text:
    Eli L. Nissly et al., Appellants, v. M. Wainer, Appellee.
    Gen. No. 23,536.
    (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 October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Eli L. Nissly, Henry R. Nissly and Eli J. Nissly, trading as E. L. Nissly & Company, plaintiffs, against M. Wainer, defendant, to recover for a balance of account. From a judgment for defendant on his plea of set-off, plaintiffs appeal.
    Hoyne, O’Connor & Irwin, for appellants.

      Abstract of the Decision.
    Set-oef and recoupment, § 6

       — when set-off is proper against nonresident. A claim for unliquidated damages may be set off against a nonresident plaintiff.
    Charles P. Schwartz, Ulysses S. Schwartz and David W. Kahane, 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.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    M. Blickstein, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 23,555.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by M. Blickstein, plaintiff, against the Chicago & Alton Railroad Company, defendant, to recover for the death of a horse shipped by plaintiff over defendant’s road. From a judgment for plaintiff, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn and Frank H. Towner, of counsel.
    Leon Edelman and Charles Leviton, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 228* — when not liable for death of horse in transit. Proof that the death of a horse in transit was caused either by the viciousness of other horses in the car, owned by the shipper, or its lack of vitality, discharges the carrier from liability, in the absence of negligence on its part.

2. Carriers, § 227* — when not required to unload car to aid fallen horse. The fact that employees of a carrier saw that one of several horses shipped in a car was down and endeavored unsuccessfully to get him up did not require them to unload the car and thus delay the transportation of other cars in the train.


text:
    Arthur F. Sterrett, Appellee, v. Frank H. Lennards, Appellant.
    Gen. No. 23,587.
    1. Landlord and tenant, § 8

       — when relation created. The relation of landlord and tenant is created by a lease under seal signed by the tenant and by the lessor’s wife in her name, the tenant having entered into possession and the parties by their subsequent conduct having recognized the existence of the relation.
    2. Landlord and tenant, § 35* — what is effect of failure of lessor to sign lease. Where a default by the tenant occurs, under the provisions of a lease under which the tenant entered into possession, the lessor may recover upon the lease, although he did not sign it.
    3. Landlord and tenant, § 330* — what may be included in judgment for rent. In an action by a lessor for the recovery of premises and for unpaid rent, judgment may be entered for instalments of rent due at the time of the trial.
    Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Frank H. Lennards, pro se.

      Archibald Cattell and Carl A. Waldron, 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.

This appeal is from a judgment for plaintiff for possession of leased premises and unpaid rent. It was begun in a Justice’s Court and tried de novo in the County Court. The main question is whether the relation of landlord and tenant existed between the parties.

The lease purported in the body thereof to be between plaintiff and defendant as the party of the first and second part, respectively, and it contained many of the usual covenants, among them, that in case of default in the payment of rent the party of the first part would have the right to repossess himself of the premises and the party of the second part would be deemed guilty of forcible detainer, and that the first party might have access to the premises to make any needful repairs he saw fit. The testimonium clause stated that said parties had set their hands and seals to the instrument, but it was signed “Mrs. A. F. Sterrett,” “Frank H. Lennards,” and bore their seals.

The lease was negotiated and drawn by plaintiff’s agent, one Shayne, at his office when no one was present except defendant and said agent. Defendant did not see Mrs. Sterrett until some time .after the lease was executed, when she was introduced by Mr. Sterrett and when defendant made an appointment to meet plaintiff and pay him one month’s rent. He paid rent to plaintiff three times and to Mrs. Sterrett once, and sent her a check at another time. But he knew that plaintiff was frequently absent from the city in his business and was requested by plaintiff not to call up his wife except in an emergency. He had also talked with plaintiff about repairs and plaintiff had promised him to make certain repairs. Owing to plaintiff’s absenee from the city when the lease was executed, and that defendant might take possession at once, plaintiff authorized his wife to sign the lease.

Under the foregoing circumstances we think there can be no doubt that the relation of landlord and tenant existed between the parties hereto. The case is not different from that of Johnson v. Crane, 22 Ill. App. 366, where the lease was signed by the lessee under seal but not by the lessors, that of their agent being in place of their signatures. The court said: “But its execution by the defendant under his hand and seal made it his deed, and such execution was all that was necessary to give vitality to the warrant of attorney,” under which a judgment in forcible detainer by confession was entered against the lessee.

And so here. Both parties recognized that the relation between landlord and tenant existed between them. The covenants of the lease purported to be between them. Defendant executed the lease under seal and took possession of the premises thereunder, and under such circumstances he was bound by the lease while he occupied the premises. There being a default it was not necessary that plaintiff should have signed the lease at all in order to recover upon it. (Fields v. Brown, 90 Ill. App. 195.)

We think there was no error in entering a judgment for the instalments of the rent due at the time of the trial. (Encyc. of Pl. & Pr. vol. 2, p. 841.)

Affirmed.


text:
    Kate M. West, Appellee, v. J. A. McNaughton, Appellant.
    Gen. No. 23,905.
    1. Damages, § 68

       — when failure of landlord to obtain another tenant may not be complained of. A tenant, who, after vacating the premises prior to the expiration of the term, retained constructive possession by keeping the keys, cannot object to the lessor’s failure to minimize the damages by obtaining another tenant, in an action for rent.
    2. Landlord and tenant, § 327* — when attorney’s fees may be included in judgment for rent. Where a judgment by confession for rent is merely opened and not vacated and the final order confirmed the judgment by confession, attorney’s fees may he included as part of the judgment.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Gregory, Burges & McNab, for appellant.
    T. F. Monahan, 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.

On January 27, 1917, a judgment herein was confessed upon a lease for rent due. On consideration of certain affidavits filed in court it was opened, and de: fendant was allowed to plead and have a jury trial, said judgment to stand as security. A trial was had, the main issues of fact being, whether or not the defendant had abandoned the premises and the lessor had attempted to minimize the damages. It appeared from the testimony, however, that the defendant had retained constructive possession of the premises by keeping the keys thereto, whereupon the court directed a verdict for plaintiff and entered an order thereon confirming the judgment by confession, which was for the amount of rent due according to the terms of the lease and $25 attorney’s fees.

Appellant’s contention as to mitigation of damages is based upon the theory that the premises were abandoned, which is contrary to the facts. Under such circumstances there was no room for the contention that the lessor should have secured another tenant so as to mitigate the damages.

It is also urged that it was error to include attorney’s fees as part of the judgment, and we are referred to the case of George J. Cooke Co. v. Johnson, 179 Ill. App. 83. We infer from that opinion that the judgment by confession was vacated, in which case, as there stated, the new judgment operates to nullify the power of attorney to confess judgment, and his act thereunder. (Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431.) But in the case at bar the judgment was merely opened and the final order confirmed the judgmeilt by confession, thus giving effect to the power of attorney. We do not, therefore, think there was error in including the attorney’s fees in the judg- ' ment. It will be affirmed.

Affirmed.


text:
    Kate M. West, Appellee, v. J. A. McNaughton, Appellant.
    Gen. No. 23,597.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Judgment — how question of res adjudicate cannot he determined. On a motion to open a judgment by confession for rent, where plaintiff in a counter-affidavit claimed that the right to rent had been adjudicated in a previous judgment, the trial judge cannot properly determine the question of res adjudicate by consulting the files and record in the previous case.
    2. Landlord and tenant, § 310

       — what is not defense in action for rent. The fact that a tenant, abandoning leased premises prior to the expiration of the lease, tendered a desirable tenant for a portion of the unexpired term is not a defense in an action to recover rent, on the theory that the tenant was deprived of an opportunity to minimize his loss.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Judgment by confession for rent and attorney’s fees was recovered by Kate M. West, plaintiff, against J. A. McNaughton, defendant. Upon denial of the latter’s motion to vacate the judgment, he appeals.
    See also West v. McNaughton, ante, p. 259, a related case.
    Gregory, Burges & McNab, for appellant.
    T. F. Monahan, 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:
    Leonard Rochis, Appellee, v. Vincent Milascewicz, Appellant.
    Gen. No. 23,609.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 67

       — when oral contract by broker to procure fire insurance shown. Finding that defendant, an insurance broker, entered into an oral contract with plaintiff to procure fire insurance on the latter’s house, held sustained by the evidence, in an action to recover damages for the breach of such contract.
    2. Insurance, § 67* — when evidence sustains finding as to damages. In an action to recover damages for breach of contract to procure fire insurance on plaintiff’s house, evidence held to sustain the finding as to the amount of damages.
    3. Insurance, § 67* — what does not affect validity of contract to procure fire. The fact that the payment of the premium may be necessary to enforce a contract of fire insurance against an insurer does not render such payment necessary to the validity of a contract by an insurance broker to procure insurance so as to defeat an action for breach of such contract, especially where the payment was expressly waived.

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Leonard Rochis, plaintiff, against Vincent Milascewicz, defendant, to recover damages for breach of a contract to procure insurance. From a judgment for plaintiff for $800 and costs, defendant appeals.
    Paul Irose, for appellant.
    Frank M. Fairfield, 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.

4. Insurance, § 67 — what is not negligence tarring recovery for breach of contract by broker to procure. In an action against an insurance broker for breach of a contract to procure fire insurance, the fact that plaintiff waited 4 weeks after he had been assured by the defendant that the policy had been sent for but had not arrived without attempting to procure insurance elsewhere was not negligence barring recovery.


text:
    In re Estate of Charles H. Mulliken, Deceased. Cora S. Mulliken, Appellant.
    Gen. No. 23,624.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with directions.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Petition to review a widow’s award under Administration Act, sec. 75 (J. & A. 124), filed by the Continental & Commercial National Bank of Chicago. From an order of the Probate Court reducing the award from $2,500 to $2,000, the widow, Cora S. Mulliken, appealed to the Circuit Court, where judgment of nihil capiat and for costs was entered against her, from which she appeals.
    Charles S. Cullen, for appellant Cora S. Mulliken; Hiram T. Gilbert, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee Continental & Commercial National Bank.

      Abstract of the Decision.
    Executors and administrators, § 196

       — when petition to review widow’s award is too late. A delay of 20 months on the part of a creditor whose claim was allowed prior to the widow’s award is so unreasonable as to require the dismissal of a petition to review the award under Administration Act, sec. 75 ,(J. & A. H 124).

      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:
    Charley Os-Ko-Mon, Appellee, v. New York Star Company et al., on appeal of Marie Berezniak, Appellant.
    Gen. No. 23,666.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Charley Os-Ko-Mon, plaintiff, against New York Star Company and Marie Berezniak, defendants, to recover damages for breach of an attachment bond. From a judgment for plaintiff for $25, defendant Berezniak appeals.
    Cavender & Kaiser, for appellant.
    Harry Smitz, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Attachment, § 356* — when judgment for legal services proper in action on bond. In an action on an attachment bond, judgment for $25 for legal advice and services rendered in relation to the attachment and not for defending the suit, held sustained by the undisputed evidence.


text:
    Alexander H. Revell & Company, Appellant, v. C. H. Morgan Grocery Company, Appellee.
    Gen. Ho. 24,057.
    (Hot to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 21a

       — applicability of sections 92 and 93 of Practice Act as to approval of appeal bonds to. Sections 92, 93 of the Practice Act (J. & A. HI 8629, 8630), relating to the approval of appeal bonds by an order of court or by the clerk, when authorized by the court, apply to appeals from Municipal Court of Chicago as well as to other courts of record.

      Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Dismissed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Alexander H. Revell & Company, plaintiff, against C. H. Morgan Grocery Company, a corporation, defendant. From a judgment for defendant, plaintiff appealed and defendant made a motion to dismiss the appeal.
    Ernest Kasischke and Edwy Logan Reeves, for appellant.
    Allen & Ward, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Muni on?al Court of Chicago, § 21a — when approval of appeal bond is insufficient. An approval of an appeal bond by a trial judge of the Municipal Court of Chicago by writing his name thereon under the word “approved,” and without an order of approval, is insufficient.


author: Mr. Justice McDonald

text:
    Armin W. Brand and Virgil M. Brand, Trustee, Defendants in Error, v. John H. F. Rueter et al., Plaintiffs in Error.
    Gen. No. 23,105.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G-. Wiitobs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Bill by Armin W. Brand and Virgil M. Brand, as trustee, complainants, against John H. F. Rueter and others, defendants, to foreclose a trust deed. ' From a decree of foreclosure, defendants bring error.
    This case is governed by the decision on a former appeal. See 200 Ill. App. 42.
    James A. Peterson, for plaintiffs in error.
    James H. Hood, for defendants in error.
   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1725* — binding effect of decision on former appeal. The decision of the Appellate Court on a former appeal is binding, where the identical questions involved in the second appeal were determined on the first appeal.


author: Mr. Justice McDonald delivered

text:
    Paul K. Brimie, Appellee, v. Belden Manufacturing Company, Appellant.
    Gen. No. 23,177.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 487

       — when defendant bound by special finding of fact. A defendant is bound by a special finding of fact in response to a special interrogatory where no motion is made to set it aside and no error has been assigned thereon.

      Appeal from the Circuit Court of Cook county; the Bon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the Miarch term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Rehearing denied May 24, 1918.
    Statement of the Case.
    Action by Paul K. Brimie, plaintiff, against Belden Manufacturing Company, a corporation, defendant, under section 3 of the Workmen’s Compensation Act of 1911 (J. & A. 5451), to recover for personal injuries received while in defendant’s employ. From a judgment for plaintiff for $3,200, defendant appeals.
    Wilkerson, Cassels & Potter, for appellant; Ralph F. Potter, of counsel.
    Amos W. Marston and Charles C. Spencer, 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:
    William H. Mellin, Defendant in Error, v. Charles H. McDermott, Plaintiff in Error.
    Gen. No. 23,329.
    Principal and agent, § 69

       — •when commissions for obtaining building loan not recoverable. There can be no recovery of commissions for obtaining a building loan, under an application providing that the loan should bear interest from the date of application and should be evidenced by judgment principal and interest notes secured by a first mortgage on the property, that the money should be paid out at the discretion of the agent in such instalments and at such stages of progress of the building as the agent might see fit, the final instalment to be paid on completion of the building, where, although the application contained no provision as to a depositary, the agent wrongfully insisted on acting as custodian of the money and was not willing to allow the money to be left with a responsible trust company.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court.(making opinion final).
    Reversed.
    Opinion filed May 14, 1918.
    Chytraus, Healy & Frost, for plaintiff in error.
    Egbert F. Kolb and Tatge & Tatge, for defendant in error; Frank Ingraffia, 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.

By this writ of error defendant brings up for review and seeks reversal of a judgment for $1,920 entered against him on a directed verdict, in an action of assumpsit to recover commissions alleged to be due plaintiff.

Defendant owned certain lots in the City of Chicago which he desired to improve. He applied to the plaintiff for a building loan of $48,000, signing a written application therefor in which he agreed to pay plaintiff a commission of 4 per cent, of the amount of the loan. The application recited that the loan was to bear interest from the date of said application and was to be evidenced by judgment principal and interest notes secured by a first mortgage on the property; that the money should be paid out at the discretion of the plaintiff, in such instalments and at such stages of progress of the building as plaintiff might see fit, the final instalment to be paid upon its completion. The said application made no provision for a stakeholder or a depositary of the money during the construction of the building.

A few days after the application was signed, plaintiff notified the defendant of the acceptance thereof. About a month later plaintiff called on the defendant and requested him to sign the necessary papers evidencing the loan and the security therefor. Thereupon the defendant demanded that the money in question be deposited in escrow with the Chicago Title & Trust Company, to be paid out on plaintiff’s order as the building progressed, and refused to sign anything further until his demand had been complied with. This the plaintiff declined to do, and notified defendant that if the papers were not signed by a specified date, the money would be loaned to some one else.

It was plaintiff’s contention that by the terms of the application for the said loan he was made custodian of the money during the construction of the building, and that he was therefore justified in refusing to deposit the money with the Chicago Title & Trust Company, to be paid out upon his order. Plaintiff’s attorney concedes, however, that the said application contained no express provision authorizing his client to act as custodian of the fund during the construction of the building, but insists that he was entitled to his commission, for the alleged reason that he procured a lender who was ready, able and willing to make the loan upon the terms proposed.

The evidence showed that plaintiff finally called upon defendant and tendered a cashier’s check for $48,000 and requested defendant to execute the requisite papers. To whose order the cashier’s check was made payable does not appear from the evidence, but from plaintiff’s contention upon the trial, that he was entitled to hold the fund during the construction of the building, it is fair to assume that the said check was payable to his own order.

It is apparent that the deal failed of consummation because the application did not designate a custodian of the said fund, and the parties were unable to agree on none, plaintiff insisting (wrongfully) on his right to act as such, while defendant was willing to have the money placed with a responsible trust company. In this situation, it is apparent that the plaintiff cannot recover, for the reasons (a) that the contract which he drafted is unenforceable, and (b) because he insisted on exacting terms profitable to himself, which were not contemplated by the contract. '

Accordingly the judgment will be reversed.

Reversed.


text:
    Walter Pask, Appellee, v. The London & Lancashire Fire Insurance Company, Limited, Appellant.
    Gen. No. 23,411.
    (Not to be reported in full.)
    Abstract of the Decision.
    Automobiles and gabages, § 7

       — when theft with felonious intent shown. In an action on an automobile theft policy, the evidence showed a theft of the automobile with felonious intent where it appeared that a discharged servant of plaintiff’s, whose duties while in the employ of his master did not include driving an automobile, unlocked the garage and put the batteries and other equipment on the car and drove it away without the owner’s knowledge or consent, and the equipment was not on the car when it was returned by him in a damaged condition.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Rehearing denied May 24, 1918.
    Statement of the Case.
    Action by Walter Pask, plaintiff, against The London & Lancashire Fire Insurance Company, Limited, defendant, to recover on an automobile theft insurance policy. From a judgment for $434.30 in favor of plaintiff, defendant appeals.
    Schuyler & Weinfeld, for appellant.
    Egbert F. Kolb, for appellee; Frank Ingraffia, 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.


text:
    R. C. Foster, Appellant, v. Eugenie Graf, Appellee.
    Gen. No. 23,471.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 472

       — what degree of proof necessary where cause of action is founded on crime. Where a cause of action is based upon a crime, the degree of proof applicable to a criminal prosecution, i. e., proof beyond a reasonable doubt is required to sustain the verdict.
    2. Assumpsit, Action oe, § 89* — when reasonable doubt as to guilt of servant of forgery exists. In an action to recover the proceeds of certain checks which plaintiff claimed that his servant cashed and appropriated without authority, where there was evidence of admissions by plaintiff that the servant had authority to indorse checks generally, and the prosecution of a forgery indictment was abandoned and the servant subsequently sentenced on a plea of guilty to a charge of embezzlement, there was a reasonable doubt as to the guilt of the servant of the crime of forgery so as not to render defendant, who had cashed the checks for the servant, liable for the proceeds.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Rehearing denied May 24, 1918.
    Statement of the Case.
    Action by R. C. Foster, plaintiff, against Eugenie Graf, defendant, to recover the proceeds of certain checks. From a judgment of nil capiat, plaintiff appeals.
    Defress, Buckingham & Eaton and James C. Wood-bury, for appellant; Don Kenneth Jones, of counsel.
    M. M. Jacobs, 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:
    Irene M. Posvic, Defendant in Error, v. A. C. Harford et al. Herman Ronnau, Plaintiff in Error.
    Gen. No. 23,513.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Vendor and purchaser, § 352

       — when shown that agent had no authority to execute contract for joint owners. In an action against one of the joint owners of real estate for damages for breach of a contract to sell the real estate to plaintiff, evidence held sufficient to sustain the finding that defendant ordered his agent to make a contract in behalf of all the owners and without authority.
    2. Pleading, § 258* — what amendments may he made before judgment. Under section 39 of the Practice Act (J. & A. jf 8576), amendments may he made before judgment by discontinuing as to any joint defendant and changing the form of action.
    Error to the Municipal Court of Chicago; the Hon. Dennis W. Suixivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. on remittitur; otherwise reversed and remanded.
    Affirmed
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Irene M. Posvic, plaintiff, against A. C. Harford, Herman Eonnau and others, defendants, to recover damages for breach of a contract for the sale of real estate. Plaintiff dismissed as to all defendants except Herman Eonnau and judgment was rendered against said Eonnau for $800, from which he brings error.
    Albert H. Fry, for plaintiff in error.
    Otto F. Ring, for defendant in error.

      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. Vendor and purchaser, § 340* — When joint owner is liable for failure to fulfil contract to sell.. One of the joint owners of real estate who undertakes without authority to contract on behalf of all the owners to sell the property is liable to the purchaser for damages sustained as the result of his inability to perform the contract.

4. Vendor and purchaser, § 343* — what is measure of damages for breach of contract to sell realty. The measure of damages for breach of a contract to sell real estate is the difference between the contract price and what the purchaser had contracted to sell the real estate for to another.


text:
    John Novak, Defendant in Error, v. Johanna Kruse, Plaintiff in Error.
    Gen. No. 23,539.
    1. Mechanics’ liens, § 206

       — unconstitutionality of provision for recovery as at law against property owner where no right of lien exists. Section 13 of the Mechanics’ Liens Act (J. & A. If 7151), providing that in the event the court finds that no right to a lien exists recovery may be had against the owner of the property as at law, is unconstitutional as class legislation and as depriving the defendant of the right to a trial by jury in what amounts to an action at law.
    2. Mechanics’ liens, § 207* — when money decree against property owner is null and void. A money decree against the owner of property in a proceeding under section 13 of the Mechanics’ Liens Act (J. & A. 7151), providing that in the event that the court finds that no right to a lien exists recovery may be had against the owner of the property as at law, is null and void, since the statute is unconstitutional.
    3. Mechanics’ liens, § 207* — when money decree is improper. A court, in a mechanic’s lien proceeding, has no jurisdiction of the subject-matter where there is no right to a lien, and it has no authority to enter a money decree against the defendant.
    4. Judgment, § 360* — when may be collaterally attached. Courts are limited in the scope and character of their judgments and decrees, and, if they transcend their powers, their judgments and decrees are void and may be collaterally attacked.
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Roy C. Merrick, for plaintiff in error.
    Edward J. Novak, for defendant in error.

      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.

This writ of error brings up for review a decree granting the relief sought by complainant in his bill of complaint.

The bill was filed March 11, 1904, John V. Ayers, Johanna Kruse and others being named therein as parties defendant. It sought to revive and then to foreclose a certain trust deed conveying a certain lot therein described, executed on January 15, 1900, by the said Ayers to one Panoch as trustee for the Bohemian-American Building & Loan Association, a corporation; to set aside a release thereof dated July 25, 1902; and to set aside and to remove a cloud on complainant’s title to the said lot. Issue having been joined, the cause was referred to a master in chancery, who after a full hearing recommended that a decree be entered in accordance with the prayer of the bill of complaint, pursuant to which the court entered the decree herein complained of.

On January 15, 1900, the said Ayers, being then the owner of the said lot, together with certain other real estate not here involved, executed the aforesaid trust deed to secure payment of his note of even date therewith, in the sum of $4,000, payable to the order of the said association. On January 30, 1900, Alva M. Johnson and Charles M. Whitehead recovered a judgment for $91.84 against the said Ayers, upon which exeeution was duly issued. On May 8, 1900, there was filed for record in the office of the recorder of Cook county, a quitclaim deed from the said Ayers to the said association, conveying the lot in question, which said deed bore date January 15, 1900. Some time during the year 1900 the said association took possession of the said lot, completed an unfinished building thereon, and remained in possession thereof until July, 1902, during which period it collected and retained the rents therefrom. On November 5, 1900, one Theodore N. Bell, commenced proceedings to enforce a mechanic’s lien on said premises, and on June 5, 1901, obtained a money decree for $432.50 against the said Ayers.

On July 22, 1902, the said association sold and conveyed to the complainant, by warranty deed, the property in question, for the sum of $4,200, of which $1,000 was paid in cash and the remainder ($3,200) by a credit due complainant from the said association. On July 25,1902, said association executed a release of the trust deed in question. On September 30, 1902, the said lot and certain other property not here involved were sold by the sheriff of Cook county on an execution issued on the Johnson and Whitehead judgment hereinabove referred to. On December 30, 1903, execution was issued on the Bell decree, and thereupon redemption was made by the said Bell from the sale of the premises under the said Johnson and Whitehead judgment. Subsequently the said premises were resold under the said Bell decree, and on January 20, 1904, a sheriff’s deed was issued to the purchaser at the resale, who subsequently conveyed to the defendant herein.

The paramount question presented here for determination is, whether or not the said Bell was entitled to a money decree against the said Ayers, in a proceeding brought under section 13 of the Mechanics’ Liens Act, ch. 82, Rev. St. Ill. (J. & A. f 7151), which said section provided that in the event the court found that no right to a lien existed, recovery against the owner of the property could he had as at law. This provision was held unconstitutional in Turnes v. Brenckle, 249 Ill. 394, upon the grounds (a) that it constituted class legislation, and (b) that it deprived the defendant of the right to a trial by jury, in what amounted to an action at law. It follows therefore that the decree in question is null and void; and defendant’s claim to the said premises being predicated upon this decree, is likewise void, constituting a cloud on complainant’s title.

It is insisted by the defendant that the said decree was not subject to collateral attack, for the alleged reason that the court had jurisdiction of both the parties and the subject-matter.

If, under any circumstances, the trial court had authority to enter the decree complained of, then it had jurisdiction of the subject-matter, otherwise not. (O’Connor v. Board of Trustees, 247 Ill. 54.) In the instant case, the court had no authority to enter a money decree against the defendant in any event, in a mechanic’s lien proceeding, and hence, under the holding in the O’Connor case, supra, it had no jurisdiction of the. subject-matter. And it has been also held that although the court may have jurisdiction of the subject-matter of and the parties to a cause, its decree or judgment may nevertheless be collaterally attacked where it has exceeded its jurisdiction in entering same. Courts are limited in the scope and character of their judgments and decrees, and, if they transcend their power, their judgments and decrees are void and hence may be collaterally attacked. Great Western Tel. Co. v. Barker, 56 Ill. App. 402; United States v. Walker, 109 U. S. 258.

Defendant has attacked the decree on other grounds, but inasmuch as he has no interest in the subject-matter of the suit, he cannot be heard to further question the said decree. Accordingly it will be affirmed.

Affirmed.


text:
    Empire Security Company, Appellant, v. J. M. Berry, Appellee.
    Gen. No. 23,549.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Words and phrases — how “retire” defined. The word “retire” means to recover; redeem; regain by the payment of a sum of money. (Citing Century dictionary.)
    2. Bills and notes, § 169

       — what constitutes agreement to pay note if not paid at maturity. An agreement to pay a note if the maker does not “retire” it at maturity is an agreement to pay the note if the maker does not pay it at maturity.
    3. Bills and notes, § 172* — what constitutes absolute guaranty of note. An agreement to pay a note if the maker does not “retire” it at maturity is an absolute guaranty of the note, and it is unnecessary that the payee exhaust his remedies against the maker before proceeding against the guarantor.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Empire Security Company, plaintiff, against J. M. Berry, defendant, to recover on a written guaranty. From a judgment for defendant, plaintiff appeals.
    L. A. Stebbins, Burton P. Sears, Frederick A. Bangs and E. I. Frankhauser, for appellant; Richard H. Colby and Herbert J. Ferguson, of counsel.
    C. Arch Williams, 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 McDonald

delivered the opinion of the court.

4. Bills and notes, § 172 — what regarded as surplusage in guaranty of note. Where the guaranty of a note is otherwise absolute, the use of the words “To whom it may concern," by way of preamble, is immaterial, and such words may he regarded as surplusage.

5. Guaranty, § 6* — when notice of acceptance unnecessary. Where a guaranty of a note is absolute, no notice of its acceptance is necessary to hind the guarantor.

6. Guaranty, § 6* — when notice of acceptance is unnecessary. Where a contract of guaranty is entered into contemporaneously with the principal agreement, no notice of acceptance to the guarantor is necessary.

7. Guaranty, § 6* — when notice of acceptance is unnecessary. No notice of acceptance to make an agreement of guaranty of a note binding is necessary where such agreement acknowledges the receipt of a valuable consideration moving from the creditor to the guarantor.

8. Guaranty, § 36a* — when notice of acceptance shown. In an action on a written guaranty of a note, evidence held sufficient to show that defendant received notice of the acceptance of his contract of guaranty.

9. Guaranty, § 36a* — when shown that execution was authorized. In an action- on a written guaranty of a note, evidence held to show that defendant authorized the execution of the guaranty on his behalf.

10. Appeal and error, § 1078* — what is effect of failure to file cross error. A defendant, and appellee, is bound by a special finding upon which he assigns no cross error.


text:
    Edward F. Lyons, trading as Auto Tire Sales Company, Appellant, v. United States Fidelity & Guaranty Company, Appellee.
    Gen. No. 23,557.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 131

       — what merchandise not covered "by burglary policy. A burglary insurance policy on merchandise located on the main floor of a building at certain numbers on a specified street cannot be extended so as to make it cover merchandise contained in a shed to which no reference is made in the policy.
    2. Insurance — when shown not to be intention to cover property on other than described premises by burglary policy. In an action on a burglary insurance policy to recover for the loss of merchandise in a shed not connected with the described premises and located in the rear of a lot on another street, where it appeared that prior to the loss plaintiff had a conversation with the agent of defendant concerning insurance on the merchandise contained in the shed, and, after this conversation, such agent, who also represented the fire insurance company that had issued fire policies on the merchandise in the store, found, upon investigation, that the shed should have been described differently than it was described and the fire policy changed so as to cover the merchandise in the shed as well, hut no change was made in the burglary policy, evidence TieW sufficient to show that the merchandise contained in the shed was not intended to be and was not included in the burglary policy.

      Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Edward F. Lyons, trading as Auto Tire Sales Company, plaintiff, against United States Fidelity & Guaranty Company, defendant, on a burglary insurance policy, for the value of merchandise stolen from premises occupied by plaintiff. From a judgment of nil capiat, plaintiff appeals.
    Litzinger, Healy & Reid, for appellant.
    Zimmerman, Garrett & Rundall, 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:
    Earline Durrell, Plaintiff in Error, v. Robert T. Durrell, Defendant in Error.
    Gen. No. 23,570.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Petition by Earline Durrell, plaintiff, against Robert T. Durrell, defendant, for restoration of a decree for alimony. From a decree dismissing the petition for want of equity, plaintiff brings error.
    P. J. O’Shea, for plaintiff in error.
    McCulloch & McCulloch, for defendant in error; Bertram W. Rosenstone, 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. Divorce, § 134 — what is ground for discontinuance of alimony. A decree for the payment of alimony is properly changed so as to discontinue further monthly instalments where it appears that the wife is leading a life of prostitution.

2. Divorce, § 134* — when validity of order discontinuing alimony may not he questioned. A wife who consents in writing to an order of court discontinuing payment. of future monthly instalments of alimony is precluded from questioning the validity of such order.


text:
    John V. Zelezny, Administrator, Appellant, v. Birk Brothers Brewing Company and Emanuel F. Napieralski, Appellees.
    Gen. No. 23,578.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by John V. Zelezny, administrator of the estate of Frank Brehovsky, deceased, plaintiff, against Birk Brothers Brewing Company, a corporation, and Emanuel F. Napieralski, defendants, to recover damages for the negligent death of said Brehovsky. From a judgment on a directed verdict in favor of both defendants, plaintiff appeals.
    Walter True, for appellant; James S. Wight, of counsel.

      Abstract of the Decision.
    1. Trial, § 195

       — when verdict for defendant should not he directed. Where a motion to direct a verdict for a defendant is presented, the evidence most favorable to plaintiff must be considered as true, with all reasonable inferences that can be drawn therefrom, and if, from such evidence, standing alone, it can be reasonably said or inferred that it proves the material averments of the declaration, a verdict for the defendant should not be directed.
    2. Automobiles and garages, § 3* — when negligence of driver of automobile is question for jury. In an action for the death of the driver of a hearse whose horses while standing in the street were alleged to have been frightened by the contributing negligence of two defendants whose machines approached the standing team from opposite directions, evidence that the machine of one of the defendants passed so close to the team as to scrape the tip of the pole presents a question for the jury as to the negligence of such defendant.
    3. Tbial, § 216* — determination of rights of defendant as of time of motion for directed verdict. Where a defendant elects to stand by its motion for a directed verdict in a negligence case made at the close of the plaintiff’s case, its rights thereunder must be determined as of the time when the motion was made, notwithstanding a codefendant subsequently introduces evidence on his own behalf.
    4. Appeal and ebbob, § 1793* — when judgment reversed as to both defendants. Where in an action against two defendants, one of the defendants, at the close of plaintiff’s case, moved for a directed verdict and upon the denial of the motion elected to stand by its motion, and thereafter the court of its own motion directed a verdict in favor of both defendants during the argument to the jury, a decision on appeal that a verdict was improperly directed as to the other defendant requires a reversal as to both even though the motion for a directed verdict by the defendant at the close of plaintiff’s case was improperly denied.
    5. Automobiles and garages, § 3* — when verdict should be directed in favor of defendant in action for death of hearse driver.
      In an action for the death of the driver of a hearse whose horses while standing in the street were alleged to have been frightened by the contributing negligence of two defendants whose machines approached the standing team from opposite directions, plaintiff’s evidence that the machine of one of the defendants was driven slowly on the proper side of the street coming to a stop shortly after the driver of the hearse signaled that his horses were frightened, held, to require a directed verdict for such defendant.

      Frank M. Cox and R. J. Fellingham, for appellees.

      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:
    Robert Schrayer, trading as M. Schrayer’s Sons & Company, Appellee, v. C. Doering & Son, Appellant.
    Gen. No. 23,591.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Robert Schrayer, trading as M. Schrayer’s Sons & Company, plaintiff, against C. Doering & Son, a corporation, defendant, to recover for goods, wares and merchandise. Prom a judgment for $250.23 entered by default after defendant’s affidavit of defense had been stricken from the files, defendant appeals.
    Baker & Holder, for appellant.
    David Jetzinger, for appellee.
   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Coubt of Chicago, § 13* — when error to strilce affidavit of defense from files. If an affidavit of defense sets forth a legal defense to any part of plaintiff’s claim, it is error to strike the affidavit from the files.

2. Municipal Coubt of Chicago, § 13* — when affidavit of defense is sufficient. In an action in the Municipal Court of Chicago to recover for goods, wares and merchandise under a written contract, an affidavit of defense states a good defense where it states that certain items in plaintiff’s statement of claim were samples furnished gratis to defendant and that owing to an advance in price of the merchandise plaintiff failed to make delivery as agreed upon in the contract, and that by reason of the breach of the contract defendant was obliged to purchase merchandise elsewhere at an increased price; that by reason thereof defendant sustained damages in excess of plaintiff’s claim for merchandise delivered, and that at the times when payment became due for merchandise delivered defendant offered to set off against the amounts due plaintiff damages due to plaintiff’s nondelivery of merchandise.


author: Mr. Justice Matchett

text:
    Bertha Mayer, Plaintiff in Error, v. Illinois Life Insurance Company, Defendant in Error.
    Gen. No. 23,148.
    1. Evidence, § 345

       — when oral contemporaneous evidence is inadmissible to vary terms of contract. In the absence of fraud or mistake a written contract is presumed to set out fully and completely the agreement -of the parties with reference to the subject-matter thereof, and all prior negotiations are presumed to be merged in the contract and oral contemporaneous evidence is inadmissible to vary the terms thereof.
    2. Insurance, § 120* — how ambiguity in contract construed. An ambiguity in an insurance contract is to.be construed in favor of the beneficiary.
    3. Insurance, § 621* — when oral evidence is admissible. Where a loan certificate was executed by the insured as part of a transaction involving a change in his policy, oral evidence of such transaction is properly admitted, since it does not tend to vary the terms of the contract of insurance but serves to identify the real contract entered into by the parties.
    4. Contracts, § 190

       — when different instruments should be construed together. Where different instruments are executed between the same parties relating to the same subject-matter, all of the instruments should be construed together in determining the real intention of the parties, and this is true whether the instruments are executed at the same time or at different times.
    5. Evidence, § 350* — when parol is admissible. Parol evidence is admissible for the purpose of showing that different instruments do, in fact, relate to and are part of the same transaction, since such evidence tends merely to identify the real contract and not to vary or change its terms.
    6. Evidence, § 330* — when parol is admissible. Parol evidence is admissible to show that the actual consideration of a written contract is different from the consideration recited therein.
    7. Evidence, § 330* — what is effect of recital of consideration in contract. The recital in a written instrument of the consideration therefor is prima facie only, and it can be explained, varied and contradicted by parol proof, the only limitation being that the effect of such proof must not be to defeat the grant, transfer or contract so as to render the instrument itself void.
    8: Insurance, § 621* — when parol evidence is admissible to show actual consideration for policy. Where, as part of the consideration for a change in a life insurance policy previously issued to the insured, the latter executed a loan certificate to the insurer, parol evidence of such facts is properly admitted as showing the actual consideration for the new policy.
    9. Insurance — when loan certificate operates as lien upon policy. The fact that a loan certificate executed in favor of an insurance company by a policyholder in part consideration for a change in his policy was dated prior to the issuance and date of the new policy does not prevent the certificate from operating as a lien upon the policy, where both the execution of the certificate and the issuance of the new policy in fact constituted a single transaction.
    10. Insurance — what does not restrict power to loan money to policyholders. Provisions in a policy of life insurance limiting loans to the reserve value of the policy and making it obligatory upon the insurer to make loans upon the policy to that extent do not operate to restrict the company from making loans at other times and in different amounts if it should choose to do so.

      11. Insurance — what does not restrict rate of interest on loans to policyholders. Provisions in a policy of life insurance fixing a certain rate of interest as a basis' for calculating the net amount of the reserve under the policy do not restrict the rate" of interest on loans made on the policy, by the insurer, to the rate so fixed.
    12. Corporations, § 334

       — who must prove defense of ultra vires. The defense of ultra vires must be proved by the party alleging it.
    13. Insurance — what does not preclude offsetting of amount of loan certificate. An “incontestable” clause in a policy of life insurance does not preclude the insurance company from offsetting the amount of a loan certificate executed as part of the transaction upon the issuance of the policy, since such a claim concedes the validity of the policy and seeks merely to impose a lien upon the proceeds thereof.
    14. Insurance — when lien against policy may be created by loan certificate. Where a policy of life insurance reserves to the insurer the right to change the beneficiary he may validly create a lien against it by the execution of a loan certificate.
    15. Insurance, § 503* — what is nature of beneficiary’s rights where right to change beneficiaries is reserved. Under a policy of life insurance reserving to the insured the right to change the beneficiary, the latter’s right under the policy is a mere expectancy subject to revocation by the insured up to the time of his death.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Leo Koretz and John A. Irrmann, for plaintiff in error.
    Henry W. Price and Hugh T. Martin, for defendant in error.

      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 Matchett

delivered the opinion of the court.

Plaintiff in error sued defendant in error in the Municipal Court of Chicago on a policy of insurance issued to her deceased husband, Henry Mayer, in which she was named as beneficiary.

The case was tried by the court without a jury and this writ of error is brought to review a judgment in favor of the defendant.

The controversy arose by reason of the claim on the part of the defendant of the right to retain from the proceeds of the policy the principal and interest amounting to $3,860.09, represented by a certificate of loan executed and delivered by Henry Mayer to the defendant at the time he made application for the policy sued on.

By stipulation of the parties and without prejudice to their respective rights, the amount conceded to be due upon the policy amounting to $6,475.97 was paid after suit brought.

■Defendant in error is the successor of the Bankers & Merchants Life Insurance Company, an Illinois corporation, which did business on the assessment plan.

On October 3, 1894, said company issued -a policy on the life .of said Henry Mayer in which plaintiff was named as beneficiary. It was called a ‘ ‘ stipulated premium policy” because periodical payments were made in lieu of mortuary assessments, although the holder under the terms of the policy could become liable for such assessments in case it became necessary to levy them. Upon this policy defendant became obligated as the successor to said Bankers & Merchants Life Insurance Company.

On June 2, 1902, Henry Mayer made application in writing to defendant for a new policy for $5,000 on the 20-year payment plan and in the application requested the new policy to be issued to him as of the age of 53 years (although he was in fact 61 years of age), the premium to be fully paid in 12 years, and in consideration of this new policy he agreed to surrender all right, title and interest under the old one.

In connection with the agreement to surrender the old policy there was a blank space in the application with this statement under it “Company authorized to fill in policy number.”

At the same time Henry Mayer executed and delivered to the defendant the certificate of loan in controversy which, as a matter of fact, was attached to and a part of his application. The paper upon which the certificate of loan was written was perforated so it could be detached from the application. It was after-wards detached and placed in defendant’s files.

The application and loan certificate each purported to be executed on April 3, 1902. The certificate of loan stated that the Illinois Life Insurance Company had loaned on the new policy the sum of $2,386.80 “which, with any additional loan, shall be a lien on said policy until paid; simple interest at the rate of six per cent, per annum to be added thereto until the end of the distribution period of said policy, at which time the profits accruing to it shall be used toward the payment of said loan, and any excess paid in cash or nsed as set forth in the policy, at the option of the insured. * * *” It also provided, “In event of my death or failure to make any payment when due to said company before said loan is fully paid, the amount remaining unpaid shall become due and be deducted from the amount payable under said policy.”

The policy of insurance was issued on June 3, 1902, but the insurance given by its terms was as of the date of April 3, 1894. While the new policy purported to be for $5,000, it provided for the payment of much larger sums in ease of death. In such event, the first year after its execution $7,527.56 would become due, while in the twentieth year the sum to be paid would amount to $10,616.80. It further provided for the payment of a premium of $401.20 as of April 3, 1894, and a like sum each year until twenty annual payments of that amount should be made. It credited insured with eight of such premiums as already paid.

Appellant states the transaction in a way which appellee characterizes “very fair” as follows:

“Mayer wanted this particular form of policy and to secure it he was asked not only to surrender and cancel his old policy, but to give something in addition. This something was a certain amount of money to make a consideration, together with the value of his old policy, equivalent to the value of the new policy he was to receive. He did not have the cash to pay the amount of $2,386.80, so the Illinois Life agreed to take a loan certificate from him for the amount, just as though the policy had been issued long before.”

It is the contention of the plaintiff that the contract of insurance between the defendant company and .the insured was fully and completely expressed and set forth in the policy of insurance; that the policy stated therein the insurance was granted in consideration of the written and printed application of the policy “which is hereby made a part of this policy”; that because of these specific recitals of consideration contained therein, the loan certificate ought not to have been allowed in evidence to modify, alter, explain, vary or contradict the terms of the policy itself; that the language used was unambiguous and if there was any ambiguity, it should have been resolved in favor of the beneficiary; that in the absence of fraud or mistake, all previous verbal agreements were merged into this written contract of insurance which must be conclusively presumed to contain the entire agreement of the parties with all the conditions of its fulfillment then contemplated.

On these grounds plaintiff objected to the introduction in evidence of the loan certificate, and the alleged error of the court in permitting it to be received is the principal matter urged.

In the absence of fraud or mistake a written contract is presumed to fully and completely set forth the agreement of the parties with reference to the subject-matter thereof. All prior negotiations are presumed to be merged in such contracts, oral contemporaneous evidence is inadmissible to vary the terms thereof, and an ambiguity in a contract of insurance must be construed in favor of the beneficiary. These are rules of law which are elementary and do not require the citation of authorities.

We think, however, the court did not err in admitting the loan certificate in evidence for two reasons:

In the first place, the oral evidence received and which laid the foundation for the introduction of the loan certificate was not evidence which tended in any way to vary the terms of the contract. That evidence was introduced and, we think, properly received by the court for the purpose of identifying the real contract and not for the purpose of changing its terms. Where different instruments are executed between the same parties relating to the same subject-matter, all of the instruments should be construed together in determining the real intention of the parties. Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396; People v. Economy Light & Power Co., 241 Ill. 290; Crandall v. Sorg, 198 Ill. 48. This is true whether the various instruments are executed at the same time or at different times. Stacey v. Randall, 17 Ill. 467; Crandall v. Sorg, 198 Ill. 48. The evidence by which the loan certificate was made admissible was precisely the same kind of testimony as that by which the policy was rendered admissible, to wit, proof of its due execution and delivery. Oral evidence is admissible for the purpose of showing that different instruments do, in fact, relate to and are a part of the same transaction, but such evidence tends only to identify the real contract and not to vary or change its terms.

In the second place, there is a well-defined exception to the general rule that oral evidence cannot be introduced to vary the term's of a written contract, the exception being that the actual considerations upon which the contract was made may be proved by parol evidence to be contrary to the recitals of the written contract.

The recital in a written instrument of the consideration therefor is prima facie only, and is not conclusive and it can be explained, varied and contradicted by parol proof, the only limitation upon this rule being that the effect of this proof must not be to defeat the grant, transfer or contract made by such instrument so as to make the instrument itself void. Seacord v. Seacord, 160 Ill. App. 328; Brosseau v. Lowy, 209 Ill. 405; Russell v. Robbins, 247 Ill. 510; Lloyd v. San-dusky, 203 Ill. 621; Crane v. Chandler, 190 Ill. 584; Merriman v. Schmitt, 211 Ill. 263. As the execution and delivery of the loan certificate related to the consideration for the policy of insurance, oral evidence to show the true facts was properly received. In some States this rulé has been changed by statute as to policies of insurance, but where not so changed the rule applies to insurance as well as other contracts. Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335.

Appellant argues as the certificate of loan is dated April 3rd and the policy June 3rd thereafter, the certificate could not become a lien upon the policy for the reason that the policy was not yet “in being” at the time the loan certificate was executed, but this view disregards the facts in evidence which show that while the policy and application (including the certificate of loan) were of different dates, the execution and delivery of them constituted a single transaction and the provisions thereof became effective at the same time. The lien under the certificate of loan came “in being” at the same time as the policy.

Appellant next urges that defendant was without power to make this loan because the amount of the loan was greater than the sum total of the reserve of the policy'. An examination of the provisions of the policy relied on shows that these provisions refer to the positive obligation of the Insurance Company to make a loan to the insured and the limitations upon such obligation, but do not in any way restrict the power of the company to make loans at other times and in different amounts in case it should desire to do so.

It is next contended that the loan certificate cannot represent a loan under the policy because it bears interest at 6 per cent, and it is claimed that the policy provides that a loan shall be made thereon at 4 per cent. However, the rate of 4 per cent, which is mentioned in the policy appears upon examination to refer not to the rate of interest to be charged the insured, but to the rate of interest which shall be used in determining the net' amount of the reserve. This reserve is a matter of mathematical computation which depends upon the table of mortality and the rate of interest which is adopted.

Appellant next urges that the Insurance Company was without power to make a loan of this kind. The defense of ultra vires must be proved by the one alleging it and, if there be any such restrictions upon the powers of the defendant corporation, we cannot find the proof thereof in this record.

It is also urged that the claim of defendant under the certificate of loan is inconsistent with this clause of the policy: “This policy shall be incontestable for the breach of any of the provisions hereof occurring after two years from the date of issue, excepting only the failure to pay premiums, as required herein.”

We do not think the claim for lien of defendant is inconsistent with this clause. Appellee does not contest the policy, but on the contrary concedes that it is valid and claims under the provisions of the loan certificate a lien upon the proceeds thereof. If the loan certificate is not valid, the premiums upon the policy have not been paid and it might be contestable on that ground.

Other points are urged by appellant which we do not think it necessary to consider.

Appellate Courts of this State in two districts have passed upon similar questions to those arising in this record and in each case the decision has been adverse to the contentions of plaintiff in error. James v. Franklin Life Ins. Co., 180 Ill. App. 632; Noth v. Fidelity Mut. Life Ins. Co. of Philadelphia, 211 Ill. App. 94.

Appellant seeks to distinguish those cases in that the suits there were in each case brought by the holder of the policy and not the beneficiary thereunder. We do not think this would make any difference. The policy reserved to Henry Mayer the absolute right to change his beneficiary at any time. Plaintiff’s right under the policy up to the time of her husband’s death was a mere expectancy which might have been defeated through his power to revoke her appointment as beneficiary. If he could in such a manner entirely defeat any claim of plaintiff under the policy, on what theory can it be urged that he might not in part defeat it by creating a lien against the sums of money to become payable thereunder?

We think the whole contract which was contained in the application, certificate of loan and the policy was fair and just; that the trial court properly construed the same and that there is no error in the rec-

ord. The judgment will, therefore, be affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Defendant in Error, v. Mando Rammesathi, Plaintiff in Error.
    Gen. No. 23,357.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.

      Abstract of the Decision.
    1. Roads and bridges, § 239

       — when negligence in leaving team, unfastened, and unattended shown. In an action for the death of a boy who was killed while playing upon the sidewalk by defendant’s team, which had run away after being left unguarded and unfasened in a public street in violation of ordinance, evidence held to show defendant’s negligence and that death resulted from the injuries sustained in consequence thereof.
    2. Death, § 67* — when verdict not excessive. A verdict for $3,000 held not excessive for the death of a boy 5 years of age.
    3. Trial, § 54* — when denial of motion to withdrew) juror is proper. Denial of defendant’s motion to withdraw a juror where defendant claimed surprise on account of the death of a stenographer who had taken the testimony of one of plaintiff’s witnesses at the coroner’s inquest, defendant desiring to impeach such witness by the stenographer’s notes, was proper where the testimony of such witness at the inquest might have been obtained from the official record of the coroner.
    Statement of the Case.
    Action by John F. Devine, as administrator of the estate of Rudolph Kranrp, deceased, plaintiff, against Mando Rammesathi, defendant, to recover for the wrongful death of plaintiff’s intestate. From a judgment for plaintiff for $3,000, defendant brings error.
    Ernest Saunders, for plaintiff in error.
    Frederic C. Ellis and Frank C. Kuhn, for defendant in error; Charles C. Spencer, of counsel.

      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.


author: Mr.. Justice Matchett

text:
    Thordorson Electric Manufacturing Company, Appellant, v. Hub Electric Company, Appellee.
    Gen. No. 23,382.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 329

       — when shown that contract was between plaintiff and defendant. In an action for the purchase price of goods, evidence held to show that the contract for the purchase of the goods was entered into between the plaintiff and the defendant and not between the defendant and a company which, under a contract with the plaintiff, had the exclusive agency for the sale of the goods.
    Appeal from the Municipal Court of Chicago; the Hon. John R Cavebly, Judge, presiding. Heard in the Branch- Appellate Court at the October term, 1917.
    Reversed, with finding of facts and judgment here.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Thordorson Electric Manufacturing Company, plaintiff, against Hub Electric Company, defendant, to recover the purchase price of certain goods sold defendant. From a judgment in favor of defendant, plaintiff appeals.
    Lambert & Mayer, for appellant.
    Christian Meier and Richards, Voigt & Darby, for appellee.

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

   Mr.. Justice Matchett

delivered the opinion of the court.


text:
    Mrs. Louis A. Herbert, Appellee, v. W. C. Mahon Company, Appellant.
    Gen. No. 23,430.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 282

       — when evidence warrants finding as to implied warranty. Evidence held to justify a finding of an implied warranty that a sealskin coat purchased by plaintiff from defendant would be reasonably fit for the purposes for which it was bought.
    2. Sales, § 282* — when shown that defect in coat could not have leen detected prior to delivery. In an action by the purchaser of a sealskin coat to recover the purchase price paid on account of defects in the dyes used, evidence held to sustain the findings of the trial court that an examination of the coat by plaintiff prior to its delivery to her was not sufficient to have enabled her to discover the defect.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Mrs. Louis A. Herbert, plaintiff, against W. C. Mahon Company, defendant, to recover the amount paid for a sealskin coat purchased by plaintiff f^om defendant on the ground that the dyes used on the skins were defective. From a judgment for plaintiff, defendant appeals.
    D. H. Mann and M. J. Sullivan, for appellant.
    Walter H. Eckert, for appellee.

      See Illinois Notes Digest, Vols, SI 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. Sales, § 141 — when seller liable for negligence in selection of articles. In an action by the purchaser of a sealskin coat to recover the purchase price paid thereon on account of defects in the dyes used, even though defendant’s contention, that as the sale was one of a specified article under its patent or trade name there could be no implied warranty of its fitness for any particular purpose, was conceded, defendant might still be held liable for negligence in its selection of the articles delivered.


text:
    James F. Bishop, Administrator, Appellee, v. International Harvester Company of New Jersey, Appellant.
    Gen. No. 23,489.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by James F. Bishop, administrator of the estate of John Karas, deceased, plaintiff, against International' Harvester Company of New Jersey, a corporation, defendant, to recover upon a death benefit certificate issued by defendant’s Employes’ Benefit Association. From a judgment in favor of plaintiff, defendant appeals.
    David A. Orebaugh, for appellant.
    John J. Sonsteby, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

Abstract of the Decision.

Instjbance, § 860 — who has right of action on death benefit certificate. Under a certificate in a benefit association providing that benefits should be payable to “my father and mother jointly, or the survivor; or, if neither be living, then to my next of kin, payment in behalf of such next of kin to be made to my legal representative,” in the absence of proof that the father and mother are dead the right of action lies in them, or in the survivor of them, and not in the administrator of the insured.


text:
    Yellow Cab Company, Appellee, v. John G. Carlsen, Appellant.
    Gen. No. 23,501.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 3* — when negligence of driver of one of colliding automobiles is shown. Proof that, at the time of a collision between defendant’s automobile and another machine, defendant was driving on the wrong side of the street at a speed of about 20 miles per hour, establishes the charge of negligence.

      Appeal from the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917,
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Yellow Cab Company, a corporation, plaintiff, against John G. Carlsen, defendant, to recover damages caused by a collision between an automobile owned by plaintiff and one driven by defendant. From a judgment in favor of plaintiff, defendant appeals.
    A. R. Hulbert, for appellant.
    Johnston, Costello & Blair, for appellee.

      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. Automobiles and garages, § 3 — necessity of showing exercise of due care. In an action for damages caused by a collision between two automobiles, it is necessary for plaintiff to prove that at the time of the accident he was in the exercise of due care.

3. Appeal and error, § 1414* — what weight given findings of trial court. Findings of the trial court, in a case tried without a jury, upon the issue of contributory negligence are entitled to the same weight upon appeal as the verdict of a jury.


text:
    Madison Maginn, Appellee, v. Joseph levy, Appellant.
    Gen. No. 23,514.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Madison Maginn, plaintiff, against Joseph Levy, defendant, to recover upon a contract for the installation of a ventilating system in defendant’s premises. From a judgment for plaintiff, defendant appeals.
    Ela, Grover & March, for appellant; Charles C. Bombaugh and Mortimer C. Grover, of counsel.
    Charles C. Spencer, for appellee.

      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.

Abstract of the Decision.

1. Pleading, § 395 — what is effect of verified plea of non est factum. In an action upon a written contract, a verified plea of non est factum denying the execution of the instrument places upon the plaintiff the burden of proving its due execution as at common law.

2. Contracts, § 385* — when execution of contract not shown. In an action upon a written contract where defendant interposed a verified plea of non est factum, evidence held insufficient to sustain plaintiff’s burden of proving the execution by defendant of the instrument sued on.


text:
    William O. Holmberg, Appellee, v. General Electric Company, Appellant.
    Gen. No. 23,533.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fishes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by William O. Holmberg, plaintiff, against General Electric Company, defendant. Defendant was garnishee below in a proceeding whereby it was sought to recover for the use of W. O. Holmberg, a judgment creditor of one Charles P. Murchison. From a judgment against defendant for $189.60, it appeals.
    Cummins, Roemer, Flynn, Milkewitch & McKenna, for appellant.
    Joseph E. Winterbotham, for appellee.

      Abstract of the Decision.
    Gabnishment, § 66

       — when garnishee not liable. Payment of wages in advance by an employer after the service of a garnishment writ does not render him liable in the garnishment proceedings.

      See Illinois Notes Digest, Vols. £1 to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Clinton O. Shepherd, Trustee, Plaintiff in Error, v. Abraham L. Weber, Defendant in Error.
    Gen. No. 23,554.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Bill by Clinton 0. Shepherd, complainant, against Abraham L. Weber, defendant, setting up that complainant had recovered a judgment by confession against defendant for unpaid instalments of rent; that defendant continued to collect the rent from subtenants and that he was insolvent, and praying for an accounting, an injunction and a receiver. Defendant filed a cross-bill averring a breach in some of the conditions of the lease by complainant and praying damages and a cancellation of the lease. From a decree for defendant on the cross-bill, complainant brings error.
    S. L. and Fred Lowenthal, for plaintiff in error.
    David Jetzinger, for defendant in error.

      Abstract of the Decision.
    Landlobd and tenant, § 264

       — what does not constitute constructive eviction. The furnishing of inadequate janitor and elevator service by the lessor in violation of the terms of the lease does not constitute a constructive eviction, nor give the lessee the right to cancel the lease.

      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:
    Edward A. Civilinski, by Julia Civilinski, Appellee, v. S. Mason Meek, Appellant.
    Gen. No. 23,564.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Habby C. Mohan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Edward A. Civilinski, by Julia Civilinski, his next friend, plaintiff, against S. Mason Meek, defendant, to recover damages for personal injuries sustained as the result of a defective handrail on a stairway used in connection with premises in which plaintiff lived with his parents under lease from defendant. From a judgment for plaintiff for $350, defendant appeals.
    Meek & McDonald, for appellant; Elliot Evans, of counsel.
    Jones & Keener, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 479

       — when error in instructions may not be complained of. Failure to object or take exception to instructions in the trial court precludes complaint on appeal that the instructions were erroneous.
    2. Appeal and error, § 438* — when objection as to variance is too late. Failure to object to the admission of evidence constituting a variance or to move to exclude it renders an objection to the evidence untenable on appeal.
    3. Appeal and error, § 450* — when error in admission of expert evidence is not reviewable. Admission of expert testimony without properly qualifying the witness is not reviewable where no objection to his testimony nor motion to strike appears in the record.

      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:
    Lawrence Newton, Appellee, v. E. J. Ohrenstein, Appellant.
    Gen. No. 23,661.
    (Not to be reported in full.)
    ■ Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Lawrence Newton, plaintiff, against E. J. Ohrenstein, defendant. From a judgment for plaintiff, defendant appeals. Appellee’s motion to strike the stenographic report was granted and the report ordered stricken, and motion by appellant to set aside that order was reserved to the hearing.
    Bunge, Harbour & Schmidt, for appellant.

      Abstract of the Decision.
    Municipal Court of Chicago, § 26* — when certificate is insufficient as basis for subsequent entry of nunc pro tunc order by judge signing stenographic report. A certificate by a judge of the Municipal Court of Chicago, executed on the date of the expiration of an extension of the time for filing the stenographic report, that, in the absence from the city of the trial judge, the document was presented to the certifying judge in open court to be signed, is not sufficient basis for the subsequent entry of a nunc pro tunc order by the trial judge signing the report as of such date, in the absence of an affirmative showing of due diligence on the part of appellant by certificate of the trial judge.
    Comerford & Cohen, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    Edward M. Corwin, Appellee, v. L’Anse Quarries Company et al., on appeal of Charles T. Lundstrom, Appellant.
    Gen. No. 23,607.
    . Evidence, § 322

       — when parol is admissible to show that guaranty did not refer to collection of notes. Where a contract under which certain notes signed by a third person were to be accepted in part payment recited that: “Said notes which said * * * [defendant] guarantees, were acquired from said O’Brien for value and that said makers of notes are bona fide and have no defense whatever to refuse payment of same,” the comma after the word “guarantees” renders the sentence ambiguous, and parol evidence is admissible to show that the guaranty did not refer to the collection of the notes but to their source, consideration and authenticity.

      Appeal from the Municipal Court of Chicago; the Hon. Chasms N. Goomsrow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 15, 1918.
    George W. Brown, for appellant.
    Charles S. McNett, for appellee; Edward M. Burke, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the appellant, Charles T. Lundstrom, from a judgment for $624 rendered in favor of the appellee, Corwin, against appellant Lundstrom, L’Anse Quarries Company, a corporation, and W. H. O’Brien, on two promissory notes made by L’Anse Quarries Company, indorsed by W. II. O’Brien and alleged to be guaranteed by appellant, Lundstrom. By a written contract of July 24, 1916, appellant agreed to purchase from appellee certain real estate for the sum of $9,700. At the time of the contract of purchase, appellant paid down $100 as earnest money. By the contract of purchase appellant agreed to take the property subject to a first mortgage of $5,000 at 5y2 per cent, and the second mortgage of $2,100 at 6 per cent. The balance of the purchase price, that is, $2,500, was to be paid as follows: $900 in cash, $1,000 in certain bonds and $600 in the form of two notes. The provision in the contract as • to the two notes — and which constitutes the basis of this contest — is as follows: “Also two notes of Two Hundred ($200.00) and Four Hundred ($400.00) Dollars respectively, executed by L’Anse Quarries Company and indorsed by W. H. O’Brien, President of said Company. Said notes are dated July 22nd, 1916, and are due respectively in three and four months from date of execution. Said notes which said Lundstrom guarantees, were acquired from said O’Brien for value and that said makers of notes are bona fide and have no defense whatever to refuse payment of same.”

The appellee offered in evidence the written contract and the two notes and rested. The appellant, after admitting the signing of the contract, offered to prove that appellee asked appellant to guarantee the notes by writing his name on them; that appellant refused to do so; that he told him he would not guarantee the notes in that way; that he said he knew the notes were bona fide notes but that he would not guarantee the collection of them or the payment of them; that at the time of the closing of the contract he, appellant, said that he would guarantee that the two notes were acquired from O’Brien for value and that the makers of the notes were bona fide and had no defense ; that before closing the contract appellee visited O ’Brien and made inquiry as to his financial responsibility and also of the L’Anse Quarries Company, and that appellee “said that he was satisfied that he was responsible”; that at the beginning and before the contract was signed appellee “had asked that the notes be guaranteed in the ordinary way, and that Lundstrom had refused to do this, and that the negotiations were then stopped”; that at the time of the execution of the contract “the subject-matter of the guaranty was discussed by Lundstrom and Corwin, and he said he understood that the notes were bona fide, and that O’Brien had no defense to make”; that in view of that conversation he refused to sign his name to the notes as a guarantee and that'“he did not guarantee the collection or payment of them.”

The trial judge, pursuant to objection by the appellee, refused to admit the evidence offered. Judgment was then entered on March 23,1917, in the sum of $624 against L’Anse Quarries Company, W. H. O’Brien and Charles T. Lundstrom (appellant).

Practically the sole question in the case arises by reason of the words: “Said notes which said Lundstrom guarantees, were acquired from said O’Brien for value and that said makers of notes are bona fide and have no defense whatever to refuse payment of same. ’ ’ As the words stand, they are ambiguous. The sentence which is to be interpreted is not well drawn; it is not grammatical, it cannot be parsed, and it does not make good sense. If the comma placed after the word “guarantees” were elided, a fairly reasonable construction of the meaning of the sentence would be that the defendant merely guaranteed (1) that the notes were acquired from O’Brien for value; (2) that the makers of the notes were not fictitious and (3) that they had no defense to a suit upon them. On the other hand, undertaking to interpret the words as they are, with the comma in place, the first six words become more or less incompatible with the rest of the sentence. There is, then, an obvious ambiguity. Of course, there are certain well-known principles of procedure, as well "as of interpretation, to be borne in mind. The appellee, seeking to recover on the alleged guaranty must prove by a preponderance of the evidence that the writing expresses a definite intelligible promise of guaranty on the part of the appellee. He must put in evidence something more than an ambiguous writing which leaves the mind in doubt. The record shows that the appellant undertook to offer evidence in regard to certain circumstances which transpired at or about the time of the execution of the contract in question in order to show to what the word “guarantees” applied, and that the trial judge ruled it out as inadmissible. Evidently the trial judge excluded the evidence which was offered on the ground that it tended to vary the terms of the written instrument. There, however, is a well-known exception to the general rule, and where “The purpose of all such evidence is to ascertain in what sense the parties themselves used the ambiguous terms in the writing which sets forth their contract” (Stoops v. Smith, 100 Mass. 63) it is admissible. It may be said that the words herein involved, as they stand, are intrinsically indefinite, incomplete as an expression of ideas and that, unless resort is had to extrinsic evidence, we are not capable of making a satisfactorily rational interpretation. The question is, what was the object of the word “guarantees.” It becomes necessary, therefore, to identify that object. In many cases evidence has been admitted to show what physical objects were meant where the words in the various instruments were ambiguous. The principle has been applied frequently to descriptions in deeds, where there is generally some definite physical thing to which reference was intended, which was familiar to the parties but not to the court, and where “the words used must be translated into things and facts by parol evidence.” Doherty v. Hill, 144 Mass. 468. In Pfeifer v. National Live Stock Ins. Co., 62 Minn. 536, where a policy of insurance on two horses was canceled in writing so as to “cover one horse only,” evidence was admitted to show which horse was intended. In Ripon College v. Brown, 66 Minn. 179, 68 N. W. 837, where the word “which” gave rise to an ambiguity, as to whether both or only one of two mortgages was assumed, evidence of the understanding of the parties was admitted for the purpose of interpretation. What was meant by the word “incumbrances” in a warranty deed was allowed to be shown in Gill v. Ferrin, 71 N. H. 421. In Waldheim v. Miller, 97 Wis. 300, evidence that the words “guarantee account of Bliven” meant a future account only, and not a past account, either of which they might have meant, was admitted. In the instant case it is not clear as to just what is guaranteed, and, so, if the parol evidence when admitted shows that the word “guarantees” refers to the obligation to pay, or if, on the other hand, it shows that it refers to the source, consideration, authenticity and that the maker has no defense, neither party is legally injured and only in that way may exact justice be done. That a fair and rational interpretation of the words actually used may be made, the extrinsic evidence is not only competent, but necessary.

Owing to the error of the trial court in rejecting the proffered evidence, the judgment is reversed and the" cause remanded.

Reversed and remanded.


text:
    Perry H. Caldwell, trading as Sixty-Third and Halsted Garage, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 23,620.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 15, 1918.
    Statement of the Case.
    Action by Perry M. Caldwell, trading as Sixty-Third and Halsted Garage, plaintiff, against Chicago City Railway Company, defendant, to recover for damage to an automobile owned by plaintiff, as the result of a collision with one of defendant’s street cars. From a judgment in favor of defendant, plaintiff appeals.
    Joel C. Carlson, for appellant.
    William: H. Symmes and Frank L. Kriete, for appellee; J. R. Guilliams and E. C. Stearns, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1414 - — when finding of trial court not disturbed. The finding of the trial court without a jury will not be disturbed where the evidence is conflicting, unless it is against the manifest weight of the evidence, and in considering the weight of the evidence the Appellate Court will consider the superior opportunity of the trial court in that it sees and hears the witnesses.

2. Street railroads, § 131* — when shown that street car was not operated at negligent rate of speed. In an action by the owner of an automobile for damages caused by a collision between the automobile and a street car at a street intersection, evidence held to sustain the trial court’s findings that the street car was not operated at a negligent rate of speed.

3. Trial, § 91* — when objection to testimony is insufficient. An objection to testimony is not sufficient where after the trial judge had held the testimony competent counsel making the objection acquiesced, stating that it was probably part of the res gestos.