text:
    The Evan L. Reed Manufacturing Company, Appellee, v. Charles P. Wurts, Appellant.
    Gen. No. 18,764.
    1. Insurance, 1 67

      —liability of agent for breach of contract to procure insurance. If an agent neglects to procure insurance or does not follow instructions when obligated to do so, or if the policy obtained is void or materially defective through the agent’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the agent which constitutes a breach of duty to his principal, he is liable to his principal for any loss he may have sustained thereby.
    2. Insurance, § 67

      —when agent liable for misfeasance in procuring insurance. Where a person voluntarily, without consideration and without expectation of remuneration or reward, agrees to procure insurance, and actually takes steps in the matter, he is responsible for misfeasance, and if he proceeds to effect a policy and is so negligent and unskilled that no benefit is derived therefrom, he is liable although he was not bound to undertake the performance.
    3. Insurance, § 67*—what constitutes no defense in suit against agent for failure to procure insurance. Want of authority of foreign insurance company to transact business in this State constitutes no defense in a suit against an insurance broker for damages resulting from failure to procure fire insurance in such company, where the evidence shows that plaintiff had no knowledge that such company had no such authority.
    4. Pleading, § 431*—when averment in declaration need not be proved. In an action against an insurance broker for failure to procure insurance where the declaration averred generally that defendant received a reward for procuring insurance, held that proof of such averment was not essential to recovery because it was not specifically denied by defendant in his affidavit of merits and also because the averment was not relevant and might be treated as surplusage.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 24, 1914.
    J. H. Westover, for appellant.
    Carnahan, Elsdon & Slusser, for appellee; Frederick A. Brown, of counsel.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit brought in the Municipal Court by The Evan L. Beed Mfg. Co., a corporation, against Charles P. Wurts to recover damages occasioned by the alleged failure of the defendant to procure certain fire insurance policies covering property belonging to the plaintiff. A trial by jury resulted in a verdict and judgment against the defendant for $3,666.68, to reverse which judgment he prosecutes this appeal.

Plaintiff’s statement of claim avers that on or about November 1, 1909, the defendant, who was then and there an insurance broker doing business in the city of Chicago, solicited from plaintiff the placing of the plaintiff’s fire, insurance, and that subsequently, on December 1,1909, the defendant undertook and agreed and promised to procure for the plaintiff a $1,500 fire insurance policy to be written by the Minnesota Fire Insurance Company of Chatfield, Minnesota, a $2,500 fire insurance policy in the London Lloyds, to be effective January 1, 1910, and a $1,000 fire insurance policy in the London Lloyds, to be effective January 20, 1910, the procuring of which policies was in line with the defendant’s general business of procuring fire insurance, out of which he received a reward, said reward being a certain percentage of the premium paid by the insured; but the said defendant carelessly and negligently' failed to procure the policy in the Minnesota Fire Insurance Company aforesaid, and failed and neglected to procure valid and enforcible policies in the London Lloyds aforesaid; that he did procure a policy .in the London Lloyds, said policy being No. 20,528, for $2,500, to run for one year from January 3, 1910, purporting to cover property belonging to the plaintiff at Sterling, Illinois, which said policy was received by the plaintiff on or about January 13, 1910, and which policy contained a clause providing that the said policy should not be valid unless there was in addition to the said insurance a valid insurance policy in the Minnesota Fire Insurance Company for $1,500; that plaintiff relied upon defendant to procure valid insurance in the said company and the said London Lloyds and that plaintiff had no notice that the policy issued by the said London Lloyds contained the said clause, nor was the attention of plaintiff called to the said clause until after the happening of the loss hereinafter mentioned; that by reason of the defendant’s failure to procure the said policy in the Minnesota Fire Insurance Company, the said policy in the London Lloyds was void and of no effect; that on January 15, 1910, the factory of the plaintiff at Rock Falls, Illinois, the building and contents of which was to have been insured by the policies aforesaid, was damaged and destroyed by fire, and plaintiff was unable between the date of the receipt of the London Lloyds policy from the said defendant and the date of the said fire to procure insurance protection, wherefore, by reason of the failure of the defendant to properly carry out his agreement and undertaking, to procure insurance for the plaintiff, or to notify the plaintiff of his failures so to do, plaintiff was obliged to and did sustain a loss which would otherwise have been covered by the two policies of insurance.

On August 10, 1909, the defendant, who, as he testified, was engaged in the business of placing insurance for clients, addressed to the plaintiff a communication as follows:

“If you are at all dissatisfied with the fire insurance rate which has been assessed against your property by the Insurance Trust, you may perhaps be glad to know that there is an opportunity for securing the best insurance possible at materially lower rates
This insurance involves absolutely no contingent liability as in the case of Mutual companies and inter-insurance associations, but is indemnity which has been sold all over the world for over a hundred years. If you would like to have a proposition with reference to the amount of insurance which can be handled and the best rate obtainable, I shall be glad to hear from you with a copy of your form and a quotation of the rate you are now paying.”

Presumably in reply to this communication plaintiff, on November 15, 1909, sent to the defendant an existing policy covering property desired to be insured by plaintiff, and on November 16, 1909, the defendant wrote plaintiff as follows:

“I have your favor of the 15th enclosing Illinois National policy for $2,000 to show form and note that this insurance was written up at a rate of 2.625.
On investigation I find that your present tariff rate is 3.48, but I am prepared to quote you a rate of 2.625 for $1,000 in the Federal Lloyds and $5,000 in London Lloyds.
If this proposition appeals to you, I shall be glad to have your prompt instructions.”

On November 29, 1909, plaintiff wrote the defendant as follows:

“You may write us $1,000 fire insurance in Federal Lloyds and $4,000 fire insurance in London Lloyds at $26.25 per M, as per form of Illinois National Policy sent to you.
$2,000 to commence Jan. 1, 1910,
2,000 to commence Jan. 3, 1910,
500 to commence Jan. 20, 1910,
500 to commence Feb. 27, 1910.”

In reply thereto the defendant, on December 1,1909, wrote plaintiff as follows:

“I have your instructions to place $1,000 in the Federal Lloyds and $4,000 in London Lloyds at 2.625, but I have to report that since I wrote you I have ascertained that some of the underwriters of the Federal Lloyds have withdrawn so that I can no longer conscientiously recommend policies therein.
“I have, however, succeeded in getting the general agent of the Minnesota Fire Insurance Co. of Chat-field, Minn., which is a recently organized joint stock company, with a paid in capital of $100,000 and a paid in cash surplus of $50,000 to recommend to his company the issuance of its policy for $1,500 effective January 1st and you will probably receive from this company early in December a policy for $1,500. As soon as this policy reaches you, please advise me and in the meanwhile I am placing the balance of your requirements in London Lloyds.
I propose giving you $2,500 in London Lloyds effective January 1st and $1,000 effective January 20th.
I am obliged to divide the insurance in this way because it will not be possible to secure a London Lloyds policy for such a small amount as $500 so that I trust that this will be satisfactory to your good selves.
Awaiting your reply, I am,
Tours very truly,”

The evidence tends to show that thereafter plaintiff wrote the defendant that it woud accept a policy in the Minnesota Fire Insurance Company, provided it was a good company. Whether or not the- defendant thereafter informed plaintiff of the standing and responsibility of the Minnesota Fire Insurance Company does not clearly appear, but it may be fairly inferred from the evidence that the defendant did so inform plaintiff and that the latter on December 13, 1909, expressed its willingness to accept a policy in that company, and also then directed the defendant to change the date of maturity of some of the policies.

The defendant left the city of Chicago for Honolulu on December 9,1909, and did not return until January 15 or 16, 1910.

On January 12, 1910, there was addressed to the plaintiff from the office of the defendant a communication as follows:

“Herewith London Lloyds policy -fjb 2528 for $2,500.00 and running one year from the 3rd instant. I also enclose policy No. 20529 for $1,000 for one year from February 27, both of which I trust you will find correct and satisfactory. Both of these policies were issued before receipt of your letter asking for change of date, but this matter has been properly attended to by an endorsement on the policies.
The premiums on these policies are $26.25 on No. 2529 and $65.63 on # 20528 making a total of $91.88 for which kindly let me have your check as promptly as possible, as this business is as usual, c. o. d.”

This communication, together with the policies mentioned therein, were received by the plaintiff on January 13th or 14th, 1910, and on January 15, 1910, the property of the plaintiff was destroyed by fire. Plaintiff never received a policy of insurance from the Minnesota Fire Insurance Company and no such policy appears to have been issued to plaintiff by said company. The evidence tends to show that plaintiff had no actual notice or knowledge "that the policies of insurance issued to it by the London Lloyds contained a warranty clause, as follows: “Warranted same gross rate, terms and conditions and to follow the Minnesota Fire Insurance Company which has $1500 on the identical subject matter and risk and in the same proportion.” It is conceded that this warranty clause is to be construed as providing, in substance, that the London Lloyds policies should not be operative and valid unless in addition thereto the insured carried a valid policy of insurance in the Minnesota- Fire Insurance Company for $1,500.

It is said there is a material variance in two particulars between the alleged contract set out in plaintiff’s statement of claim and the contract as proved. First, that it is averred in the statement of claim that defendant on December 1, 1909, undertook, agreed and promised to procure for the plaintiff a policy of fire insurance for $1,500, to be written by the Minnesota Fire Insurance Company and a like policy of insurance in the London Lloyds, whereas the only proof offered in support of such averment is the letter of defendant to plaintiff dated December 1, 1909, wherein defendant merely stated that he had succeeded in getting the general agent of the Minnesota Fire Insurance Company to recommend to said company the issuance of its policy for $1,500 effective January 1, 1910, which policy plaintiff would probably receive from said company early in December. Second, that it is averred in the statement of claim that for procuring said policies defendant was to receive a reward, said reward being a certain percentage of the premiums paid by the insured, whereas there is no evidence tending to show that defendant had or was to have from the premiums paid by the plaintiff or from any other source, any reward •for procuring said policies.

The letter of December 1, 1909, is not the only evidence in the record, if additional evidence is necessary, tending to show an undertaking and promise by the defendant to procure the insurance in question. The prior correspondence between the parties shows an offer by defendant to procure such insurance as plaintiff might desire and an acceptance of such offer by plaintiff, and, further, that plaintiff sent to the defendant a form descriptive of the property to be insured, and advised the defendant of the several dates when such insurance should become effective.

Furthermore, in procuring policies from the London Lloyds, containing the warranty clause heretofore mentioned, the purpose and effect of which he well knew, defendant was bound to see to it that said policies were not rendered invalid by his failure or neglect to procure a policy of insurance in the Minnesota Fire Insurance Company in compliance with said warranty. In his letter of December 1, 1909, defendant assumes that the required policy in the Minnesota Fire Insurance Company will be issued and received by the plaintiff, and merely requests to be advised as soon as said policy shall be received. The further statement by defendant that he was placing the balance of plaintiff’s requirements in the London Lloyds clearly implies that he had then placed insurance in or procured a policy to be issued by the Minnesota Fire Insurance Company.

The- principles of law. generally applicable to actions of the character here involved are not seriously controverted by the defendant.

If an agent neglects to procure insurance or does not follow instructions when obligated so to do, or if the policy obtained is void or materially defective through the agent’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the agent which constitutes a breach of duty to his principal, he is liable to his principal for any loss he may have sustained thereby. 1 Joyce on Insurance sec. 678; Kerr on Insurance, sec. 120; 1 Cooley’s Briefs on the Law of Insurance, p. 338.

The statement of claim filed by the plaintiff does not aver that defendant was to receive a reward for procuring the policies of insurance in question, but avers generally that the procuring of said policies “was in line with the defendant’s general business of procuring fire insurance, out of which he received a reward, said reward being a certain percentage of the premium paid by the insured.” Proof of this averment was not essential to plaintiff’s right of recovery, because it was not specifically denied by defendant in his affidavit of merits, and also because the averment as made was not relevant and might, therefore, be properly treated as surplusage.

“If a person voluntarily, without consideration, and without expectation of remuneration or reward, agrees to procure an insurance, and actually takes steps in the matter, he is responsible for misfeasance, and if he proceeds to effect a policy, and is so negligent and unskilled that no benefit is derived therefrom, he is liable, although he was not bound to undertake the performance.” 1 Joyce on Insurance, sec. 680. To the same effect see Hughes on Insurance, p. 94.

It is next urged that as the Minnesota Fire Insurance Company was not admitted to transact business in this State, plaintiff could not lawfully secure or contract with the defendant to secure a policy of insurance in said Company; that such contract was in violation of the law prohibiting insurance agents from taking risks or transacting the business of fire insurance with companies not authorized to do business in this State. The evidence tends to show that plaintiff had no knowledge that said company was not authorized to transact business in this State, and in the absence of such knowledge plaintiff was justified in presuming that it was authorized to transact business in this State. If a policy of insurance had in fact been issued to plaintiff by said company, it could not have avoided its liability thereon by reason of the fact that it had failed to comply with the law relating to foreign insurance companies. Watertown Fire Ins. Co. v. Rust, 141 Ill. 85.

Defendant had actual knowledge that the Minnesota Fire Insurance Company was not authorized to do business in this State, and yet he procured the policies in the London Lloyds, conditioned upon a warranty therein that a policy for $1,500 in the Minnesota Fire Insurance Company should be issued to plaintiff. . Under such circumstances the defendant cannot be permitted to avoid liability upon the ground that the Minnesota Fire Insurance Company was not authorized to transact business in this State.

It is insisted that the trial court improperly, admitted in evidence two letters, designated in the record as “Exhibit 7” and “Exhibit 8” respectively, written by the defendant to the plaintiff on January 27th and January 29th, 1910. “Exhibit 8” was admitted without objection and “Exhibit 7” was not harmful to defendant.

Other objections urged to the action of the court in rejecting certain evidence offered by defendant are without merit.

The fourth instruction given to the jury is not free from criticism, but the infirmity in the instruction does not demand a reversal of the judgment. The third and fifth instructions are substantially accurate statements of the law predicated upon the evidence in the record.

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

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Chicago Title & Trust Company, Trustee, et al., Appellees, v. Maurice Franklin et al., Herbert W. Duncanson, Appellant.
    Glen. No. 18,848.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Subeoqatioit, § 3

      —when holder of bonds entitled to conventional subrogation. Where there is an arrangement between a company and a person executing bonds whereby the company took up the bonds to hold them uncaneelled until the person executing the bonds paid the same, the company holds the same under a right of conventional subrogation.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed as modified.
    Opinion filed June 24, 1912.
    Statement of the Case.
    Bill by Chicago Title and Trust Company, Trustee et al., against Maurice Franklin, Herbert W. Duncan-son et al., to foreclose a trust deed executed by Mandel Frankel under the name of Maurice Franklin to secure the payment of certain bonds. From a decree awarding a foreclosure, Herbert W. Duncanson appeals.
    Alden, Latham & Young, for appellant.
    Henry W. Leman, for appellee Chicago Title & Trust Company.
    Felsenthal & Beckwith, for appellee Charles H. McIntyre.
    A. W. Martin and Edward H. S. Martin, for appellee Goldsmith.

      See Illinois Notes Bigest, Yols. XI to XY, and Cumulative Quarterly, same topic and section numbei'o

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Appeal and error, § 499-^iohero objection to amount of solicitor’s fees not preserved for review. Objection to the amount of solicitor’s fees allowed by a decree of foreclosure under the terms of a trust deed cannot be first raised on appeal.

3. Principal and agent, § 179*—when third party not liable as undisclosed principal. Where bonds are executed under seal in the name of a certain person, a third person cannot be held liable thereon as an undisclosed principal.


author: Mr. Justice Duncan

text:
    Michael Laurie, Plaintiff in Error, v. Barber Asphalt Paving Company, Defendant in Error.
    Gen. No. 18,317.
    (Mot to be reported in full.)
    Error to the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by Michael Laurie against Barber Asphalt Paving Company, a corporation, to recover for personal injuries received by plaintiff while riding on a board extending from the rear of one of defendant’s wagons while being transported to a place in a street for the purpose of repairing the same. The injury resulted from the pole of a rear wagon striking plaintiff after the front wagon on which he was riding had stopped. To reverse a judgment entered on a directed verdict for defendant at the close of all the evidence, plaintiff prosecutes a writ of error.
    James D. Power, for plaintiff in error.
    Ralph F. Potter, for defendant in error.

      Abstract of the Decision.
    1. Master and servant, § 250

      —when laborer is fellow-servant with driver of wagon. A laborer employed with a gang of men to repair asphalt pavement, held to be a fellow-servant with the drivers of the wagons used, where they were all working under the direction of one foreman and such laborer was injured by a collision resulting from the negligence of the drivers of the wagons while being transported to repair streets.
    2. Master and servant, § 474*—when servant riding in dangerous position on wagon guilty of contributory negligence. Evidence held sufficient to warrant the jury in finding a member of an asphalt paving gang guilty of contributory negligence in riding on the outside of a wagon box, where he rode in such position of danger against the instructions of his foreman and without his knowledge and without any necessity or excuse for so riding.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    L. R. Van Allen, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 18,556.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by L. E. Van Allen against Western Union Telegraph Company in assumpsit to recover damages for loss of time and expenditures resulting from an error in the transmission of a telegram. The telegram delivered by plaintiff to defendant for transmission to plaintiff was as follows:
    “If any mail or telegram for me there now, please forward to St. Paul, care Frederic Hotel, to arrive be- ' fore four p. m. July 10th, after that hold.”

      Abstract of the Decision.
    1. Telegraphs and telephones, § 31

      —Mobility for failure to transmit messages correctly. While it is the duty of a telegraph company to transmit the messages correctly as delivered to it, its liability for its failure to do so is the actual damages occasioned by reason of the breach of the contract
    2. Telegraphs and telephones, § 36*—burden of proof. In an action against a telegraph company for damages resulting from error in the transmission of a telegram, the burden is on the plaintiff to show that he was damaged and what his damages consisted of.
    3. Telegraphs and telephones, § 37*—when recovery for error in telegram not sustained by the evidence. In an action against a telegraph company for loss of time and expenditures resulting to plaintiff from an error in the transmission of a telegram, evidence held insufficient to sustain a recovery for loss of time and insufficient to sustain the amount recovered for expenditures, there being no evidence of what plaintiff’s daily earnings were and no evidence that the error in the transmission was the cause of different items of expenses.
    In the course of transmission the word “Frederic” was changed to “Filday,” with the result that plaintiff never received his mail in St. Paul. To reverse a judgment in favor of plaintiff for $58.60, defendant prosecutes a writ of error.
    West & Eckhart, for plaintiff in error.
    Bell & Cross, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    Ruehl Brothers Brewing Company, Plaintiff in Error, v. Atlas Brewing Company, Defendant in Error.
    Gen. No. 18,613.
    1. Municipal Court of Chicago, § 13

      —when statement of claim may be stricken. The Municipal Court has properly abolished by its rules demurrers to pleadings in actions of the fourth class, but it has provided by its rules that when it appears from the statement of claim that the cause of action relied upon is unfounded, the court may order it stricken out and the action dismissed or such judgment entered as may be just.
    2. Municipal Court of Chicago, § 13*—sufficiency of statement of claim. Section 40 of the Municipal Court Act, J. & A. j[ 3352, requires a plaintiff by his statement of claim to reveal the nature of an alleged real case, and is not complied with by filing a statement showing he has no case at all.
    3. Malicious prosecution, § 1*—elements necessary to support action for. As a general rule to support an action for malicious prosecution plaintiff must. establish three things: (1) The fact of the alleged prosecution, and that it was legally terminated in the plaintiff’s favor by dismissal or otherwise; (2) that the defendant had no probable cause for instituting the proceedings; and (3) that defendant acted from malicious motives.
    4. Malicious prosecution, § 31*—sufficiency of termination of prosecution to support action. A statement of claim shows no right of action for malicious prosecution, where it discloses that the suit was terminated in the defendant’s favor by plaintiff’s voluntary agreement.
    5. Process, § 100*—what constitutes an abuse of process. The mere institution of civil suits, though groundless and malicious, does not constitute a malicious abuse of process; such action lies for the improper use of process after it has been issued but not for maliciously causing process to be issued.
    6. Process, § 100*—elements necessary to sustain action for malicious abuse of process. Two elements are necessary to sustain an action for malicious abuse of process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding.
    7. Fraud, § 58*—when action for fraud and deceit will not lie. Where á party voluntarily releases the levy of his execution in consideration that another will dismiss a suit for the trial of the right of property, the judgment of dismissal constitutes a res adjudicata, and the party releasing the levy cannot maintain an action against the other for fraud and deceit for the reason that the latter fraudulently represented that he had an interest in the property.
    8. Action, § 6

      —right of action for false testimony or statements in judicial proceedings. No action can be- maintained on account of the false testimony of witnesses, or of a false statement filed in a judicial proceeding.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed June 24, 1914.
    Bryan, Duval, McCormick & Wilber, for plaintiff in error.
    David & Zillman, for defendant in error.

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

      See Illinois No'tes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

This is an action of the fourth class in which, on motion of defendant in error’s counsel, the court struck the amended statement of claim and affidavit from the record, and dismissed the suit with judgment for costs against plaintiff in error, Buehl Brothers Brewing Company.

The amended statement of claim is, in substance, that on April 10, 1911, plaintiff in error recovered a judgment in said court against one Edward Upton for $481 and costs, and caused an execution thereon to be delivered to the proper officer and levied on certain chattels of said Upton of the value of $800 to satisfy its judgment; that defendant in error, contriving to injure and oppress plaintiff in error, falsely and maliciously and without any reasonable or probable cause commenced an action of “trial of the right of property” against plaintiff in error and said officer, by filing a statement of claim, verified by the oath of Otto J. Kralovec as its agent, whereby it asserted and claimed to be the owner of said chattels so levied on by virtue of a certain chattel mortgage duly recorded in Cook county, September 9, 1910, in which said Upton was mortgagor and J. A. Cervenka, mortgagee, and which mortgage was assigned by said mortgagee to defendant in error; that summons in said suit was duly served on plaintiff in error, although defendant in error then well knew it had no cause of action against plaintiff in error; that plaintiff in error believed and relied on the matters stated in said verified statement of claim, and, therefore, agreed to release its said levy if defendant in error would have its suit dismissed without costs, that defendant in error so agreed and by such an agreement said suit was so settled and dismissed, April 28, 1911; that in August, 1911, plaintiff in error learned that defendant in error was not the owner of said chattels by virtue of said mortgage, and that said mortgage was fully satisfied and paid at and before the bringing of said suit as defendant in error then well knew; that said suit was instituted to injure, plaintiff in error and to cause it to release it said levy, and which it would not have done had it known defendant in error was not such owner.

Plaintiff in error further claims that it has an action for fraud and deceit by reason of the foregoing facts, after further alleging as a part of said false representations and conduct, that on the day said levy was made one Mr. Shalek, secretary of defendant in error, falsely and fraudulently stated to one Mr. Beuter, salesman of plaintiff in error, that defendant in error was the holder of said mortgage, and that if plaintiff in error did not want to get into trouble it should surrender said chattels, and to further induce plaintiff in error to release its said levy began said suit, well knowing said representations to be false; that plaintiff in error was not then able to learn the real facts concerning the ownership or interest of defendant in error in said chattels and released its levy and its lien on said chattels; and that by reason of the insolvency of said Upton and of said release, plaintiff in error was unable to collect its said judgment, but could have done so, except for said release caused by said fraudulent acts and conduct of defendant in error.

Plaintiff in error insists that its statement of claim is sufficiently clear to apprize the defendant in error that it is charging it with a malicious abuse of process, a malicious prosecution and with fraud and deceit; and that its statement is sufficient under the Municipal Court,Act to require defendant in error to reply to the same in the manner provided in said act in actions of the fourth class.

The court did not base its judgment upon the ground that the statement of claim did not reasonably inform the defendant in error of the state of facts upon which plaintiff in error rólied to maintain its suit, but upon the distinct ground that the ultimate facts therein disclosed clearly show that the alleged cause of action has no foundation in the law. The judgment of the court must stand if the ultimate facts do clearly and indisputably show that plaintiff in error cannot maintain any one of the three causes of action suggested, otherwise the judgment must be reversed.

While it is sufficient for' the plaintiff in fourth-class actions in tort to make a brief statement of the nature of the tort and to state such information as will reasonably inform the defendant of the nature of the case he is called upon to defend, still, the said act does not warrant the conclusion that a plaintiff may proceed to a trial upon a statement of claim that really shows his action is unfounded. The act requires a plaintiff by his statement to reveal the nature of an alleged real case and is not complied with when he files a statement showing that he has no case at all. Municipal Court Act, sec. 40. (J. & A. 3352.)

The Municipal Court has properly abolished by its rules demurrers to pleadings in actions of the fourth class, but it at the same time has provided by its rules that when it appears from the statement of claim that a plaintiff is relying on a cause of action that is clearly unfounded in law, the court may order the same stricken out and the action dismissed, or such judgment to be entered as may be just, and the rules are in full accord with the provisions of said act.

It is the general rule that to support an action for malicious prosecution the plaintiff must establish three things: (1) The fact of the alleged prosecution, and that it has legally terminated in the plaintiff’s favor by dismissal or otherwise; (2) that the defendant had no probable cause for instituting the proceedings ; and (3) that the defendant acted from malicious motives. Plaintiff in error’s statement of claim positively discloses that by agreement of the parties its lien on the personal property in question by virtue of the levy of the execution thereon was released by it in consideration that defendant in error would dismiss its suit for trial of the right of property, and that the suit so compromised was accordingly dismissed. In this termination of the suit plaintiff in error recognized and virtually admitted a reasonable cause for the prosecution of the suit, and it cannot be now heard to insist that there was ho reasonable or probable cause therefor. It was not a. termination of the suit in favor of plaintiff in error, but by its voluntary agreement the litigation was terminated in defendant in error’s favor, and that voluntary settlement was fatal to plaintiff in error’s suit for malicious prosecution under the authorities. See Emery v. Ginnan, 24 Ill. App. 65, and the authorities there cited.

The statement of claim does not in express terms charge or otherwise make it to appear that this suit is based on a malicious abuse of process, but on the contrary the facts relied on show that there was no such abuse of process by defendant in error. Two elements are necessary to sustain this latter action: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with bad intentions, is not a malicious abuse of process. The mere institution of civil suits, though groundless and malicious, does not constitute a malicious abuse of process. That action lies for the improper use of process after it has been issued, but not for maliciously causing process to be issued. The most common form of such abuse is by working upon the fears of a person after having him arrested, for the purpose of extorting money, or other property, or of compelling him to sign some paper, to give up some claim, to pay a debt or to do some other like act desired by those who have control of the prosecution. Bonney v. King, 201 Ill. 47; Jeffery v. Robbins, 73 Ill. App. 353; Emery v. Ginnan, supra.

The object of the suit for the trial of the right of property was to have the court declare the title or right to the property in question in defendant in error, or to cause plaintiff in error to recognize that claim of title and to abandon its own claim. That very object was accomplished, and no other or different object was undertaken by defendant in error or by the officers of the law for it, either after the suit was instituted or before. The affidavit of defendant in error filed in the suit was appropriate to that action and in furtherance thereof, and, therefore, did not, whether true or false, furnish any basis for this claim for malicious abuse of process.

The claim for fraud and deceit cannot be sustained. It appears from the statement of claim that the suit for the trial of the right of property was settled and dismissed by the agreement of the parties to the suit, plaintiff in error agreeing to release the levy of its execution in consideration that defendant in error would dismiss the suit. A voluntary dismissal of a suit is not ordinarily final and conclusive of all matters which could have been tried in the cause upon the merits. But where the suit is settled by the parties, as in the suit here in question, and the suit is dismissed by agreement of the parties, the judgment of dismissal constitutes res adjudicata and is a defense to another action afterwards brought upon the same cause of action. A judgment of dismissal by agreement that does not disclose on its face that the matters in suit have been settled by the parties has the same conclusive effect by the weight of the authorities, unless otherwise provided in the judgment, and particularly in a collateral attack. 1 Freeman on Judgments (4th Ed.) sec. 262, and authorities there cited; Clark v. Southern Can Co., 116 Md. 85, 36 L. R. A. (N. S.) 980 and cases cited and noted.

By voluntarily releasing its levy and consenting to the dismissal of the action of the trial of the right of ¡iroperty plaintiff in error is estopped from claiming any damages by reason of the .alleged fraudulent conduct of defendant in error in that suit. By the weight of the authorities it is well established that no action can be maintained on account of the false testimony of witnesses, or of a false statement filed in a judicial proceeding. It is recognized by the authorities that there may be individual cases in which great injustice may be done by this rule of law. The weight of such an argument, however, is overcome in the opinion of the courts asserting the rule, by the mischief of retrying every case in which the judgment or decree rendered or secured on false testimony, or false affidavits, or on contracts or documents whose genuineness or validity was in issue and which may afterwards be ascertained to be forged or fraudulent. Young v. Leach, 27 App. Div. (N. Y.) 293; Pico v. Cohn, 91 Cal. 129; Dunlap v. Glidden, 31 Me. 435; Stevens v. Rowe, 59 N. H. 578; Grove v. Brandenburg, 7 Blackf. (Ind.) 234; Abbott v. Bahr, 3 Pinney (Wis.) 193; Schaub v. O’Ferrall, 116 Md. 131.

For the foregoing reasons we conclude that no one of the three causes of action suggested by plaintiff in error can be maintained by it under its statement of claim, and the judgment is, therefore, affirmed.

Affirmed.


text:
    Henry Ades Fowler, Administrator, Plaintiff in Error, v. D. F. Crilly, Defendant in Error.
    Gen. No. 18,689.
    1. Landloed and tenant, § 226

      —duty of owner of tenement building to maintain building in safe condition. A landlord who rents different parts of his building to various tenants, reserving the elevators, halls, stairways and other approaches, or other parts of the building for the common use of his tenants, is under an implied duty to use reasonable care to keep them in reasonably safe condition, and is liable for injuries to persons lawfully in the building, resulting from failure to perform that duty. .
    2. Landloed and tenant, § 230*-—when liability of landlord for defective porch landing question for jury. In an action against the owner of a tenement building for the death of a child of a tenant resulting from a rotten board on a porch landing giving away so that the child fell to the ground below, held that the evidence tended to show defendant was liable and that the court erred in refusing to allow the case to be submitted to the jury.
    3. Negligence, § 96*—when contributory negligence not chargeable to a child. A child of three and one-half years old is not chargeable with contributory negligence.
    Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed June 24, 1914.
    I. W. Foltz, for plaintiff in error.
    Cassoday, Butler, Lamb & Foster, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

This writ of error is prosecuted by the administrator of the estate of Margaret T. Beard, deceased, to reverse a judgment in favor of the defendant in error, D. F. Crilly, in a suit in case by the former against the latter for damages for wrongfully causing the death of his intestate. The judgment was entered upon a directed verdict at the close of the evidence for plaintiff in error, and the sole question here is as to whether or not the court erred in refusing to allow the cause to be submitted to the jury.

The facts proved on the trial are, in substance, that defendant in error owned a tenement building located on the northeast corner of North Park avenue and Eugenie street, Chicago with two entrances, 629 and 631 North Park avenue. The building fronts west on the avenue forty-four feet, and extends east along Eugenie street sixty feet, is four stories high, and contains on each story two flats running the full length of the building. In the rear of each story is a porch the full width of the building. Just east of the center of the porches is a wooden framework consisting of four large upright posts about forty feet high, supporting three platforms or landings just opposite the midway lines in the first, second and third stories of the buildings, or just opposite the half distance between the first and second, the second and third, and the third and fourth porch floors, said landings being about seven feet wide and extending in length about twelve feet east to or near an alley. The four porches and the three landings or platforms- were connected by the only stairway in the rear of the building, and beginning at the top, the stairway runs east and downward from the porch on the fourth floor to the northwest corner of the third platform just below, and thence from the southwest corner of the third platform west and downward to the porch on the third story, and the stairway in like manner connects the third porch and the second landing with the second porch, and the second porch and the first landing with the porch on the first floor, there being four steps between each landing and the porch above it and four steps between each landing and the porch below it. Bailings or banisters were constructed around all said porches, the stairs and landings, the .railing around the landings being about three feet high and consisting of three boards nailed to the large upright posts in the four corners and to an upright stay midway between said posts. In the northeast corner of said landings there is constructed a garbage chute consisting of an iron pipe extending from the top landing to a large garbage box on the ground under the east end of the landings. There are two partitions about six feet high on each of said porches, located a few inches north and south of the places where said stairway joins said porches, and extending from the rear banisters of the porches to the rear wall of the building, and in each partition there was a door with a lock, and when closed gave the tenants in every north and south flat a private porch connected with a common space leading to the stairway. The various tenants in said building deposited their garbage into, the garbage chute which conveyed the garbage to the box below, and used the landings in common for cleaning rugs, beating carpets, and for stringing clotheslines and hanging out clothes, and used "the stairway in common for said purposes and for ingress and egress to and from the building to the yard and street below. The evidence also discloses that defendant in error repaired the stairway and landings, and does not disclose any other use that was made of them other than as above recited. The tenants in the fourth flats, including the parents of the deceased, used the top landing in common with the tenants in the third flats for the uses aforesaid, and the tenants in the first and second flats used the first platform in the same manner, the tenants in the second and third flats using the landing just above or below them as they chose. The parents of the deceased had been tenants there of defendant in error since 1904 up to September 12, 1907, the day of the child’s death, and occupied the south flat on the fourth floor with one Mrs. Hardy, who on said latter date went out and down to said third landing to hang out some clothes on the clothesline there. She had just arrived at the east end of the landing when the deceased, about three and one-half years old and who had followed Mrs. Hardy, leaned on the middle board that formed the east railing to look down to the alley below at some fruit venders there, and while standing on the floor of the landing and so looking said board gave way, and the child fell through the railing and down to the alley about thirty-five feet, and received injuries from which she soon thereafter died. The child’s presence was not known to Mrs. Hardy until she heard the noise of the board as it was torn from the posts, and the child was in the act of falling. The door to the south partition on the porch had been habitually kept closed by the parents so the child could not, when alone, pass through there, by means of the lock, and also by means of a hook and staple which they themselves had placed high on the door as an extra precaution against the child’s going through there. The child’s presence on the landing was not known to her parents. Her mother was in the kitchen ironing and did not know Mrs. Hardy had gone down to the landing, and did not see the child follow; but she very shortly afterwards missed it and called it, and not getting an answer, ran to the door to see where it was just in time to hear the crash and a scream as the child fell. The father was in the sitting room and knew nothing of the occurrences. The board that was so torn loose was so much decayed at the ends and around the nails that the nails were pulled right through it by the leaning of the little child against it, and were left sticking in the post. The attention of the defendant in error’s agent who had charge of the building had often been called to the decayed and shaky condition generally of the landing prior to said death, and in response to a notice by the mother of the deceased of the decayed and shaky condition of the landing, the agent had had some repairs made on said landing near the stairway thereon shortly before said death. The evidence further showed that children of other tenants in that building had been accustomed to play on said landings and particularly the landing in question.

An appropriate declaration was filed in the case, charging the proper ultimate facts, and that the child lost its life by reason of defendant in error’s negligence in failing to use reasonable care to keep the said landing and stairway in reasonably- safe condition, to which the general issue was filed.

A landlord who rents different parts of his building to various tenants, reserving the elevators, halls, stairways and other approaches or other parts of the building for the common use of his tenants, is under an implied duty to use reasonable care to keep them in reasonably safe condition, and is liable for injuries to persons lawfully in the building, resulting from a failure to perform that duty. The B. Shoninger Co. v. Mann, 219 Ill. 242; Burke v. Hulett, 216 Ill. 545; Payne v. Irvin, 144 Ill. 482; Schwandt v. Metzger Linseed Oil Co., 93 Ill. App. 365; Stromberg v. Western Tel. Const. Co., 86 Ill. App. 270.

The evidence showed clearly in this case that defendant in error retained the use of the stairway and the landing in question for the common use of the tenants in the third and fourth flats, including the parents of the deceased, and that they were specially built and repaired by him for the common uses of his said tenants, as above recited. There can be no question about his duty to the tenants and all persons lawfully on said landing to keep it, including its banisters, in reasonably safe condition. The evidence also tends to show that the third landing was dangerous by reason of the rotten and decayed board aforesaid, and that defendant in error had been notified of the general shaky and dangerous condition of the landing, and that his carpenter was sent there shortly before the "death of the child to repair it, and that he did make some repairs near the stairway on that, landing. In view of that fact and the further fact that the board was so very rotten that the leaning of the little child of about thirty-five pounds weight pulled the nails through the ends of the boards, we think the evidence tended to charge defendant in error with notice of the defect, and that reasonable inspection would have given actual notice to his carpenter who repaired the landing, as was similarly held in Clarke v. Welsh, 93 App. Div. (N. Y.) 393.

Under the evidence it was a question for the jury to decide as to whether or not the parents or either of them were guilty of contributory negligence, and the child was not in charge of Mrs. Hardy. A child of three and one-half years old is not chargeable with contributory negligence. Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Same v. Wilcox, 138 Ill. 370; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424.

The cause should have been submitted to the jury. It is error for the trial court to direct a verdict for the defendant where there is evidence tending to prove all the material averments of a declaration stating a good cause of action. Union Bridge Co. v. Teehan, 190 Ill. 374; Libby, McNeill & Libby v. Cook, 222 Ill. 206.

As the landing and stairway were built expressly for the building in question and for the common use of the tenants or occupants aforesaid, the child was rightly on the premises, and was not a trespasser, intruder or bare licensee. The cases cited by defendant in error are not applicable to this case, towit: McDermott v. Burke, 256 Ill. 401; Gibson v. Leonard, 143 Ill. 182; Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579; and Saffer v. Molter, 124 Ill. App. 21.

As was said in Widing v. Penn. Mut. Life Ins. Co., 95 Minn. 279, defendant in error was bound to contemplate all ordinary and reasonable purposes for which the landings might be used. It was also but reasonable to suppose that children would go upon these landings to play and to look about over the city; and they did go there to play and there were no regulations or restrictions against them doing so, and they were as much entitled to protection against such dangers as the deceased encountered as they would be if on the common stairway, or on their common porch, and being rightfully there, it can make no difference in this case that the child was leaning against the board in question and looking down at the fruit venders to gratify its childish curiosity.

The judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Marie A. Tollar, Administratrix, Plaintiff in Error, v. Bohemian Building and Loan Association, Defendant in Error.
    Gen. No. 18,781.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Bill by Marie A. Tollar, administratrix de bonis non, with the will annexed, of the estate of August Brejcha, deceased, against Bohemian Building and Loan Association for an accounting of moneys alleged to be due the deceased from the defendant Association, of which the deceased had been a member, and its treasurer. The bill also prayed for a discovery. Defendant answered denying that it owed the deceased Brejcha anything and averring that there had been an accounting by agreement and the account paid. A general replication was filed to the answer without amending or asking leave to amend the bill. From a decree dismissing the bill for want of equity and adjudging that complainant pay the cost in due course of administration, complainant appeals.
    Abstract of the Decision.
    1. Account, § 12

      —when settlement of account Bars relief on Mil for accounting. An account stated and paid is a bar to any relief whatever on a bill for a general accounting in which no particular errors are assigned in the account stated.
    2. Account stated, § IS*—sufficiency of MU to impeach. While an account stated and settled may be impeached for fraud or mistake in a court of equity, it can only be done upon a bill distinctly and clearly setting forth the specific errors with distinct averments as to the time when the fraud, mistake, concealment or misrepresentation that caused such omissions was discovered and what the discovery is, so that the court may clearly see whether by the exercise of ordináry diligence the discovery might not have been earlier made.
    3. Appeal and error, § 245*—when denial of leave to file amended Mil not reviewaMe. Action of court in denying complainant leave to file an amended bill after all the evidence was heard by the court, held not reviewable where the record does not show any motion or any attempt whatever to amend the bill outside of the certificate of evidence signed' by the judge.

      James E. White and F. H. Novak for plaintiff in error.
    Kraus, Alschuler & Holden, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

4. Appeal and error, § 1467*—when permitting incompetent testimony not reversible error. Error in permitting an incompetent witness to testify against an administratrix, held, not reversible error where other undisputed testimony supports the decree and the testimony of the witness was merely cumulative.


text:
    John Killean, Appellee, v. Henry Beaupre and William Beaupre, Appellants.
    Gen. No. 18,863.
    1. Release, § 25

      —when parol evidence inadmissible to prove want of consideration for release under seal. In an action for personal injuries where the defense set up a release executed by the plaintiff under seal discharging the defendants of any liability for such injuries in consideration of the sum of one dollar, the admission of evidence offered by plaintiff to prove that no consideration was paid, held error.
    2. Release, § 25*—when evidence admissible to show maker was tricked into signing release under seal. Where a party is mentally incompetent to know what he is doing, or is deceived or tricked into signing a sealed release discharging another from liability for personal injuries, such facts may be shown in an action for damages, and the release is not a bar thereto.
    3. Evidence, § 341*—admissibility of parol evidence of want of consideration for sealed instrument. Parol evidence is admissible to contradict the payment of the consideration for a sealed instrument, but not to nullify the instrument And the same rule applies where the sealed instrument is offered as a defense to an action.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed June 24, 1914.
    Henry J. Frerks, for appellants.
    John C. King and James D. Power, for appellee.

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

   Mr. Justice Duncan

delivered the opinion of the court.

Henry Beaupre and William Beaupre appealed from a judgment of $1,000 entered against them in favor of John Killean in his suit for personal injuries alleged to have been received August 12, 1910, by reason of their negligence in sending him to work on a gable roof with an insufficient roofing ladder.

Appellants pleaded the general issue to appellee’s declaration and relied, as one of their defenses to said suit, on a release under seal signed by appellee and delivered to them, releasing and discharging them from all manner of actions and from all claims of damages by him by reason of said injuries received or by reason of any claim whatsoever that he might have against them in consideration of the sum of one dollar, the receipt of which is acknowledged in the release.

The undisputed facts in that regard are that appellee of his own free will signed the release knowingly and understandingly with the intent to release and discharge his said claims for damages, and that after-wards he instituted this suit to recover his said damages.

Appellee’s evidence tended to prove that the consideration of one dollar named in the release was .not paid to him by appellants, and that there was no other consideration paid or given him by them therefor, and want of consideration is his sole reliance for abrogating the effect of the release.

The law in this State is that parol evidence is admissible to contradict the. acknowledgment in a deed of the payment of the consideration, provided it is not sought to set aside or impair the legal effect of the deed as a conveyance. In other words, in a suit for the consideration named such evidence is admissible, but if the suit is for the purpose of setting aside the deed for want of a consideration, it is inadmissible. Illinois Cent. Ins. Co. v. Wolf, 37 Ill. 355.

So, in the absence of a statutory provision permitting such a defense, want of consideration cannot be shown in an action at law for the purpose of barring a suit on a sealed instrument. Windett v. Hurlbut, 115 Ill. 403; Chicago S., D. & B. Mfg. Co. v. Haven, 195 Ill. 474.

The same rule applies when a sealed instrument is offered as a defense, and a release under seal is a deed or sealed instrument, and it cannot be impeached or set aside in a court of law for want of consideration, or for any similar defense having the effect to entirely nullify the release as a release and discharge of an obligation, when it has been understandingly" executed. Jackson v. Security Mut. Life Ins. Co., 233 Ill. 161; G. H. Hammond Co. v. Papke, 91 Ill. App. 563, affirmed in 192 Ill. 631; Gourley v. West Chicago St. R. Co., 96 Ill. App. 68; Hartley v. Chicago & A. R. Co., 214 Ill. 78.

If a party is mentally incompetent to know what he is doing, or is deceived or tricked into signing a sealed release when he thought he was signing something else, such facts may be shown in his action at law for damages, and the release under seal is not a bar thereto. Turner v. Consumer’s Coal Co., 254 Ill. 187.

Appellee does not properly distinguish the cases he cites. If the release is not under seal, want of "consideration in law is a complete answer to the release. See Jackson v. Security Mut. Life Ins. Co., supra, in which Farmers & M. Life Ass’n v. Caine, 224 Ill. 599. is explained.

In the case of Davis v. Weatherly, 119 Ill. App. 238, it does not appear that the release was under seal. Bonney v. Bonney, 237 Ill. 452, and Mills v. Larrance, 186 Ill. 635, are suits in equity, and fraud in the consideration and want of consideration are grounds in equity for setting aside a release whether sealed or unsealed.

As the judgment will have to be reversed for the reason aforesaid, it will not be necessary to determine whether or not the verdict of the jury is against the manifest weight of the evidence on the question of a valuable consideration for the release or upon the other issues in the case.

The judgment is, therefore, reversed.

Reversed with a finding of facts.

Finding of facts to be incorporated in the judgment: We find that after the causes of action set forth in the declaration had accrued to appellee, and before this suit was begun, appellee, by a valid writing signed and sealed, released and forever discharged appellants from all claim or demands whatsoever arising from the injuries in said declaration mentioned.


author: Mr. Justice Graves

text:
    Richard H. Swartwout et al., for use of G. P. Sayers, Plaintiffs in Error, v. The Walworth & Neville Manufacturing Company, Defendant in Error.
    Gen. No. 18,747.
    (Not. to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    .Action by Richard H. Swartwout and Paul Appenzellar for the use of Gf. P. Sayers against Walworth & Neville Manufacturing Company, a corporation, to recover two thousand dollars represented by a note claimed to have been given to one Frederick A. Yard, who.was manager of an office for plaintiffs in Chicago, by the defendant, and returned to the defendant by said Yard. To reverse a judgment entered on a directed verdict for defendant, plaintiffs bring error.
    Albert A. Kraft, for plaintiffs in error.
    Gann, Peaks & Townley, for defendant in error.

      Abstract of the Decision.
    1. Principal and agent, § 179

      —essentials to entitle undisclosed principal to sue on contract made by agent. To warrant an action by an undisclosed principal based on a contract made by the agent, it must appear (1) that the contract was made on behalf of the principal; (2) that there is mutuality in the contract between the principal and the one who deals with the agent, so that the contract can be enforced against the principal when he is discovered; and (3) that the principal has the right to perform the contract
    2. Principal and agent, § 179*—when principal cannot maintain action on contracts made by agent. Where an agent of another spends his time serving others or in making contracts of his own disconnected with the line of his employment, the principal may have an action against the agent, but there is no privity between the principal and those with whom the agent deals in independent matters that will warrant an action in the name of the principal based thereon.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Thomas Nosal, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 18,827.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with findings, of fact.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by Thomas Nosal against the International Harvester Company to recover for personal injuries received by plaintiff by reason of the breaking of a defective ladder which he was using while in the employment of defendant. The declaration charged that defendant furnished to plaintiff to use in his work a defective ladder; that defendant negligently failed to make a reasonable inspection of the ladder and that defendant failed to nse ordinary care to discover defects therein and failed to warn plaintiff of such defects of which it had, but of which plaintiff did not have, notice. From a judgment in favor of plaintiff for one thousand two hundred and fifty dollars, defendant appeals.
    Abstract of the Decision.
    1. Master and sbbvant, § 380

      —when servant assumes rislc of defeats in ladder. Where a ladder, which is a simple and ordinary tool, the nature of which is easily understood, is used by a servant who is familiar with it, the servant in using the same is conclusively presumed to assume the risk of all defects therein, whether patent or latent and whether the master knows of such defects or could have known of them by the exercise of reasonable care or not.
    2. Appeal and ebbob, § 1699*—when party not hound hy theory of case adopted hy his instructions. A defendant, by procuring an instruction to be given according to a certain theory of the defense, does not commit himself to the proposition of law contained therein as the law of the case where another theory had been persisted in, and insisted on, until the court by denying a peremptory instruction compelled defendant to either adopt the theory of the court or abandon all further defense of the case.
    3. Appeal and ebbob, § 1699*—when right to review ruling of court on motion for peremptory instruction not waived. After an adverse ruling on a motion for a peremptory instruction, to which exception is duly preserved, a defendant may proceed with his defense on the theory of the law adopted by the court without waiving his right to have the rulings of the court thereon reviewed on appeal.
    David A. Orebaugh, for apellant; Edgar A. Bancroft, of counsel.
    Royal W. Irvin and Frank W. Koraleski, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    J. J. Cahill, Appellee, v. George B. Dryden, Appellant.
    Gen. No. 18,892.
    (Hot to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1325

      —when presumed that trial court correctly construed and applied the law. Where on the trial of a case without a jury no propositions of law or findings of fact were presented to the court to be passed on, it will he presumed that the court correctly construed and applied the law.
    2. Building and construction contracts, § 103*—when finding that heat regulator worked properly sustained by the evidence. In an action to recover a balance claimed to he due for the installation of a heating plant in defendant’s building by plaintiff, where the defense was that a regulator connected with the plant failed to properly regulate the heat, held that a finding for plaintiff was sustained by the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by J. J. Cahill against George B. Dryden to recover a balance claimed to be due the plaintiff for installing a heating plant in defendant’s building. The suit was originally brought before a justice of the peace where plaintiff had judgment for $80.01, and on appeal to the Circuit Court plaintiff recovered a like judgment and the costs in both courts. To reverse the judgment, defendant appeals.
    Octigan, Zahn & Anderson, for appellant.
    Otto G. Ryden, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Raffaele Cotunio, Appellant.
    Gen. No. 18,935.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Partnership, § 275

      —effect of death of partner. Upon the death of one of two partners the partnership is dissolved, and it thereupon becomes the duty of the surviving partner to proceed at once to settle up the partnership and to account for the interest of the deceased partner.

      Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Francisco Valenza, deceased, against Raffaele Cotnnio to recover five hundred dollars agreed to be paid for the interest of the deceased in a partnership. Francisco Valenza prior to his death was in partnership with one Guiseppe Montemuro in the saloon business and after his death defendant entered into an arrangement with one of the heirs of the deceased and the surviving partner to purchase the interest of the deceased in the partnership. Defendant thereafter conducted the business jointly with Montemuro and later purchased his interest and conducted the business as sole owner thereof. The purchase price for the interest of the deceased partner’s interest was never paid and this suit is brought by the public administrator to recover the same. From a judgment for plaintiff, defendant appeals.
    John A. McAnrow, for appellant.
    George Sass, 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 Graves

delivered the opinion of the court.

2. Partnership, § 299*—method of making accounting. Where a partnership becomes dissolved upon the death of a partner, an accounting may be made either in the Probate Court or directly with the legal representative of the deceased partner.

3. Partnership, § 286*—effect of arrangement for purchase of deceased partner’s interest. Where upon the death of one of two partners a person by an arrangement with one of the heirs of the deceased partner and the surviving partner agrees to purchase the interest of such deceased partner at a stipulated price, the legal effect of the arrangement is that the agreed consideration should be paid to the estate.

4. Partnership, § 286*—when representative of estate of deceased partner may elect to ratify purchase of such partner's interest. Where upon the death of one of two partners a person by agreement with one of the heirs of the deceased partner and the surviving partner purchases the interest of such partner at a stipulated price with the consent of the surviving partner, the arrangement is not such an- accounting as will relieve the surviving partner from liability to the estate of the deceased partner, but the representative of the deceased partner may elect to ratify the arrangement and hold the purchaser to his bargain.


text:
    Fred R. Roberts, Administrator, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 18,948.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Action by Fred R Roberts, administrator of the estate of Emil E. Waegner, deceased, against Chicago, Milwaukee & St. Paul Railway Company to recover for the death of plaintiff’s intestate alleged to have been caused by the negligent operation of defendant’s trains. Deceased had purchased a ticket and was at the railway station waiting to take an eastbound train. The railway tracks ran east and west and the station was on the north side of the tracks. The track next to the station was a westbound track and the track across from the depot was the eastbound track. The deceased and other passengers believing that their train was approaching started to cross the tracks and the deceased was struck by an approaching freight train. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    Carriers, § 421

      —when person at depot negligent in crossing tracks in front of approaching train. In an action against a railroad company to recover for the death of a person by being struck by a-train .while he was attempting to cross the tracks at the station to take a train held that a judgment for plaintiff could not be sustained for the reason that the death of deceased was due to his own negligence, it appearing that the approaching engine was in plain sight and that he did not heed the warning of other passengers that he must hurry to cross the tracks.
    O. W. Dynes and William Sherman Hay, for appellant.
    Hogan & Hogan and John H. Lally, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Nielle J. Fuller, Appellant, v. Peter Hansen et al., Appellees.
    Gen. No. 18,980.
    1. Landeobd and tenant, § 24

      —when findings as to terms of contract to malee a lease sustained by the evidence. On bill for the specific performance of an alleged contract to execute a lease of a certain flat in defendant’s flat building for a term of years where the evidence was conflicting as to the terms of the contracts, held that a finding in favor of defendant was warranted by the evidence.
    2. Appeal and ebbob, § 1395*—when findings of chancellor conclusive. Where a case is heard by the chancellor on oral testimony taken in open court, his findings and decree will not be set aside because not supported by the evidence, unless there is palpable error in such findings.
    3. Specific pebfobmance, § 80*—when granting relief on cross-bill improper. Where the original bill is filed to enforce the specific performance of an alleged contract to make a lease, and the proof does not sustain the allegations of the bill, it is error for the court to grant relief on defendant’s cross-bill praying that complainant be ousted from present possession of the premises and that possession be restored to the complainant, because the question of the right of the parties to the present possession of the premises was not involved in the original bill, and also because the question of the right of defendant to be restored to the immediate possession of the premises was a purely legal right, enforceable in an action of ejectment or forcible entry and detainer.
    4. Equity, § 194*—questions which may be presented by cross-bill. A question not germane to the original bill cannot properly be presented by a cross-bill.
    5. Equity, § 23*—when rule that court will retain jurisdiction to enforce legal rights inapplicable. The rule that when the equitable jurisdiction of a court is once brought into action in a proper case the court will retain jurisdiction of the parties and the subject-matter, even in some instances to the extent of enforcing purely legal rights, applies only when the court retains the original case in order to grant some substantial equitable relief.
    6. Equity, § 283*—necessity that equitable rights be averred and proved. The rule that equitable rights must be both averred and proved before purely legal rights will be determined by a court of equity applies whether the relief is sought by bill or cross-bill.

      7. Equity, § 157

      —when answer to cross-hill need not set up adequacy of legal remedy. The fact that an answer to a cross-bill does not set up as a defense that the complainant in the cross-bill has an adequate remedy at law does not confer jurisdiction to grant relief which is foreign to the power of a court of equity.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed June 24, 1914.
    Kretzinger & Kretzinger, D. W. Parker and L. L. Smith, for appellant.
    Knapp & Campbell and Ralph E. Church, for appellees.

      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 Graves

delivered the opinion of the court.

. Appellant brought this suit to compel specific performance of a claimed contract to lease to her for a term of years a certain flat in a flat building owned by appellee, Knapp, which appellant was and had been for some years occupying as a tenant and for which she was then and had been paying thirteen dollars per month rental, and which the said Knapp was to keep in repair. The amended bill on which the case was disposed of charges, in substance, that on October 5,1905, appellant leased from appellee, Knapp, the flat in question for one year at a rental of thirteen dollars per month, Knapp to keep the premises in repair; that she held over from year to year; that in May, 1910, the flat being out of repair she notified Knapp that if the same was not repaired she would vacate it; that Knapp through his agent, Hanson, agreed that if she would make the necessary repairs he would allow her to occupy the same for two months, rent free, and would give her a written lease for two years with an extension of three years more, if the premises were not sold, at the same terms as her original lease under which she had occupied the premises since 1905, and that if the written lease was not delivered to her by October 1, 1910, her tenancy from year to year would continue until the lease was delivered; that she made valuable and necessary improvements and fully performed her part of the ag’reement, and demanded the written lease, which was refused and has not been delivered, and that she was only allowed one and one-half months’ rent free; that on December 1,1910, during the absence of appellant from the State, a notice to vacate the premises on January 1, 1911, was served on a daughter of appellant at the premises in question, and that appellees threatened to forcibly eject appellant and her property from the premises if she remained therein after January 1, 1911; that to avoid litigation she offered to accept a lease of the premises for a short term, but that the conditions imposed by appellees were so harsh and unreasonable that she was compelled to and did withdraw the offer and to resort to the courts. The amended bill concludes with a prayer for specific performance of the contract of May, 1910, for a lease from October 1, 1910, for two years with an additional three years, if the premises were not sold. “That defendants be required to here litigate the matters above complained of; that this court retain jurisdiction of this cause to the end and do complete justice between the parties”; and that upon the hearing appellant be decreed to be in lawful possession of the premises, for an injunction and for other relief.

Upon the filing of the original bill, a temporary injunction was awarded without bond. The writ of injunction was duly issued and served on appellees.

Appellees answered the amended bill and admit that Knapp is the owner of the building and that he by his agent verbally leased the flat to appellant, but deny that the original leasing was for a year; deny that appellant held over from year to year, but aver that the original leasing was for one month at thirteen dollars per month and that thereafter appellant held over as a tenant from month to month; deny that Knapp ag’reed to keep the premises in repair; admit that in May, 1910, the premises were in need of repair, but deny that Knapp through Hanson, his agent, verbally agreed that if appellant would repair the same he would give her the lease averred in the bill; deny that appellant made valuable improvements on the premises; aver that Knapp agreed with appellant that if she would do certain cleaning and painting he would allow her to occupy the same rent free for one and one-half months only; admit that on December 1, 1910, the notice mentioned in the amended bill to terminate the tenancy in thirty days was served as a basis of an action for forcible detainer or ejectment; aver that oh December 30, 1910, appellant through her attorney agreed with appellee, Knapp, through his attorney that if Knapp would allow appellant to remain in possession of the flat until May 1,1911, she would lease the same until that date and would then vacate the same; that appellant refused to execute such lease, but that Knapp permitted her to remain in possession of the premises until May 1, 1911, but has not consented to her remaining in possession thereof after that date; that by reason of being temporarily enjoined they have no remedy except such as can be obtained in this suit, and pray that the amended bill of complaint be dismissed.

Appellees also filed a cross-bill in which the matters set out in their answer are reiterated and in which they pray that the contract of December 30, 1910, be specifically enforced; that an account be taken of the amount due from appellant by reason of the tenancy and wrongful holding over; that she be decreed to pay the amount found to be due for rent after May 1, 1911, and that the court retain jurisdiction and order appellant to vacate the premises within a reasonable time, not exceeding thirty days.

Appellant in her answer to the cross-bill denies that her original tenancy was from month to month, but reiterates the averment in her bill that it was from year to year; denies that she through her attorney made the contract of December 30, 1910, set out-in the cross-hill; denies that she was wilfully withholding possession of the premises and avers that she was lawfully in possession of the same and had paid the rent thereon up to the filing of her answer to the cross-bill.

General replications were duly filed to both the original bill as amended and to the cross-bill.

The evidence was taken in open court before the chancellor and was conflicting on most of the important issues. The testimony of appellant and her daughter, if uncontradicted, was amply sufficient to warrant the court in finding that the original bill of complaint as amended was established. The testimony of Hanson, the agent of appellee, Knapp, pointedly denied every material averment in the bill. The chancellor who heard this evidence gave more credence to the testimony of Hanson than he did to that of appellant and her daughter, and found that appellant had failed to prove her bill and so decreed. When a case is heard by the chancellor on oral testimony taken in open court, his findings and decree will not he set aside, bécause not supported by the evidence, unless there is palpable error in such findings. Williams v. Thwing Electric Co., 160 Ill. 526; Callender v. Dole, 198 Ill. 616. While reading from this record it would seem that the weight of the evidence tends to prove the averments of the bill, it may well be that the appearance of the respective witness while on the stand and their manner while testifying was such as to amply warrant the court in believing the testimony of Hanson and disbelieving that of appellant and her daughter. Under the authorities above cited we do not feel warranted in disturbing this decree in that respect.

The court by its decree also awarded the possession of the premises in question to appellees upon their cross-bill. This was error. The original bill was brought to enforce the specific performance of a claimed contract to make a lease. The subject-matter presented by the bill is within the equitable jurisdiction of the court. The proof, however, did not support the allegations of the bill, and the same was dismissed by the court for want of equity. By the cross-bill appellees asked that appellant be ousted from the possession of the premises and that the possession be restored to them. The question of the rights of the parties to the present possession of the premises was not involved in the original or the amended bill of appellant. That question not being germane to the original bill could not properly be presented by a cross-bill. In Patterson v. Northern Trust Co., 231 Ill. 23, the Court said:

“A cross-bill must be confined to the subject matter of the original bill, and cannot introduce new and distinct matters not embraced in the original bill. (3 DanielTs Ch. PI. & Pr.—Perkins’ ed.—p. 1743.) Matters in the cross-bill must be germane to the matter involved in the original bill. The new facts which it is proper for the defendant to introduce thereby are such, and such only, as are necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the complainant rests his right to aid or relief.”

Again, the question of the right of appellees to be, restored to immediate possession of the premises in question was a purely legal right that could be enforced in an action of ejectment or forcible entry and detainer, but of which a court of equity had no jurisdiction. Parker v. Shannon, 114 Ill. 192; Gage v. Mayer, 117 Ill. 632-639. The rule that when the equitable jurisdiction of a court is once brought into action in a proper case, the court will retain jurisdiction of the parties and the subject-matter in order to do complete justice to all concerned, even in some instances to the extent of enforcing purely legal rights, applies only when the court retains the original case in order to grant some substantial- equitable relief.

Even if the bill states a case entitling the complainant to equitable relief, if the. proof fails to establish the averments of the bill in that respect, the court is without jurisdiction to proceed further and determine rights that are properly cognizable in a court of law. In other words, equitable rights must be both averred and proven before purely legal rights will be determined by a court of equity. Toledo, St. L. & N. O. R. Co. v. St. Louis & O. R. Co., 208 Ill. 623, 632; Brauer v. Laughlin, 235 Ill. 265-272. The rule last announced applies whether the relief is sought by bill or cross-bill. Gage v. Mayer, supra; Thomas v. Thomas, 250 Ill. 354-361; Wilcoxon v. Wilcoxon, 230 Ill. 93.

In the case last above cited, the Court says on page 104 of the opinion:

“A cross-bill when filed to obtain affirmative relief, like an original bill, should set forth equitable grounds of relief and show a state of facts upon which a court of equity could be called upon to act if the same grounds were presented in an original bill.”

Appellees insist that the fact that they have an adequate remedy at law cannot be availed of by appellant, because she did not set up that defense in her pleadings. The same contention was made in Toledo, St. L. & N. O. R. Co. v. St. Louis & O. R. Co., supra. The Supreme Court, in disposing of that question, used the following language:

“It is said, however, that as the answer to the amended bill does not state that complainants had an adequate remedy at law, appellees should not now be permitted to contend that a court of equity cannot in this case properly determine the title to this property, and in support of that proposition we are referred to Monson v. Bragdon, 159 Ill. 61, Village of Vermont v. Miller, 161 id. 210, and Kaufman v. Wiener, 169 id. 596. This doctrine must be accepted with the qualification found in the latter case, which is, ‘provided, of course, the subject matter of the litigation and the character of the relief are not foreign to the power of a court of equity. ’ We think the subject matter of the litigation presented by this branch of the bill under consideration so foreign to the power of a court of equity as to bring this case within the quoted language. The bill, on its face, states a good cause of action, because it is alleged in apt words that the deed of the Ohio River Company was obtained by fraud and misrepresentation. The lack of jurisdiction did not appear on the hearing until that question was disposed of. We think this rather falls within the class of cases discussed in Richards v. Lake Shore and Michigan Southern Railway Co., 124 Ill. 516, of which it is there said: ‘It is a fundamental principle that parties to a suit cannot, by consent, confer jurisdiction with respect to the subject matter of the suit, by stipulation or consent, for that is fixed by the law and is consequently beyond the control of the parties.’ ”

It follows that the Circuit Court erred in retaining the case to adjudicate the matters presented by the cross-bill of appellees and in decreeing to them the possession of the flat in question.

The decree of the Circuit Court is, therefore, affirmed in so far as it dismissed the original bill, as amended, and is reversed in all other respects, and the cause is remanded to the Circuit Court with directions to dismiss the cross-bill. The costs in this court will be apportioned equally between the parties, appellant will pay one-half and appellees will pay one-half thereof.

Affirmed in part, reversed in part and remanded with directions.


text:
    Joseph Weissenrieder, Appellee, v. Anthony J. Stumpf, Appellant.
    Gen. No. 20,550.

      (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed.
    Opinion filed June 24, 1914.
    Statement of the Case.
    Bill by Joseph Weissenrieder against Anthony J. Stumpf and William C. Heinemann asking that on final hearing the defendants be restrained from incumbering, disposing of or collecting or in anyway transferring a certain trust deed and notes described in the bill and for a mandatory order compelling them to surrender the same to complainant. Later, the bill was dismissed as to Heinemann and an amended bill was filed against defendant Stumpf alone, averring on information' and belief that the deed and notes had been transferred by Stumpf to Heinemann and by him to an innocent purchaser without notice and praying for an injunction restraining Stumpf from transferring or incumbering certain real estate and shares in an incorporated company owned by him, and for an accounting. The bill as amended was presented to the chancellor who, without notice to the defendant and without requiring an injunction bond, ordered a writ of injunction to issue. To reverse the order, defendant appeals.
    A. G. Dicus, for appellant.
    No appearance for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 183 —when amended hill must he verified. To warrant a temporary injunction without notice on an amended bill, the averments of the amended bill must be verified.

2. Injunction, § 189*—sufficiency of hill to enjoin transfer of property. A bill to enjoin a person who had transferred a trust deed and notes from transferring or incumbering certain real estate and personal property owned by him and for an accounting held not to aver sufficient facts to warrant an injunction without notice or with notice, where there is no showing that defendant is insolvent, or that a decree for any amount found by an accounting to be due complainant could not be enforced if the property was sold, or that the money derived from the sale of the trust deed and notes were invested in the property which the defendant was to be restrained from selling, or that complainant’s rights would be in anyway prejudiced by the sale of the property.


author: Mr. Presiding Justice Brown

text:
    Raymond Concrete Pile Company, Appellee, v. Hartman Furniture & Carpet Company et al. On Appeal of Hartman Furniture & Carpet Company, Appellant.
    Gen. No. 19,289.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 29, 1914.
    Statement of the Case.
    Bill by Raymond Concrete Pile Company against Hartman Furniture and Carpet Company, Augustus S. Peabody, Trustee, Falkenau Construction Company, Frederick A. Siebold and Henry Siebold to enforce a mechanic’s lien for furnishing materials and performing work for concrete piling and footings required for the erection of a warehouse on the property of the defendant Furniture Company. From a decree declaring a lien for $21,647.40, being the amount found due with interest, in favor of complainant and ordering certain cross-bills to be dismissed for want of equity, the Furniture Company appeals.
    Abstract of the Decision.
    1. Building and construction contracts, § 47

      —when reasonable time allowed for extra worlc. Where extra work not specified in a building contract is demanded and executed, a reasonable time, independently of the general time limit provided by the contract for the particularly specified work, is allowed to the contract- or who has undertaken to do it in accordance with the other provisions of his contract.
    2. Building and construction contracts, § 15*—when contract does not call for extra worlc. The recognition in a building contract of the possibility that extra work might be necessary, and the fixing of a price for it in that contingency, does not make the contract call for such extra work so that the time fixed for the completion of the contract applies to such work.
    3. Mechanics’ liens, § 203*—when decree may allow interest. A decree awarding a mechanic’s lien may provide for interest on the whole amount found to be due, including the amount for extra work, where the price for the extra work was provided for in the contract and the "whole amount was found to be due under the provisions of the written contract.
    David K. Tone, for appellant.
    William S. Elliott, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion, of the court.