author: Mr. PRESIDING Justice Duncan

text:
    Fort Dearborn National Bank, Defendant in Error, v. A. W. Miller, Plaintiff in Error.
    Gen. No. 17,199.
    1. Municipal court — affidavit of merits. Where defendant’s affidavit of merits is stricken more than a month before the trial and an amended affidavit is not filed in ten days as ordered, it is within the court’s discretion under the court rules to deny an application to file an amended affidavit at the trial.
    2. Municipal court — default. In the municipal court, where defendant’s affidavit of merits was stricken more than a month before trial, no amended affidavit was filed within ten days as ordered and permission to file an affidavit offered at the trial was denied, defendant is in default and cannot legally offer evidence upon any matter of defense requiring special pleadings.
    3. Guaranty — what defenses must be pleaded. In an action on a continuing collateral guaranty, the fact that no action was brought against the original debtor and that no notice of his default was given, if a defense at all, is a defense which must be specially pleaded.
    4. Guaeanty- — defense of lack of notice. In an action against a guarantor, where the defense is that no action was brought against the principal debtor and no notice of default was given, the plea and proof must declare and show loss or damage from lack of notice.
    5. Guaranty — notice of default of principal debtor. Where a guarantor who signed a collateral guaranty in behalf of a certain company was an officer of the company, he is chargeable with notice of the failure of the company to pay notes which he signed and which were given for money loaned in reliance on the guaranty.
    6. Guaranty — legal action against principal debtor not necessary. A person who lends money as authorized by a continuing guaranty is not bound to institute legal proceedings against the principal debtor before bringing action against the guarantor, and such person has a right in good faith to discontinue any action begun.
    7. Guaranty — presumption of good faith when action against principal debtor discontinued. In an action against a guarantor, good faith in discontinuing any action begun against the principal debtor is presumed until rebutted.
    Error to the Municipal Court of Chicago; the Hon. Harry Orson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed March 26, 1913.
    Nicolas J. Pritzker, for plaintiff in error.
    RiNGee, Wilhartz & Louer, for defendant in error.
   Mr. PRESIDING Justice Duncan

delivered the opinion of the court.

On July 11,1910, Fort Dearborn National Bank sued A. W. Miller on a written guaranty signed by Frank A. Nibloek, F. O. Bruske and A. W. Miller, addressed to said hank and dated March 19, 1908, and in the words following, to wit:

“The undersigned, being interested in the business success of Northern Ice Co., and desiring to assist it in obtaining credit with you and money from you, hereby request and authorize you to extend or advance to the said Northern Ice Co. such credit, accommodation and money as it may from time to time request or make application for, and in case yon shall at any time purchase of or discount for said Northern Ice Co. any note or notes, hill or hills, or advance to it any money in any manner or upon any account, we do hereby promise and agree to pay the same, and do hereby guarantee full payment to you at maturity of any such note or notes, bill or bills, purchased or discounted by you as aforesaid, together with any sum or sums of money obtained by the said Northern Ice Co. from you in any wise, together with the interest thereon. And we hereby consent to any extension or extensions of payment or other accommodations you may make to said Northern lee Co. And we do hereby waive any notice of the acceptance of this guaranty or the obtaining of any money by it from you and of any extension of time for payment which you may make at your discretion ; Provided, however, that we shall not be called upon to pay by virtue hereof more than Seven Thousand Dollars in the aggregate. ’ ’

A trial by jury was had and at the close of all the evidence the court directed a verdict and entered judgment for $5,500 in favor of the bank. Mr. Miller prosecutes this writ of error.

The facts upon which the verdict and judgment were entered are that, relying upon said guaranty, defendant in error loaned the Northern Ice Company the sum of $6,500, evidenced by three notes at $2,500, $3,000 and $1,000, dated March 19, 1908, March 25, 1908, and May 18, 1908, respectively, all payable ninety days after date and providing for 7% interest from maturity and 5% as attorney fees. The first two notes were signed by the Northern Ice Company and Prank A. Niblock, president, and A. W. Miller, secretary, and the last note by the Northern Ice Company and P. O. Bruske, treasurer. In June, 1909, the ice company having failed to pay the notes, plaintiff in error acknowledged to defendant in error that he owed the notes on said guaranty, and agreed to and did pay $1,000 in cash and agreed to pay the balance $500 per month thereafter, but at the date of this suit he had only paid altogether $1,500. There was more than $5,500 dne defendant in error on the notes as principal, interest and attorney fees on the day of the trial.

An affidavit of merits was filed by plaintiff in error setting forth, in substance, that defendant in error had lost its right to recover against plaintiff in error on said guaranty, because it had negligently failed to sue the Northern Ice Company for a long time, and that there was a change in the financial standing of said ice company from the time that defendant in error might have sued it to what its standing was when this suit was brought, and that defendant in error never did recover, or attempt to recover, judgment against the ice company. The foregoing affidavit of merits being stricken from the record for insufficiency more than a month before the trial, on the trial another affidavit of merits was offered setting up the same matter, and also a further matter of defense that defendant in error sued the ice company in attachment and without notice to plaintiff in error and without his consent released the attachment, and had judgment theretofore entered in said suit vacated. The court refused to allow said affidavit to be filed, and the trial proceeded without any further affidavit of merits being filed by plaintiff in error. Plaintiff in error offered evidence tending to support the defense outlined in his second affidavit of merits, but the court excluded the evidence on objections thereto by defendant in error.

The rules of the Municipal Court provide that in this class of actions the affidavit of merits shall be filed in lieu of pleas now provided for in the Municipal Court Act and within the time allowed for such pleas, and that in case the defendant fails to file such affidavit within the time allowed by the court that plaintiff shall be entitled to a judgment by default upon the plaintiff’s affidavit of claim, or upon such further evidence as the court may require. The court had ruled plaintiff in error to file an amended affidavit of merits, within ten days after the first affidavit of merits had been declared insufficient, and plaintiff in error was clearly in default in that regard at the time his second affidavit of merits was presented for filing. It was within the discretion of the court to allow or deny the application to file the affidavit of merits on the trial, and the court would have been justified in denying’ such application had the affidavit stated a g’ood defense. No complaint is here made against that ruling. The action of the trial court in matters within its discretion will not be disturbed on appeal, unless such discretion has been abused. Anderson Transfer Co. v. Fuller, 174 Ill. 221.

Plaintiff in error was clearly in default for want- of a plea or affidavit of merits, and was not in a position to legally offer any evidence upon any matter of defense requiring special pleadings by him. In a suit on a collateral continuing guaranty, such as was sued on in this case, a prima facie case is made when the plaintiff makes proof of the indebtedness and the guaranty, and the fact that no suit was brought against the original debtor and that no notice was given to the guarantor of the default of the principal debtor, if a defense at all, is such a defense as must be specially pleaded by the guarantor. The plea and the proof must also further declare and show that the guarantor sustained a loss or damage resulting from a failure of the creditor to give him such notice. Taussig v. Reid, 145 Ill. 488; Swisher v. Deering, 204 Ill. 203; Mamerow v. National Lead Co., 206 Ill. 626; Heaton v. Halbert, 4 Ill. (3 Scam.) 489.

The affidavit of merits and the proof offered did not charge and prove or tend to prove that plaintiff in error suffered loss by reason of the failure of the defendant in error to give notice of the default, or to proceed with the suit and judgment in the attachment case. The proof offered tends to show that on the day the suit in attachment was brought the ice company made a general assignment for tire "benefit of creditors. Perhaps, for this very reason, the attachment was released and the judgment vacated. At any rate, it was not averred or proved that any lien was secured by the attachment or that the judgment would have placed the bank upon any better footing than any other creditor of the ice company. It also appears from the evidence that plaintiff in error was an officer of the ice company, its secretary, and signed two of the notes as secretary. He certainly was in a position to know all about the financial condition of the ice company, and ought to be chargeable with such notice. Mamerow v. National Lead Co., supra.

The defendant in error was not bound to institute any legal proceedings against the ice company, and it had a right to discontinue any suit begun by it, if it did so in good faith. Taussig v. Reid, supra; Bank of Montpelier v. Dixon, 4 Vt. 587. Good faith and fair dealing will be presumed until the contrary is shown.

The judgment of the lower court is clearly right and it is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Duncan

license: Public Domain

text:
    Marie Stevens, Defendant in Error, v. Chicago Feather Company, Plaintiff in Error.
    Gen. No. 17,210.
    1. Master and servant — instructions. In an action t>y a milliner for alleged breach of the contract of employment, where defendant alleges that the employment was conditioned on the character of the work, failure on request to instruct that incompetency, if shown, is a defense, is error where there is evidence upon which to base the instruction.
    2. Instructions — evidence. Instructions not based on the evidence are erroneous.
    3. Contracts — provision that worh must he satisfactory. If a milliner is employed for so long a time as her work is satisfactory she may he discharged at any time her services are not satisfactory to her employer.
    4. Damages — duty to lessen, on illegal discharge from, employment. If a milliner employed for a specified time at certain wages is illegally discharged on refusal to go to another store at the same wages before the expiration of such time, it is her duty to lessen the damages by accepting similar employment at the best wages she can obtain for the time of the discharge, and she is not warranted in refusing to go to such store after discharge and in accepting employment at another place at less wages unless she shows that work in such store would damage her reputation as a milliner.
    5. Instructions — when jury must he accurately instructed. Where the sole witness for a plaintiff is contradicted by two witnesses, the jury must be accurately instructed as to the law.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed March 26, 1913.
    Harry C. Levinson and W. S. Johnson, for plaintiff in error.
    J. E. Iptgram, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

A verdict and judgment were rendered in this case in favor of Marie Stevens in the sum of $310 for breach' of contract of employment by Chicago Feather Company, who sued out this writ of error.

Defendant in error testified, in substance, that she was a designer and trimmer of ten years’ experience and was employed as such by plaintiff in error for the season ending July 1,1910, to make models of hats and trim them and to create new styles for its millinery trade, and that her employment was to begin February 28,1910; that she was discharged by plaintiff in error about April 1, 1910, on her refusal to go on the west side and work for another party in the same business at the request of Mr. Blazer, president of plaintiff in error, and who claimed to have an interest in the west side store; that she refused to leave its store on State street and work in the west side store, because the business on the west side was not first class and that, as she was a first class trimmer and designer, she preferred to remain on State street in a first class store; that she was employed from April 4th to July 1, 1910, in the French Shop, 17 Congress street, and received as wages thirty dollars a week for that time, being out of employment three days before her latter employment, and that plaintiff in error had not paid her for the last three days’ work with it and that it offered to pay her twenty-five dollars therefor, and that she declined to receive it.

Plaintiff in error admits that it employed defendant in error and that it owed her twenty-five dollars for her last three days’ work, but insisted that the terms of her employment were fifty dollars per week for as long as she should do satisfactory work for it, and that she accepted those terms, stating that she was willing to take a chance of meeting the company’s approval of her work; that her. work was not at all satisfactory and that Mr. Blázer so informed her, and then told her he had an interest in the west side store and requested her to go there and work where the trade was not so exacting in styles and trimmings, and that he would pay her the same price at that store and that she absolutely refused so to do; that she failed to do first class designing and trimming according to the demands of the trade on State street; that her hats had too much sameness and the plumes were all put on the same way, and that she was repeatedly told of it; but could not, or did not, do better work. Plaintiff in error supported its defense by two witnesses, Mr. Blazer and Miss Becky Rosenberg, its manager.

The law implies a contract upon the part of an employe that he or she is competent to discharge the duties for which he or she is employed, and a breach of such a contract will warrant his or her discharge. 26 Cyc. 989; 20 Am. & Eng. Ency. of Law, 29.

If an employe represents that he is a first class workman in any trade and is employed upon that statement with the mutual understanding of himself and his employer that his employment is by reason of such representation, and is to continue only on condition that first class work be done, the incompetency of such employe, when shown, or his failure to do first class work, constitutes a breach of an express contract which will likewise warrant a discharge of the employe. The court failed on request of plaintiff in error to charge .the jury that incompetency of defendant in error, if shown by the evidence, was a defense, as there was evidence upon which to base the instruction.

The court also erred in instructing the jury that, if they believed from the evidence that sending defendant in error over to West Madison street “out of his employment” was a subterfuge to have her break the contract, then she had a right to insist that she stay, etc., because there was absolutely no evidence upon which to base any finding that any such a subterfuge was resorted to, or attempted, by plaintiff in error, or any one for it. Instructions must be based on the evidence of the case. Aurora, Elgin & C. R. Co. v. Gary, 221 Ill. 29.

If her contract of employment was at fifty dollars per week for as long as her work was satisfactory, she could be legally discharged at any time her services were not satisfactory to plaintiff in error, and the court so instructed the jury. International Harvester Co. v. Boatman, 122 Ill. App. 474; Kendall v. West, 196 Ill. 221.

Defendant in error could not be sent to another store and out of plaintiff in error’s employment, if working in the other store would so damage her reputation as a first class trimmer and designer as to entail financial loss to her in her future employment in her trade. It was her duty to lessen the damages she sustained by accepting similar employment at the best wages she could obtain for the time of her illegal discharge, if it was illegal, and she was not warranted in refusing to go to the west side store at fifty dollars per week after her discharge and in accepting employment at another place at thirty dollars per Week, except upon a proper showing by her as herein indicated.

A jury should pass upon this case under proper instructions, and we will not, therefore, consider the other error assigned, that the judgment is not supported by the weight of the evidence. Where the sole witness for a plaintiff is opposed and contradicted by two witnesses, as in this case, the jury must be accurately and properly instructed as to the law. Otherwise, there would be no verdict based upon a correct conception of the law.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Steve Sabo, Plaintiff in Error, v. Steve Nimett, Defendant in Error.
    Gen. No. 17,252.
    1. Statute oe frauds — collateral agreement. Where plaintiff sells defendant a saloon and as part of the consideration defendant agrees to pay certain debts of plaintiff, tbe contract is not within the statute of frauds and it is immaterial to whom the consideration is paid.
    2. Coiítbacts — 'for benefit of third person. Where one party for valuable consideration agrees to pay the debts of the other, third persons to whom the second party is indebted may maintain an action for breach of the contract.
    3. Evidence — when bill of sale does not exclude parol evidence. Where plaintiff sells defendant a saloon and the bill of sale does not recite or purport to recite the contract between the parties, parol evidence is admissible to show that as part of the consideration defendant agreed to pay certain debts of plaintiff.
    4. Biel of saie — when consideration may be explained. A bill of sale is an instrument of conveyance like a quitclaim or warranty deed and the consideration may be explained, varied or contradicted to the same extent as if it were simply a receipt for the purchase money.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed March 26, 1913.
    Harry C. Leemon and Charles Y. Clark, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This was an action of the fourth class under the Municipal Court Act by Steve Sabo to recover $200 against Steve Nimett for debts of Sabo assumed by Nimett as part consideration of a sale of a stock of merchandise to Nimett by Sabo, which debts Sabo was compelled to pay. In a trial without a jury the court made its finding for Nimett and entered judgment against Sabo, who prosecutes this writ of error.

To maintain his suit plaintiff in error put in evidence a bill of sale in the ordinary form, executed by himself to defendant in error and Mike Nenanasi, dated December 14, 1909, reciting that in consideration of $383.67, in hand paid, the receipt whereof was thereby acknowledged, that plaintiff in error thereby bargained, sold and delivered to defendant in error, all right, title and interest in a certain stock of liquors, cigars, tobacco and all other merchandise in a certain saloon, with certain fixtures, tools and glassware thereto belonging, located at southwest corner of Cottage G-rove avenue and 93rd street, Chicago. He also offered, but the court would not allow him, to prove by himself and several other witnesses, that he had on the said day and just preceding the execution of the bill of sale contracted orally with the defendant in error and Mike Nenanasi to sell them the said saloon contents for the price of $1,450, said sum to he paid as follows: $383.67, cash, upon delivery of a hill of sale; also $700 to he used hy them in discharging certain notes given hy plaintiff in error as part purchase price of the said business, and the balance of $366.33 to he used hy them in paying certain open accounts owed hy him in connection with said business, and that a list of said open accounts was prepared and added hy him during the negotiations and was hy him delivered to them, and that they agreed to pay for said saloon contents to plaintiff in error and for plaintiff in error said sum of $1,450 in the manner aforesaid; that they and plaintiff in error then went to the office of one Hilhrig to have a bill of sale prepared in accordance with the terms of said contract and that defendant in error related to Hilbrig the said particulars of the verbal agreement, and that Hilhrig prepared the hill of sale as aforesaid, omitting to mention therein the open accounts, because too numerous for enumeration in the blank space in the blank hill of sale used, and because said Hilbrig said it was not necessary to mention them in the hill of sale as defendant in error and Nenanasi would he hound to pay them any way, and that the bill of sale was for said reasons so executed and delivered; that he received from said grantees the said cash sum mentioned and that they took possession of the property in pursuance of said agreement; that shortly thereafter Nenanasi conveyed his interest to defendant in error who has since paid said sum of $700 and approximately $100 of said open accounts, hut refused to pay the remainder thereof of more than $200; and that plaintiff in error then paid said $200 balance and demanded repayment thereof to him of defendant in error who refused to repay same. Plaintiff in error also offered proof to the effect that defendant in error had since the execution of said bill of sale stated to others that their oral contract for sale was as aforesaid, that he owed the open accounts and would pay them and that he did pay a large part of them.

Only one error is relied on here by plaintiff in error for the reversal of said judgment, the refusal of the court to hear and consider the rejected evidence above recited. No brief or argument has been filed by defendant in error. Plaintiff in error states in his argument that the court rejected the offered evidence oh two grounds, (1) that the statute of frauds was violated by the agreement sought to be proved, and (2) that to permit the proof to be made would allow the contents of a written instrument to be varied by parol evidence. The ruling of the court cannot be sustained upon either ground stated, nor apparently upon any other grounds. The ruling of the court is clearly based upon a misconception of the law. Such a contract made by one party wi£h a second party for a valuable consideration, whereby the first party agrees to pay the 'debts of the second party to third parties, is not within the statute of frauds and need not be in writing. It is an original independent promise supported by a valuable consideration for the benefit of third parties, upon which the third parties may maintain actions for the breach. In such a contract, as now before us, it is wholly immaterial to whom the consideration is to be paid by the second party, whether all to the fifist party, or all to a third party, or part to the first party and part to a third party, so far as the application of the statute of frauds is concerned. The promise of the first party is that he will pay the consideration or price named for the goods, as directed by the first party, and to allow him in such a case to defeat his promise by pleading the statute of frauds would lead to the ridiculous holding that the second party could defeat his own promise and his own debt by invoking the statute of frauds, for the part of the consideration promised to the third party is as much the debt of the first party as it is of the second party. Wilson v. Bevans, 58 Ill. 232.

The bill of sale does not in any part of it recite or purport to recite the contract of the parties for the sale of the saloon contents. It is not itself the contract, not any more than an ordinary quitclaim or warranty deed in the usual form is the contract for the sale of the real estate therein named. The bill of sale was simply an instrument or deed of conveyance in which the real contract was not stated. No attempt was made to contradict or vary the terms of the bill of sale, except in so far as it recited and receipted for the purchase money of the property. The consideration in such deeds may be explained, varied or contradicted to the same extent that it could be if it was simply a receipt for the purchase money. This doctrine is well established. Riddle v. Hudgine, 7 C. C. A. 335, 58 Fed. 493; Huebsch v. Scheel, 81 Ill. 281; Booth v. Hynes, 54 Ill. 363; Mann v. Smyser, 76 Ill. 365; Koch v. Roth, 150 Ill. 212; Redmond v. Cass, 226 Ill. 120.

The judgment of the court is reversed and the causé remanded.

Reversed and remanded.


author: Mr. Justice Baume

text:
    Charles A. White, Defendant in Error, v. Pacific Coast Casualty Company, Plaintiff in Error.
    Gen. No. 17,141.
    1. Agency — when principal is not a party to contracts made by agent. Where tfie general agent of defendant casualty company, who is paid a commission of thirty per cent, of the premiums for his services in soliciting and securing business, agrees to pay plaintiff a part of his commissions on indemnity insurance secured by plaintiff, and such an agreement is made without the knowledge of defendant, it is made by the agent in his personal capacity and defendant is not a party.
    2. Appeals and errors — when judgment is inconsistent with special findings. A judgment against defendant casualty company for commissions which its agent promised to pay plaintiff is not sustained where the special findings of fact by the jury show the agreement was made by the agent in his personal capacity and not in behalf of defendant.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of facts.
    Opinion filed March 26, 1913.
    Thornton & Chahcellob, for plaintiff in error.
    G-orham & Wales, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Defendant in error recovered a verdict and judgment against plaintiff in error in the Municipal Court for $1,000 for commissions alleged to be due him upon certain indemnity insurance policies issued by plaintiff in error.

In 1906 the president of plaintiff in error appointed Hiram S. Warner as its general agent for certain territory with headquarters in Chicago. Warner was unfamiliar with the business of soliciting and writing indemnity insurance and communicated with defendant in error, who had considerable experience in that branch of the insurance business, with a view to securing his services in soliciting such business and instructing him as to the proper method of conducting the same. By the terms of the agency contract between plaintiff in error and Warner, the latter was to be paid a commission of 30 per cent, of the premiums for his services in soliciting and securing such business.

It was finally agreed between Warner and defendant in error that the latter should receive for his services a commission of 20 per cent, of the premium, to be paid to him by Warner out of his commission of 30 per cent., and defendant in error then solicited and secured certain indemnity insurance from the White City Construction Company for a premium of '$6,000, payable in three equal instalments, and a policy was issued therefor by plaintiff in error. Out of the first instalment of premium of $2,000, defendant in error was paid a commission of $400 by "Warner. Thereafter, by mutual agreement between Warner and defendant in error, the commission to be paid defendant in error was fixed at 15 per cent, of the premium, or one-half of the amount received by Warner, and defendant in error solicited and secured other indemnity insurance, policies for which were issued by plaintiff in error. In each instance the premium was paid by check of the insured, payable to plaintiff in error and delivered by defendant in error to Warner, who remitted the same to plaintiff in error, less his commission of 30 per cent. Upon the refusal by Warner to pay to defendant in error commissions to the amount of $1,027.50, claimed to be due him, he brought suit in the Municipal Court against Warner and plaintiff in error to recover the same. On motion of defendant in error the suit was dismissed as to plaintiff in error and the bill of particulars or statement of claim was amended as for a balance due defendant in error from Warner “for commissions in soliciting and procuring * * certain applications for indemnity or casualty insurance at the special instance and request of’’Warner, and said suit proceeded to judgment against Warner for $1,000, which judgment remains wholly unsatisfied, Warner having been adjudged a bankrupt. This suit was then instituted by defendant in error against plaintiff in error to recover the same items of commission, and resultéd in a verdict and judgment against plaintiff in error, as heretofore stated.

Relative to the commissions involved, defendant in error testified in the case at bar that Warner said: “Tour commissions will be paid by the company. I will guaranty that.” This statement is denied by Warner, and there is no evidence tending to show that any officer or agent of plaintiff in error, other than Warner, knew that defendant in error solicited any business for it.

The -joint and several liability of plaintiff in error and Warner is asserted upon the ground that the contract with defendant in error was made by Warner, as general agent of plaintiff in error, his disclosed principal, whereby plaintiff in error became liable, to or for which liability Warner superadded his personal liability.

Upon the trial of the suit against Warner, defendant in error testified that during the time in question he worked for Warner under an arrangement whereby he was to receive a proportion of the profits made by Warner in placing casualty insurance.

In the case at bar, the jury returned a general verdict against plaintiff in error and also found specially that at the time that Warner made the arrangement with defendant in error to assist him in writing liability insurance for plaintiff in error, Warner told defendant in error that if the latter would so assist him, he, Warner, would give defendant in error the biggest share of his, Warner’s commission; that he, Warner, received 30 per cent, and he would give 25 per cent, of it to defendant in error; that defendant in error replied that he did not want all of Warner’s commission, but would be satisfied with 20 per cent, and Warner agreed to give him 20 per cent.; that this was the agreement and understanding under which defendant in error assisted Warner in writing liability insurance for the White City Construction Company. It is not controverted that the further services of defendant in error in soliciting and procuring other indemnity policies were rendered in pursuance of the same arrangement, except as to the amount of his compensation, which it was agreed should be 15 per cent, of the premium, or one-half of the commission received by Warner from plaintiff in error.

The special finding of facts by the jury is inconsistent with the general verdict and conclusively establishes that the agreement in question with defendant in error was made by Warner in his personal capacity, and not for and in behalf of plaintiff in error, and that plaintiff in error was not a party thereto and is not bound thereby. It is not pretended that plaintiff in error had any knowledge or information as to the services performed by defendant in error or his employment by Warner, and the terms of his employment by Warner, whereby he was to be compensated for his services, not by plaintiff in error, but by a division of the commissions accruing and paid to Warner, exclude any inference that plaintiff in error was a party to the agreement.

The conclusions above stated preclude a recovery by defendant in error in this case, and it is, therefore, unnecessary to discuss and determine other questions argued.

The judgment is reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed with finding of facts.

Finding of facts: We find as ultimate facts that the alleged agreement, whereon the judgment here involved was recovered against plaintiff in error, was entered into by and between defendant in error and one, Hiram S. Warner, in his personal capacity, and that plaintiff in error was not a party to said agreement or bound thereby and is not hable to defendant in error thereon.


author: Mr. Justice G-raves

text:
    Rudolph Van Hessen, Plaintiff in Error, v. Joseph Defrier, Defendant in Error.
    Gen. No. 17,184.
    1. Landlord and tenant — when verdict for tenant in action for rent not supported. In an action for rent, a verdict for defendant is not supported by tbe evidence -where plaintiff makes a prima Sacie case entitling him to judgment for at least two months’ rent, the evidence under the defense that the premises were used as a house of ill fame with plaintiff’s knowledge and consent does not show a use not wholly consistent with the proper use of such premises as a hotel, for which the lease expressly provided, and there is no proof tending to show knowledge by the landlord of improper use or of circumstances tending to show such use.
    2. Landlord and tenant — evidence of improper use of premises 6y tenant to avoid payment of rent. A tenant should not be allowed to avoid payment of rent on the ground that the premises were used by him for some unlawful purpose unless the evidence as to such use at least shows a state of facts inconsistent with the lawful use thereof.
    Error to the Municipal Court of Chicago; the Hon. Michael P. Girten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed March 26, 1913.
    0 ’Donnell, Dillon & Toolen and L. W. Carpenter, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice G-raves

delivered the opinion of the court.

Plaintiff in error began in the Municipal Court a suit to recover rent due him for premises occupied by defendant in error, under a lease providing for the use of such premises for “saloon, residence and hotel purposes.” The amended affidavit of merits filed on behalf of the defendant on September 21, 1910, and signed and sworn to by his attorney, states his defense to be “that during tbe months of July and August, 1911, and before continnonsly since defendant leased said premises in question 9170 Harbor avenue were used as a bouse of ill fame and prostitution of tbe knowledge of plaintiff and witb bis knowledge and consent.” Tbe ease was tried by a jury and resulted in a verdict and judgment for tbe defendant. Tbe defendant in error bas filed no argument. From tbe record in this case it appears that on tbe trial plaintiff in error, by bis evidence in chief, made a 'prima facie case entitling him to a judgment for at least two, if not three, months’ rent at $100 per month. It further appears that tbe defendant did not prove bis defense, as set out in tbe affidavit of merits above quoted, even assuming that it means that tbe premises bad been used by tbe defendant as a bouse of ill fame and prostitution, witb tbe knowledge and consent-of tbe landlord.

If tbe affidavit of merits was true, it is safe to assume tbe defendant knew tbe fact. Whether bis failure to come forward and support bis defense by bis testimony was because be was disinclined to lie about it, or ashamed to tell tbe truth, either of which conditions would be to bis credit, tbe result is tbe same. Tbe verdict is not supported by tbe evidence.

Tbe defendant did take tbe stand in bis own behalf and testified that since May 1, 1910, tbe premises bad not been used as a bouse of ill fame; that before that date be bad seen women and men in bis saloon, bad seen them go upstairs and enter rooms together and when they came out they bad given tbe landlady a dollar; that be bad never mentioned such things to tbe landlord and that tbe landlord was not present when tbe men and women bad gone to or come from tbe rooms. There is no proof of whether these men and women occupied tbe rooms they entered an hour or a day, whether tbe rooms were bed rooms, living rooms or dining rooms, or whether tbe persons were husband and wife, or that they were persons of loose morals or of bad repute, or of any other fact or circumstance not wholly consistent with the proper use of the premises as a hotel, which was one of the express purposes for which the building was leased. While it is said to be true that these circumstances are also consistent with the use of the premises as a house of ill fame, there is no proof whatever even tending to show that the landlord knew anything about such circumstances, or of the improper use of such rooms or premises. Before a tenant should be allowed to avoid payment of rent, because of the use of the premises by himself for some unlawful purpose, the evidenóe as to the use the same have been put to should at least show a state of facts inconsistent with its lawful use.

The judgment is, therefore, reversed and the cause is remanded to the Municipal Court.

Reversed and remanded.


text:
    Rudolph Van Hessen, Defendant in Error, v. Joseph Defrier et al., Plaintiffs in Error.
    Gen. No. 17,268.
    1. Landlord and tenant — when subletting without consent not controlling in action to terminate lease. In forcible detainer to recover possession of leased premises on the ground that use thereof as a house of prostitution was permitted by the tenants, it is of no consequence whether the one in possession is a sublessee or a partner of a sublessee except in determining an issue concerning the alleged subletting of the premises without the' landlord’s consent, and such issue is not controlling.
    2. Appeals and errors — instructions. In forcible detainer defendant is precluded on appeal from asserting that an instruction as to the degree of proof necessary to a recovery was erroneous where he presented a request for an instruction on such point, and was informed that a like instruction had been practically given.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding, Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed March 26, 1913.
    Rehearing denied April 24, 1913.
    William L. Martin, for plaintiffs in error.
    O ’DoNNEll, DilloN & Toolek, for defendant in error.
   Mr. Justice Baume

delivered tlie opinion of the court.

In an action of forcible detainer, instituted in the Municipal Court by defendant in error against plaintiffs in error, the jury returned a verdict finding plaintiffs in error guilty of unlawfully withholding from defendant in error the possession of the premises described in the complaint and that the right to the possession of said premises was in defendant in error, and judgment was entered upon such verdict.

On March 1, 1906, defendant in error leased the premises known as No. 9170 Harbor avenue in the city of Chicago to one G-ust. Anderson, for a term ending April 13, 1912, and with the consent of defendant in error said Anderson sublet said premises to plaintiff in error, Joseph Defrier, who entered into possession of the same and conducted, among other things, a saloon there. On October 6, 1910, Defrier appears to have contracted to sell or to have sold his property in the premises and the good will of his business to plaintiff in error, Peter Fekete, who, with his wife, plaintiff in error, Anna Fekete entered into possession of the premises, without the written consent of defendant in error. The lease was sought to be terminated and possession of the premises recovered upon the ground that the same had been used and permitted to be used by plaintiffs in error as a “Bawdy house or house of prostitution.”

The brief and argument filed on behalf of plaintiffs in error wholly fails to comply with the rules of this court, and in some particulars it is unintelligible. The judgment might well be affirmed for failure to file a proper brief and argument, but we have concluded to attempt a review of the record, notwithstanding such failure.

It is urged that there is no competent proof of service of notice to quit or demand for possession upon plaintiff in error, Defrier, as required by statute. There is evidence tending to show, and the jury were warranted in finding, that a formal and timely notice in writing was delivered to Defrier, and such notice delivered to him was introduced in evidence. How the notice again came into the possession of defendant in error does not appear. There is also proof tending to show that the notice was prepared in duplicate, and that the copy which was actually served upon Defrier was signed by defendant in error. The service was sufficient and formal.

It would serve no useful purpose to recite the evidence tending, to show that the premises were used for the unlawful purpose charged. It is sufficient to prove the fact charged .beyond reasonable question.

Whether the premises were sublet by Defrier to Fekete, or whether the latter entered into possession as a partner of Defrier, is of no consequence in determining any issue, save that involved in the alleged subletting of the premises without the written consent of defendant in error. This issue was not controlling and demands no consideration.

No recovery of rent was sought, and the right of defendant in error to recover rent after terminating the lease by notice to quit is not involved.

It is said: “As to keeping a bawdy house or house of ill fame, the defendants were entitled to a reasonable doubt.” The record discloses that counsel for defendants (the plaintiffs in error) requested the court to instruct the jury “that the plaintiff in order to prove Ms issues in tliis case must prove Ms issues by a preponderance of the evidence, as testified or given from the witness stand.” The court informed counsel that a like instruction had been practically given. Counsel is precluded from now asserting that the instruction relative to the degree of proof necessary was erroneous.

There is no prejudicial error in the record and the judgment is affirmed.

tJudgment affirmed.


text:
    Agnil Light Company, Defendant in Error, v. National Stamping Electric Works, Plaintiff in Error.
    Gen. No. 17,287.
    1. Saxes — when goods not shipped within reasonable time. Plaintiff ordered certain tanks September 9th, to be shipped in two weeks. Prom the correspondence it appeared that the order was for fifty tanks and was so understood by defendant, who pretended to misunderstand to produce delay. On request plaintiff sent a deposit, which was received September 24th. On September 30th, when defendant had tanks which he should have shipped immediately under the contract, he, without mentioning the receipt of deposit, requested full payment, which was sent. Defendant, on October 8th, wrote that the deposit was just received and that tanks intended for plaintiff were shipped elsewhere on account of the delay in sending the deposit. On November 5th, plaintiff telegraphed defendant cancelling the order and demanding that the remittance be refunded. Defendant falsely claimed that he received the telegram after the goods were shipped. Held, that! conceding that plaintiff waived performance within two weeks, defendant failed to perform within a reasonable time without any reasonable excuse.
    2. Saxes — performance of contract. Though the buyer waives performance of the contract within the time specified in his acceptance of the offer, the seller is required to perform within a reasonable time after notice.
    3. Saxes — delivery of goods to carrier. Delivery of goods to a «carrier does not constitute delivery to the consignee where delivery is not made within a reasonable time after the order is given and the order is canceled before such delivery.
    Appeal from the Municipal Court of Chicago; the Hon. John D. Ttjenbausi-i, Judge, presiding. Heard in the Branch Appellate
    Court at the March term, 1911.
    Affirmed.
    Opinion filed March 26, 1913.
    Stedman & Soelke, for plaintiff in error.
    Charles Hudson, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This was a suit instituted in the Municipal Court by defendant in error against plaintiff in error to recover money paid- upon a contract for the sale and shipment of fifty tanks, which contract defendant in error claims to have rightfully canceled before said shipment was made by plaintiff in error. A trial by the court resulted in a finding and judgment against plaintiff in error for $359.90, and this writ of error is prosecuted to reverse such judgment.

On August 30, 1910, defendant in error, doing business in the City of Mexico, wrote plaintiff in error at Chicago, in part, as follows:

“Answering your letter of the 8th instant, we are willing to place an order with you for 100 tanks, subject to the following conditions:

“Fifty tanks to be shipped at once with two gauges, one for gasoline, the other for air pressure. * * * The other 50 tanks we desire to use inside of boulevard lamp posts. * * * Kindly wire us upon receipt of this if you will execute our order for 50 ordinary tanks, with the desired changes as above mentioned without additional charge, and when you can ship same. Also kindly wire the price of the tanks for the boulevard posts, and when you could make shipment of same. If you prefer and mention so in your telegram we will forward check for the amount immediately upon receipt of your wire, but we believe that we gave you R. Gr. Dun’s Agency as reference, and are entitled to thirty days’ time. Awaiting your reply by ' wire, as we are also communicating with another concern about these tanks, we remain,” etc.

In reply to this letter plaintiff in error, on September 7, telegraphed defendant in error as follows:

“One hundred two in one tanks with one gauge per specifications six dollars fifty cents, two gauges seven twenty five. Shipment of fifty in three weeks see letter for full particulars.”

On the same day plaintiff in error wrote defendant in error, in part, as follows:

‘ ‘ Do we understand yours of the 30th to be an order for 100 combination tanks, at $6.50 each with two gauges instead of one? If so, we cannot accept it as we must have not less than $7.25 for the tank with two gauges. Tour letter is not altogether clear to us as it calls for 100 tanks; 50 to be shipped at once, but it does not give any instructions as to when the second 50 are to be forwarded. * * * We further note what you say in regard to time of shipment. At the present writing we can make shipment inside of three weeks of 50 tanks but could ship 100 in about the same length of time. As to terms will say that we believe that we have made terms clear to you in our quotations on which is a deposit of 25 per cent with the order, balance upon receipt of shipping documents * * *. Now, gentlemen, we are anxious to serve you and hope that we may hear from you with an order by wire, stating that order and deposit is being forwarded so as to save time in getting the order started. We are quite busy in our tank department at the present writing but assure you that your order will receive our careful attention.”

On September 9th defendant in error telegraphed plaintiff in error as follows:

“Accept. 50 tanks with two gauges; shipment within two weeks.”

Defendant in error, also on the same day, wrote plaintiff in error as follows:

“* * * We do not understand your attitude towards ns * * *. We request yon obtain information in regard to onr responsibility from R. G. Dun & Co. which yon apparently overlooked, insisting on onr sending money in advance. Under these circumstances we did not feel justified to order for the time being more than 50 tanks, and request yon to hurry those on all yon can if possible before two weeks from now. Please find enclosed $100 U. S. Cy. which yon will credit onr account with. Ship goods by freight consigning to M. W. Brennan at New Laredo, Mexico, to whom yon will please send copy of B-L, copy of your invoice, and packing list with gross and net weights. After receipt of these 50 tanks we will let you know about the other 50 for boulevard tanks of which we spoke in ours of August 30th.”

In a subsequent letter of the same date defendant in error stated that, owing to the national holiday, it had been unable to buy the check it meant to enclose, but would wire the money on the 17th, being the earliest date on which it could be obtained, and requested plaintiff in error to rush the order and not to hold it.

Notwithstanding the check for $100 was received by plaintiff in error on September 24th, it wrote to defendant in error on September 30th, in part, as follows:

“We have these tanks all made up as per your order and are very much disappointed indeed not to have received the check which you informed was, or would be forthcoming in a few days. Now gentlemen, we are not at the present time overburdened with space and as 50 combination tanks take in considerable room, we will appreciate it if you will forward check for the balance so as not to delay shipment of these goods. While we feel that you are certainly responsible our terms are strictly on the basis outlined and we are not in position to change same, therefore we hope to receive your remittance by return mail.”

On October 5th defendant in error wrote plaintiff in error as follows:

“We wrote you on the 12th ultimo, confirming our telegram and order of the same date, and advising a remittance of $100.00. This money was paid by ns to the Mexican Express Company and yon will certainly bave received it long before now from Wells Fargo & Co.

“We are very disagreeably surprised not to bave heard from yon for the last three weeks in regard to the fifty tanks ordered, that should have been shipped within two weeks of receipt of our order, and beg that yon will explain as soon as possible why it has been held or delayed. We very much needed the goods and have been submitted to considerable trouble and annoyance on account of your silence, and non delivery.”

On October 8th plaintiff in error wrote defendant in error, in part, as follows:

“We have just received remittance (referring to check received September 24) to apply on the order of 100 combination tanks and herewith acknowledge same. Our understanding is that we are to ship these tanks in two shipments, 50 at a time, shipping them, bill of lading attached for the balance due. We are sorry indeed that you did not give this matter more prompt attention as we had 50 of these tanks already but same were shipped out on other orders. We are now working on your order for 100 combination tanks with two gauges and will finish up 50 as soon as possible and ship them to you, sending tracer after same. Kindly write us fully when the second lot of 50 will be shipped.”

On or about October 5th defendant in error mailed to plaintiff in error a draft for $237.50, balance in full for the 50 tanks, and on October 10th plaintiff in error acknowledged the receipt of such remittance and wrote defendant in error as follows:

“We are working overtime and assure you that we will make shipment of the first 50 at the earliest possible date.”

In reply to the letter of defendant in error, dated October 5, plaintiff in error, on October 12th, wrote as follows:

“We have yours at hand and note what you say in regard to not having shipped the combination tanks. "Will say that the reason for the delay was that your deposit was not received. The goods were made up and resold and we were compelled to make up a new lot which will he furnished in the shortest possible time. In your letter you spoke of 50 tanks. Was not your order for 100? We surely quoted you on this quantity. Shipments to be made in lots of 50.”

In reply to the letter of plaintiff in error, dated October. 8th, defendant in error, on October 15th, wrote as follows:

“We are in receipt of your letter of October 8th and cannot help to express our surprise about the way in which you are handling’ our order for tanks. We are at a loss to understand how you are handling your business, but we certainly must protest against the way in which you are treating us. If at the receipt of this letter you have not filled our order for fifty tanks please telegraph us and return us our remittance at once. If we don’t hear from you we will have one of our business friends call on you at once to settle this matter.

“You had no reason whatever to hold our order for lack of funds, as we complied with your quotation to pay 25% and you should have shipped at once drawing on us for the balance against shipping documents. Instead of this you hold the order most arbitrarily until you get the balance of the money in advance and now you say that you are working on our order for a hundred tanks, having shipped out to others the. fifty which you had ready for us.

“In our letter dated September 12th we state clearly: ‘under these circumstances we do not feel justified to order for the time being more than 50 tanks and request you to hurry same.’ Why did you at the receipt of this letter with our remittance for $100, not refuse the order if you did not care to fill it for fifty tanks only and under the condition offered by you 25% cash and the balance against shipping documents ? ’ ’

In reply to the last letter plaintiff in error on October 31st wrote, in part, as follows:

“Now, we are exceedingly sorry that you are not entirely pleased with the delay which was due to the fact that yonr remittance was not received as stated in yonr letter that yon were wiring the deposit. We have been crowded in onr tank department. Having the tanks made np and not having yonr deposit they were shipped ont to another customer and it has been impossible for ns since we received yonr remittance to make shipment of yonr order. We were under the impression that yon wanted 100 tanks and the deposit was on this number, but as we now understand yon have paid in full for the 50 tanks. * * * We assure yon that we are doing all we can to fill yonr order and expect to make shipment during the coming week on your goods, and hereafter send the deposit with the order and yon will receive prompt and careful attention.”

On November 5th, defendant in error telegraphed plaintiff in error as follows:

“Don’t ship tanks. Had to order them elsewhere. Refund remittance.”

This telegram was confirmed by letter of same date, wherein defendant in error wrote, in part, as follows:

“The order was given you by telegraph on the 9th of September with the condition that delivery should be made within two wteeks. We have waited longer than we could afford. In our letter October 15th we requested you to wire us in case you had not filled our order, and not having received your reply by wire as requested we were compelled to order tanks elsewhere, considering the order cancelled through your non-fulfillment and silence.”

The evidence tends to show that the telegram was communicated to plaintiff in error at 9:37 o’clock in the forenoon of November 5th. In the afternoon of the same day plaintiff in error wrote defendant in error as follows:

“We herewith hand you an invoice for the fifty combination tanks and trust that same will be received by you without unnecessary delay. We assure you that we will give your future orders our most careful attention. We have been working day and night of late but are now about caugbt up witb orders and can make more prompt shipments of any future orders which may be entrusted with us.”

It will be observed that the letter makes no reference to the receipt of the telegram.

On November 7th plaintiff in error again wrote defendant in error, in part, as follows:

“We received your wire Saturday the 5th after closing hour. We had already written to you and forwarded to you the invoice for the tanks which were shipped and cannot accept cancellation of same. There was no one to blame but yourself for the delay in getting these goods to you. Had you, as you advised us in your original letter, forwarded a deposit on the day you stated you would the tanks would have gone forward immediately, but due to the delay in receiving the deposit, the goods were shipped out. It was necessary to make them up and worked nights in order to get them to you. • We have been very busy in our tank department and as stated above worked overtime in order to get these goods to you with as little delay as possible. * * * We trust that the shipment which we will trace will reach you promptly and we hope that it will be received by you without unnecessary delay.”

This letter refers to the shipment of the tanks as having been made on November 5th, but the evidence tends to show that the tanks w'ere not received at the freight house of the carrier until 4 o’clock in the afternoon of November 7th.

Summons in this suit was issued on November 9th and service had on plaintiff in error on November 10th.

Plaintiff in error attempts to excuse its unreasonable delay in making shipment upon two grounds: First, its uncertainty as to whether the order was for 100 tanks or 50 tanks; second, the failure of defendant in error to remit the required deposit.

An examination of the correspondence leaves no room for doubt that the final order as given and accepted was for 50 tanks only, and that it was in fact so understood by plaintiff in error. Any pretense by it to tbe contrary was evidently intended to produce confusion and delay. Tbe required deposit of 25 per cent, of tbe contract price whs received by plaintiff in error on September 24tb, yet it ignored any reference to it in its letter of September 30tb, and in its letter of October 8tb stated that it bad “just received remittance.” On September 30tb plaintiff in error bad tbe 50 tanks in stock and should bave then shipped tbe same to defendant in error in accordance with the terms of tbe contract, but instead of doing so, it made a demand upon defendant in error for tbe payment of tbe balance of tbe purchase price. Defendant in error responded to tbe demand immediately, and before it was informed that plaintiff in error bad shipped tbe tanks to other customers. Finally, plaintiff in error claimed to bave shipped tbe tanks before it received notice from defendant in error of tbe cancellation of tbe order, when tbe evidence discloses that tbe tanks were not in fact shipped until after tbe receipt by it of such notice. Tbe conduct of plaintiff in error in tbe transaction does not entitle it to special consideration. If it be conceded that defendant in error should be held to bave waived a performance by plaintiff in error of tbe contract within two weeks after it was made, plaintiff in error would still be required to perform within a reasonable time after notice, and we concur in tbe conclusion arrived at by tbe trial court that it failed, without any reasonable excuse, so to do.

It is insisted that a delivery by plaintiff in error, of tbe tanks to tbe carrier for shipment constituted a delivery to defendant in error, and that it must be held to bave accepted tbe tanks. Tbe true rule is stated in Taylor v. Turner, 87 Ill. 296, thus:

“Delivery to a carrier is considered as a delivery to tbe consignee only when, and as, it is in agreement with tbe terms and tbe intention of tbe shipment.”

Tbe application of tbe rule thus stated to tbe facts in this case operates to take it out of tbe class of cases in which a delivery of goods to tlie carrier constitutes a delivery to the consignee. This snit was commenced by defendant in error before the tanks conld have possibly reached their destination or been received by defendant in error.

The finding and judgment of the court are in accord with the merits of the controversy and the judgment is affirmed.

Judgment affirmed.


text:
    Elizabeth B. Cowell, Appellee, v. Edward Gnatzig et al., Appellants.
    Gen. No. 19,239.
    1. Receiver — when appointment of, proper. Tlie appointment of a receiver in a foreclosure proceeding is not improper if tlie petition therefor is verified though the hill of complaint is not verified.
    2. Mortgages — appointment of receiver to collect rents during redemption period. A transferee of the equity of redemption cannot object to the appointment of a receiver to collect rents during the redemption period to pay a deficiency decree against the mortgagor, although no deficiency decree was rendered against the transferee when he and the mortgagor are insolvent and where he expressly agreed to pay all incumbrances.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 26, 1913.
    Rehearing denied April 24, 1913.
    JohN C. Wilson and E. W. Painter, for appellants.
    No appearance for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver in a foreclosure proceeding after tbe entry of the decree of foreclosure and a sale thereunder.

On November 17,1911, appellee, Elizabeth B. Cowell, filed her bill in the Circuit Court against certain defendants, including the appellant, John G. Eessie, to foreclose a trust deed executed by Edward Gnatzig and wife to one Straus, as trustee, conveying certain real estate in Chicago to secure the payment of fifty-one notes, aggregating $7,000, bearing date September 1, 1910, executed by said grantors, payable to the order of themselves and by them endorsed. ■

Immediately following the filing of the bill, Florence Thompson was appointed receiver to collect the rents, etc., upon filing bond in the sum of $5,000. On June 12, 1912, a decree was entered finding that there was due to appellee upon the notes secured by said trust deed $8,131.18, and also $350 for her solicitor’s fees, and that the makers of said notes were liable for any deficiency, and directing a sale of the real estate. On July 13, 1912, the master executed said decree by selling the real estate to appellee for $8,000, and thereafter, on September 27, 1912, said master filed his report on said sale, and further reported that there was a deficiency of $792.83, which report was, on November 30, 1912, approved and a decree entered adjudging that appellee have and recover of Edward and Martha Gnatzig the amount of said deficiency and that execution issue therefor. Appellant, having become the owner of said real estate, subject to said trust deed, by conveyance from said Edward and Martha Gnatzig, on August 31, 1912, filed his motion to set aside the order theretofore entered appointing said Florence Thompson receiver, and for the removal of said receiver, and on December 23, 1912, said receiver was removed, because the order of appointment failed to require a bond by the complainant or failed to find that for good cause shown a receiver should be appointed without such bond, and thereupon on motion of appellee Frederick B. Clapp was appointed receiver of said real estate to collect the rents, issues and profits of the same until the further order of the court. The order appointing said Clapp as receiver is predicated upon a finding that there is a deficiency decree against Edward and Martha Gnatzig; that said Edward and Martha Gnatzig and said appellant are insolvent; that said appellant obtained his title to the real estate through a warranty deed from said Edward Gnatzig who received his title through appellee; that the warranty deed from appellee to said Gnatzig reserved to appellee the net income in the premises and that appellant had constructive notice of such reservation; that appellee has expended $3,748.47 for taxes, and for interest and principal which has become due on a prior encumbrance upon the real estate, in order to protect the same from foreclosure; and that appellant assumed and agreed to pay the encumbrances on said real estate.

There is no appearance by appellee in this court.

It is first urged that, as the bill of complaint was not verified, the receiver was improperly appointed. The record discloses that the petition filed by appellee for the appointment of a receivór was verified, and this was all that was necessary. Daley v. Nelson, 119 Ill. App. 627.

It is next contended that in the absence of a deficiency decree against appellant, he, as the owner of the equity of redemption, is entitled to the rents during the redemption period; that the decree does not dispose of such rents; that appellee, as the purchaser at the master’s sale, took title under the decree and can claim no right to the rents by virtue of any provision in the trust deed; that by the foreclosure of the trust deed all the rights and liabilities growing out of the trust deed were merged in the decree. In support of such contentions appellant cites, among other cases, Davis v. Dale, 150 Ill. 239; Lightcap v. Bradley, 186 Ill. 510; Haigh v. Carroll, 209 III. 576; Schaeppi v. Bartholomae, 217 Ill. 105; Standish v. Musgrove, 223 llI. 500; Longley v. Wilk, 171 Ill. App. 419.

The facts in the case at bar serve to distinguish it from snch of the cases cited as hear upon the precise question involved. In the case at bar, appellant, the owner of the equity of redemption, expressly assumed and agreed to pay the encumbrances upon the real estate, and he, as well as the makers of the notes, are shown to be insolvent. To permit appellant to collect and retain the rents accruing from the real estate, as against the claim of appellee for the amount of the deficiency upon an encumbrance which appellant assumed and agreed to pay, and for the payment of which deficiency he is liable, would be grossly inequitable. The cases cited do not compel a holding to the contrary. In the Dale and Haigh cases, supra, the property sold for sufficient to pay the amount due the mortgagees, and it was held that the owners of the equity of redemption and not the purchasers at the sale were entitled to receive the rents accruing during the period of redemption. In the Schaeppi case, supra, the rents during the redemption period were held to have been properly applied upon the deficiency, and what was said relative to the rights of a purchaser at a foreclosure sale to receive the rents during that period was predicated upon a sale of the property for an amount sufficient to pay the indebtedness. It was there said:

“The sole objects of the several trust deeds sought to be foreclosed in this proceeding were to secure the payment of the several sums of money mentioned therein, and in case of foreclosure and sale during the time of redemption the grantor in the trust deeds was entitled to the possession of the premises and to receive the rents, issues and profits thereof. If, however, the premises were inadequate security, the person liable to pay the indebtedness insolvent, the person in possession of the premises committing waste, or other equitable grounds were shown and any part of the decree of foreclosure was not satisfied by the sale, the court in which the foreclosure suit was pending might, through a receiver, and not otherwise, appropriate the.rents, issues and profits arising from the premises during the period of redemption for the purpose of paying the portion of the indebtedness which was not satisfied by a sale of the premises.”

In Prussing v. Lancaster, 234 Ill. 462, it was said:

“It is also contended, if it were'conceded that said trust deed was a valid lien upon the premises covered thereby, that the court erred in continuing the receivership after the approval of the master’s sale under the foreclosure decree and in directing that the rents collected by the receiver during the period of redemption be applied in payment of the deficiency decree. The premises did not sell for enough to satisfy the foreclosure decree, and there was a deficiency decree for $5,598.44 in favor of appellees. In such case the practice is a proper one to apply to the satisfaction of such deficiency decree, through a receiver, the rents which may accrue upon the premises covered by the trust deed during the redemption period; and this may be done by a court of equity, although the trust deed is silent upon the subject of the application of the rents to the payment of any deficiency that may remain after the sale of the land covered by the trust deed. Haas v. Chicago Building Society, 89 Ill. 498; Hirst Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140.”

In the Standish and Longley cases, supra, it did not appear that an insolvent owner of the equity of redemption had expressly assumed and agreed to pay the encumbrance upon the property.

We are not now concerned with the precise manner in which the rents accrning during the redemption period shall be disposed of by the receiver, and do not assume to determine that question, but we have no doubt that the receiver was properly appointed to collect such .rents, and that, under the direction of the court, he may properly pay to appellee at least the amount of the deficiency.

The order is affirmed.

Order affirmed.