

2. Contracts, § 384*—when shown that agreement completed before reduced to writing. In an action to recover for services claimed to have been rendered under a contract, evidence held to support a finding that the agreement was completed before it was put into writing.


text:
    Joseph O. Kostner, Appellee, v. E. R. Stege Brewery and William J. Dawson, Appellants.
    Gen. No. 23,610. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Forcible detainer by Joseph 0. Kostner, plaintiff, against E. R. Stege Brewery, a corporation, and William J. Dawson, defendants. From judgment on a verdict directed for plaintiff, defendants appeal.
    See E. R. Stege Brewery v. Kostner, 203 Ill. App. 416.
    Mancha Bruggemeyer, for appellants.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses and Henry Jackson Darby, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Forcible entry and detainer, § 31 —When no demand for possession by lessor necessary. After the expiration of a lease without any new agreement or assent of the lessor to a holding over, a demand for possession need not be made upon either the lessee or his subtenant before bringing an action of forcible detainer, especially where the lease contains an express waiver of notice and demand, but the lessor may treat such lessee and his subtenant as trespassers.

2. Forcible entry and detainer, § 73*—When evidence as to intention of tenant to exercise option of renewal is inadmissible. In an action of forcible detainer, evidence of a conversation, prior to plaintiff’s purchase of the premises, between plaintiff and defend-, ant, who was occupying the premises at the time under a lease with option of renewal which had not expired, wherein plaintiff asked if defendant intended to exercise its option and was told by an officer of defendant that it did, is inadmissible where no other proof was offered of the exercise of the option or that tended to establish a privity of contract or relation between plaintiff and defendant prior to the latter’s attornment, which was after the expiration of the option.

3. Vendor and purchaser, § 182*—when statement by lessee to subsequent purchaser of intention to renew lease gives no right of possession. A conversation between a lessee before the expiration of the lease and the option of renewal therein, with one who purchased the property after the option had expired, wherein the lessee stated that it intended to exercise its option, does not confer upon the latter any legal right to possession after the term has expired.

4. Forcible entry and detainer, § 77*—what conveyances admissible in evidence in action by subsequent purchaser against lessee. In an action of forcible detainer against a lessee claiming to hold under an option of extension by one. who acquired the property during the life of the lease and after the expiration of an option of renewal therein, evidence of conveyances, made after the date the option expired, by defendant’s lessor to a third person and of the latter’s lease to plaintiff for a term of years is admissible.


text:
    Louis Weber & Company, Appellee, v. Hot Point Electric Heating Company, Appellant.
    Gen. No. 23,868. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1165

      —when nothing for Appellate Court to review. In the absence of any document preserving in the record the proceedings had at the trial on which the assignments of error are based, there is nothing before the Appellate Court for review.
    2. Appeal and error, § 951*—when affidavit of counsel stricken from, record on appeal. An affidavit of appellant’s counsel purporting to set forth the' proceedings at the trial -will be stricken from the record, on appeal by the Appellate Court on its own motion, where it does not appear to have been a part of the record below.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by iLouis Weber & Company, a corporation, plaintiff, against Hot Point Electric Heating Company, a corporation, defendant. From a judgment for plaintiff, defendant appeals.
    John R. McCabe and D. P. Pennywitt, for appellant.
    Charles R. Napier and Edward Newberger, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Orient Manufacturing Company, Appellee, v. C. A. Channell, Appellant.
    Gen. No. 23,016. (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment—when affidavit in support of motion to vacate judgment of revivor is insufficient. An affidavit in support of a motion to vacate a judgment of revivor, entered by default for want of appearance, which states that the want of appearance was owing to the failure of the stenographer of defendant’s counsel to remind the latter, as directed, to file an appearance and affidavit of merits, but by which it is also disclosed that a clerk in such counsel’s office had, before the return day of the writ, investigated the court’s record for the purpose of preparing an affidavit of defense, does not show due diligence on the part of such counsel nor that defendant had a meritorious defense.
    2. Judgment—when good defense not set forth in affidavit in support of motion to vacate judgment of revivor. An allegation in an affidavit in support of a motion to vacate a judgment of revivor, that defendant was not jointly liable with another defendant and was unaware that no judgment had been entered against the other defendant, does not set forth a good defense.

      Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the March'term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Scire facias by Orient Manufacturing Company, a corporation, plaintiff, against C. A. Channell, defendant, to revive a judgment for $177.25 and costs against defendant. From a judgment for plaintiff, defendant appeals.
    William Friedman, for appellant.
    Edward L. England, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Judgment, § 616 —when on soire facias set aside. Judgment on a scire facias will not be set aside for mere irregularities in the judgment, but only because the judgment was void or has been paid.

4. Municipal Court of Chicago, § 19*—when motion does not lie to vacate judgment. Under section 21 of the Municipal Court Act (Rev. St. ch. 37, J. & A. If 3333), relating to vacation of judgments, a motion made after the expiration of the judgment term and after the overruling of a similar motion made during the term, from which an appeal was taken, will not lie.


text:
    Martin M. Gross, Defendant in Error, v. Lake Shore & Michigan Southern Railway Company and New York Central Railroad Company, Plaintiffs in Error.
    Gen. No. 23,095.
    1. Workmen’s Compensation Act—attorney’s lien upon lump sum payment under Indiana act. Under the Indiana Workmen’s Compensation Act, an attorney’s lien cannot attach to a lump sum payment made under the act by an employer operating thereunder and accepted thereunder by the employee, even though such payment was not approved by the Industrial Board of Indiana.
    2. Workmen’s Compensation Act—right of attorney claiming lien on lump sum payment to object that payment not approved by board. An attorney claiming a lien on a lump sum payment made and accepted under the Indiana Workmen’s Compensation Act cannot object that the payment was not approved by the Industrial Board of Indiana.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed January 31, 1918.

      Glennon, Cary, Walker & Howe, for plaintiffs in error.
    Henry Pollenz, for defendant in error.
   Mr. Justice McDonald

delivered the opinion of the court.

■ By this writ of error it is sought to reverse a judgment entered in favor of the defendant in error, plaintiff below. The action was brought under section 55 of the Lien Act, ch. 82, Rev. St. of Illinois for 1915-16 (J. & A. ¶ 611), on an alleged attorney’s lien.

On February 4, 1916, one Zafirates, an employee of the defendants, was injured in the course of his employment while unloading coal from a car in defendants’ yards at Elkhart, Indiana. On March 29th, the said Zafirates and defendants entered into a settlement agreement whereby, in consideration of the payment of certain sums therein mentioned, the said Zafirates released defendants from all liability on account of said injuries. On April 15th of the same year, by written agreement, he engaged plaintiff, an attorney of Chicago, to prosecute his said claim for damages against defendants, plaintiff’s fee being therein fixed at a sum equal to 50 per cent, of any amount which said Zafirates might recover on said claim. On May 17th plaintiff notified defendants of this agreement and of the fact that by virtue thereof he claimed an attorney’s lien on any amount thereafter paid the said Zafirates on his said claim for damages. On June 26th, defendants and -the said Zafirates executed another agreement, pursuant to which defendants paid him an additional $1,000 as final settlement of his claim for damages under the Indiana Workman’s Compensation Act.

Section 43 of the said Compensation Act provides that whenever any weekly payment has been continued for not less than 26 weeks, the liability therefor may in unusual cases, where the parties agree and the Industrial Board deems it to be for the best interest of the employee or his dependents, be redeemed by the payment, in whole or in part, by the employer, of a lump sum which shall be fixed by the Board. Section 17 of the same statute provides that all compensation, and claims therefor, shall be exempt from all claims of creditors; section 65 thereof requires that fees of attorneys, etc., shall be subject to the approval of the Industrial Board. It is apparent from the latter two sections that if the said payment of $1,000 was made under the provisions of the said Compensation Act, plaintiff would have no lien thereon for his fee, for the reasons, (1) that the act expressly bars such lien, and (2) that plaintiff’s fee was not approved by the Industrial Board of Indiana. Plaintiff contends, however, that said lump sum payment cannot be classed as a settlement under the said act because it was never approved by the Industrial Board, and that hence his lien attached thereto.

The settlement agreement of June 26th between defendants and the said Zafirates expressly recited that the said sum of $1,000 was paid under and by virtue of the said Compensation Act, and there is no evidence in the record to rebut this recital. The fact that this lump sum payment was not approved by the Industrial Board of Indiana can be taken advantage of only by the said Zafirates, and the only question that he could raise would be with reference to the sufficiency of the amount paid as compensation for the injuries sustained. If, upon investigation, the Industrial Board found the amount paid was insufficient, an additional award could be. made, but this would not change the fact,, as recited in the settlement agreement, that the lump sum already paid was under the said Compensation Act.

It appears from the settlement agreement in question that the said Zafirates and the defendants had elected to operate under the Indiana Workmen’s Compensation Act, and that the payment in question was made and accepted thereunder; and inasmuch as no attorney’s lien can attach to any payment made thereunder, the court erred in finding the issues for the plaintiff. Accordingly the judgment will be reversed.

jReversed.


text:
    Congress Hotel Company, Appellant, v. Ella E. Southgate, Individually and as Executrix, Appellee.
    Gen. No. 23,110. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Certiorari denied hy Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Bill by Congress Hotel Company, a corporation, complainant, against Ella E. Southgate, individually and as executrix under the last will and testament of Richard H. Southgate, deceased, to compel the refunding of a certain amount and to impress certain real estate with a trust. From a decree sustaining a general demurrer to the bill and dismissing it for want of equity, complainant appeals.
    Simeon Straus and Ira E. Straus, for appellant.
    Goodrich, Vincent & Bradley, for appellee; Ralph R. Bradley, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 261 —when contracts with director not invalid. The fact that at the time contracts for the procuring of a lease of property, the erection of a building thereon and the floating of a bond issue were consummated and adopted between a corporation and another, the latter was a director of the corporation, does not impair their validity if there was no fraud on his part.

2. Fraud, § 73*—when hill insufficient. General allegations of fraud in a bill amounting merely to conclusions of the pleader are insufficient.

3. Corporations, § 260*—when fraud in making contract with director not shown. Where it appears that a resolution approving a contract between a director and his corporation and authorizing its execution by the proper officers was adopted by the board of directors; that the contract was thereafter executed at a special meeting at which the whole board was apparently present and at which a supplemental agreement was entered into in effect ratifying the prior action of the board, at which time the director only held 100 shares out of the 17,000 shares of stock of the corporation, and no fraud in ratifying the contract is charged, fraud in the making of such contract by reason of the director’s domination of the board is not shown, especially where the corporation not only remained passive as to the contract for a period of 15 years after the alleged domination had ceased, but also, during the latter period, refused to take any action though requested by a stockholder to do so.

4. Corporations, § 261*—when equity will not require refunding of payments made to director under contract. Where an agreement between a director and his corporation has been legally ratified by the directors, acting of their own volition, and spread upon the books of the corporation, and the latter has availed itself of the benefits of the agreement for a period of 15 years, during which time it has paid dividends, equity will not require that payments made to the director in accordance with the agreement be refunded.


text:
    Henry P. Reger, Appellee, v. Ray Behan, Appellant.
    Gen. No. 23,118. (Not to be reported in full.)
    Abstract of the Decision.
    Damages, § 68

      —what is effect of failure of owner to minimize by payment of fine on libeled boat. In an action hy the owner of a boat to recover a fine imposed on such boat while being operated hy defendant and the expenses attendant upon the custody of the boat by federal authorities after it was libeled and .seized for nonpayment of such fine, evidence held to show that plaintiff knew of the imposition of the fine in time to have avoided the additional expenses by paying the fine and to bar any recovery hy him in excess of the amount of the fine.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here with finding of facts.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Henry P. Beger, plaintiff, against Bay Behan, defendant, to recover damages. From a judgment for plaintiff for $110.43, defendant appeals.
    M. L. Igoe, for appellant.
    Charles Hudson, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Fleming M. Watkins, Appellee, v. Southern Railway Company, Appellant.
    Gen. No. 23,127. (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 683

      —when verdict for plaintiff in action for personal injuries not sustained by evidence. In an action under the Federal Employers’ Liability Act by the foreman of a night crew to recover for personal injuries alleged to have been received through the moving of a car by the striking of other cars that were being switched in defendant’s yard, thereby causing defendant to be thrown from such car while he was engaged in locating the cars which were to be switched, pursuant to his employer’s orders, evidence held insufficient to support a judgment for plaintiff.
    Appeal from the Superior Court of Cook county; the Hon. Robert Turney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917,
    Reversed and remanded.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action under the Federal Employers’ Liability Act by Fleming M. Watkins, plaintiff, against Southern Railway Company, a corporation, defendant. From a judgment for plaintiff for $3,000, defendant appeals.
    Kramer, Kramer & Campbell and Pomeroy & Mártir, for appellant; Edward P. Humphrey, of counsel.
    Morse Ives, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Marie L. Wenda, Appellee, v. Anton J. Cermak, Bailiff, Appellant.
    Gen. No. 23,143. (Not to be reported in full.)
    Abstract of the Decision.
    Husband and whte, § 69

      —what does not constitute ‘conveyance which may be attached by creditor of husband. Where a wife, with the consent of her husband and of one who has sold property to her husband, ¡undertakes to pay for it in her own name and gives the vendor a chattel mortgage thereon for the unpaid balance, the - transaction is not a conveyance from husband to wife, but is a resale by the vendor to the wife and cannot be attacked by a creditor of the husband, especially where the latter’s debt was incurred after such resale.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Marie L. Wenda, plaintiff, against Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendant, to recover damages for the conversion of property sold under execution. From a judgment for plaintiff, defendant appeals.
    J. Scott Matthews and Edward B. Lucius, for appellant.
    Elbert C. Ferguson, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Ephriam B. Collins, Appellee, v. Frank Drab, Appellant.
    Gen. No. 23,191. (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court oe Chicago, § 24

      —what is final order. An order denying a motion to vacate a judgment is final and, under section 21 of the Municipal Court Act (Rev. St. eh. 37, J. & A. If 3333), no subsequent motion to vacate it will lie, but the only method of reviewing it is by appeal or writ of error.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Rehearing denied February 7, 1918.
    Statement of the Case.
    Action by Ephriam B. Collins, plaintiff, against Frank Drab, defendant. There was judgment entered by confession for plaintiff for $125 and costs. From an order denying his motion to set it aside, defendant appeals.
    Alfred E. Barr and Frank W. Bigelow, for appellant.
    No appearance for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    W. A. Tull, Appellee, v. F. L. Clarke, Appellant.
    Gen. No. 23,198. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim in action of fourth class for personal injuries is sufficient. Under section 40 of the Municipal Court Act (J. & A. f 3352), a cause of action is sufficiently set forth by a statement of claim in a fourth-class action, which recites that plaintiff sustained injuries, on or about a certain date, in an alley in the City of Chicago, by reason of defendant’s negligence in using a skid which was defective and of insufficient strength to support a certain cask of great weight, and which broke while the said cask was being lowered thereon, injuring plaintiff while walking in said alley and while exercising due care and caution for his own safety. (
    2. Appeal and error, § 365*—necessity of raising question in' trial court. A question not raised in the trial court cannot be raised on appeal.
    3. Damages, § 122*—when verdict for personal injuries not excessive. A verdict for $1,000 for personal injuries cannot be said to be excessive where the evidence tends to show that plaintiff sustained a severe strain of the leg, resulting in chronic arthritis, that his leg was badly swollen for 2 or 3 months after the injury; that he was obliged to use a crutch for some 6 months thereafter; that he limped and had pains in his knee, and up to the time of the trial continued to have chronic arthritis of the knee joint.

      Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by W. A. Tull, plaintiff, against F. L. Clarke, defendant, to recover for personal injuries. From a judgment for plaintiff for $1,000, defendant appeals.
    G-eorge W. Ludden and Frank P. McGinn, for appellant.
    John A. Bloomingston, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

4. Damages, § 192*—discretion of jury in assessment of. In an action to recover for personal injuries, the assessment of the damages rests in the sound discretion of the jury, under the guidance of proper instructions.


author: Mr. Justice Matchett

text:
    Edward M. Willoughby, Receiver, Appellee, v. Security Trust & Deposit Company, on appeal of Security Trust & Deposit Company, Appellant.
    Gen. No. 22,909.
    1. Landlord and tenant, § 18

      —when relation of created 6y attornment to receiver. Where a lessee attorns to a receiver, the relation of landlord and tenant is thereby established, and the lessee cannot thereafter deny the receiver’s title in an action by the receiver to enforce against him a lien given by his lease.
    2. Landlord and tenant, § 336*—when lien of lessor covers safety deposit vaults.. Under a lease which provides that “The improvements to he made upon said premises shall be for use as Safety Deposit Vaults,” and giving a “First lien upon all the improvements upon said premises, or that may at any time be placed or erected thereon,” the lien provided for by the lease covers safety deposit vaults placed on the premises by the lessee.
    3. Landlord and tenant, §' 327*—when solicitor's fees allowed on foreclosure of lien. On foreclosure of a lien given by a lease, solicitors’ fees are properly allowed where the lease provides that the lessee shall pay all costs and solicitors’ fees and expenses arising from the enforcement of its covenants by the lessor.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stoxjgh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed January 31, 1918.

      A. A. Bolf, for appellant; Alvin E. Stein, of counsel.
    Hollett, Sauter & Hollett, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the Security Trust & Deposit Company, one of the defendants below, from a decree of the Circuit Court of Cook county, which foreclosed a lien given by a certain lease upon the leasehold interest thereby conveyed to secure the 'rent therein reserved.

The- original lessor was the Masonic Fraternity Temple Association, which devised a part of its building and premises for a term of 94 years. The interest of the original lessee was by him conveyed to one Dickinson, who in turn conveyed to appellant who thereafter became a tenant under said lease, using the premises for a safe depository business. The greater part of the equipment was placed on the premises prior to the making of the original lease and the remainder was placed therein by appellant after taking possession thereunder.

The complainant, Edward M. Willoughby, was, prior to bringing this suit, appointed receiver for the lessor, Masonic Fraternity Temple Association, by the Circuit Court of Cook county, and by the order appointing him was vested with full authority to collect all rents due from tenants or occupants of the building to the association or its stockholders and to sue therefor in his own name. The order further directed all tenants of the building to attorn to the receiver. Appellant did so attorn in writing and thereafter paid rent to said receiver. Appellant having afterwards made default in the payment of the instalments of rent due, the receiver was by the court ordered to take necessary proceedings in law, or in equity, to enforce the lien provided for by the lease and thereupon began these proceedings.

The cause was .referred to a master and upon his report the decree appealed from was entered. Appellant'first insists that complainant failed to prove such title or interest as gives him the right to foreclose the hen given by the lease because no assignment or conveyance from the original lessor to the receiver was proved. We think, however, that irrespective of the rights which the receiver took by virtue of his appointment, appellant having attorned to the receiver, the relation of landlord and tenant was thereby established and that appellant is now estopped to deny the receiver’s title in this proceeding. Haynes v. Sherwin-Williams Co., 126 Ill. App. 414; Mackin v. Haven, 187 Ill. 480; Fields v. Brown, 89 Ill. App. 287.

Appellants further contend that the decree is erroneous in that it finds that the complainant has a lien in and to the deposit vaults placed by defendant upon the premises. The lease provides: “The improvements to be made upon said premises shall be for use as Safety Deposit Vaults.” It also gives a “First lien upon all the improvements upon said premises, or that may at any time be placed or erected thereon * * We think these provisions covered the property in question. Webster v. Nichols, 104 Ill. 160.

Appellant further complains because the decree in question allows solicitors’ fees and expenses to the complainant. The lease provides: “That the said party of the second part shall pay and discharge all costs and attorneys’ fees and expenses that shall arise from enforcing the covenants of this indenture by the party of the first part.” While the amount of solicitors’ fees in this case would ordinarily be considered large, we think the amount is justified by the evidence. Other errors were urged which we do not deem it necessary to consider. The decree will be affirmed.

Affirmed.


text:
    Harry Staley, Defendant in Error, v. Taylor A. Snow et al., trading as Co-Operative Home Purchasing Society. Taylor A. Snow and George J. Haberer, Plaintiffs in Error.
    Gen. No. 23,033. (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 4

      —when necessity of introduction of evidence to identify parties does not render contract oral one. In an action against certain defendants, doing business as a society, to recover for breach of contract, the fact that the names of the defendants do not appear on the contract, and it is necessary to introduce evidence to identify them as the copartners who did business under the name of the society, does not constitute the contract an oral one.

      Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Harry Staley, plaintiff, against Taylor A.. Snow, George J. Haberer and Charles H. Commons, trading as the Co-Operative Home Purchasing Society, defendants, to recover for breach of a contract. To reverse a judgment for plaintiff, defendants Snow and 'Haberer prosecute this writ of error. The material parts of similar contracts are set out in Harlow v. Snow, 147 Ill. App. 369.
    Mather & Hutson, for plaintiffs in error; Claude R. Church, of counsel.
    Wentworth, Cavender & Kaiser, for defendant in error; David B. Maloney, of counsel.

      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 Matchett

delivered the opinion of the court.

2. Limitation of actions, § 11 —what is test in determining whether ten or five-year statute applies as to contract. In ascertaining whether the ten or five-year Statute of Limitations is applicable in an action on a contract, the test is whether the contract sued on was in writing or oral, and if the promise is in fact, oral, it is immaterial that it arose in the first instance out of a written contract.

3. Limitation of actions, § 12*—when contract oral and governed by five-year statute. An action to recover purchase money paid under a contract which contains no specific promise to return the purchase money, rests upon an implied promise which, being oral, is governed by the five-year limitation.

4. Appeai, and ebbob, § 1236*—when not considered on appeal that damages were assessed on theory that action was for return of purchase money. Where the statement of claim does not clearly state the breach of contract relied on, but does not purport to be for the return of purchase money paid thereunder, and defendant does not seek a better statement and no propositions of law are submitted, and the damages assessed, though equivalent to the amount paid in by plaintiff, are also the amount which, prima facie, he was entitled to recover as damages for the breach, it will not be held on appeal that the damages were assessed on the theory that the action was for the return of the purchase money.


text:
    Elizabeth Lieneman, Defendant in Error, v. Crown Auto Livery, Plaintiff in Error.
    Gen. No. 23,080. (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Richabd S. Ttjthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Elizabeth Lieneman, plaintiff, against Crown Auto Livery, a corporation, defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Abstract of the Decision.
    Appeal and ebrob, § 1744

      —when judgment affirmed. Where the motion of defendant in error to strike the bill of exceptions is granted and the only errors assigned and argued relate to the matters preserved by the bill, the judgment of the trial court will be affirmed.
    F. J. Karasek and P. B. Levitón, for plaintiff in error.
    H. El. Wynekoop, for defendant in error.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Ernest N. Braucher, Appellee, v. Board of Examiners of Architects of the State of Illinois, Appellant.
    Gen. No. 23,106. (Not to be reported in full.)
    Abstract of the Decision.
    1. Certiorari, § 47

      —what considered, on return to common-taw writ of. On a return to the common-law writ of certiorari, the court does not consider or weigh the evidence but examines the record solely for the purpose of inquiring, first, whether the inferior tribunal has exceeded its jurisdiction, and, second, whether it has proceeded illegally.
    2. Architects and engineers, § la*—when citation in proceeding to revolee architect’s certificate is insufficient. A citation issued in a proceeding to revoke an architect’s license on the grounds of gross incompetency in the construction of buildings and of dishonest practices as a licensed architect is insufficient where it sets forth that the incompetency was ill connection with the sale of four sets of plans of two buildings, but affirmatively alleges that he did not draw the plans and did not supervise the drawing, and fails to allege that he approved them, while it does allege that he knew that the plans were improperly and insufficiently drawn for the purposes for which they were intended.

      Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Toebison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Petition by Ernest N. Braucher, petitioner, against the Board of Examiners of Architects of the State of Illinois, respondent, for a common-law writ of certiorari. The judgment sustained the writ and ordered that the record of the respondent finding petitioner guilty of gross incompetency and dishonest practice and revoking his license as an architect be quashed. From the judgment on the return to the petition, respondent appeals.
    Edward J. Brundage and John J. Falvey, for appellant.
    Thornton & Chancellor, for appellee.

      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 Matchett

delivered the opinion of the court.

3. Architects and engineers, § la —what does not constitute dishonest practice 6y architect. A single transaction, although consisting of the sale of four sets of plans of two buildings, does not constitute “dishonest practices’’ within the meaning of the Architects’ Licensing Act (J. & A. K 484).

4. Architects and engineers, § la*—when citation in proceeding to revolee architect’s license is insufficient. A citation issued in a proceeding to revoke an architect’s license for “dishonest practices” is insufficient where it fails either to allege a fraudulent intent on his part or to set up facts from which such fraudulent intent may be inferred.