text:
    Benjamin Schwartz, appellee, v. Elias Fischheimer, appellant.
    Gen. No. 25,384.
    Action for rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John R. Rooney, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Harry Bierma, for appellant. Seymour Cohen, for, appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Taylor

license: Public Domain

text:
    George W. Warhurst, appellee, v. J. F. Rowley Company, appellant.
    Gen. No. 25,405.
    Action to recover damages for breach of contract of employment by discharge. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph A. Sabath, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Earl J. Walker, for appellant. Charles L. Swanson and Joseph D. Irose, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Max Boldt, appellee, v. William Bachrach, appellant.
    Gen. No. 25,446.
    Action to recover damages for personal injuries resulting from collision between automobiles. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Rehearing denied November 16, 1920.
    Gallagher, Kohlsaat & Rinaker, for appellant. H. E. Wynekoop, for appellee; Charles C. Spence, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Moses Richardson, appellee, v. India Tea Company, appellant.
    Gen. No. 25,473.
    Action for injuries to street cleaner struck by auto-truck. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Joseph R. W. Cooper, for appellant. Zaeh Hofheimer, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    South Slavonic Catholic Union et al., defendants in error, v. Robert E. L. Brooks, administrator de bonis non of estate of Frank Medosh, deceased, plaintiff in error.
    Gen. No. 24,996.
    Bill to restrain the prosecution of two suits. Decree for complainants. Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 4, 1920.
    Prank Poster, for plaintiff in error. Cannon & Poage, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    P. F. Cunningham, appellant, v. Wallace S. Clark et al., trading as A. R. Clark & Company, appellees.
    Gen. No. 25,317.
    Action on contract to recover fog labor and materials furnished. Judgment for defendants. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed November 4, 1920.
    Clithero & Swett, for appellant. J. S. Baily, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Clarke-McElroy Publishing Company, appellant, v. Chicago Hebrew Institute, appellee.
    Gen. No. 25,329.
    Garnishment proceedings. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and judgment here.
    Opinion filed November 4, 1920.
    Rehearing denied November 16, 1920.
    Norman K. Anderson, Benjamin Clark and Robert J. Scott, for appellant. Israel Cowen, Nathan D. Kaplan and Jacob Kaplan, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Frank M. Minninger, appellee, v. J. H. Hawkins, appellant.
    Gen. No. 25,377.
    Action for injuries to pedestrian struck by automobile. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Bowles & Bowles, for appellant. Busch, Leesman & Roemer and George D. Wellington, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Joe Cavagnaro, appellant, v. City of Chicago, appellee.
    Gen. No. 25,399.
    Action to recover for injuries caused by lifting of bridge. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed November 4, 1920.
    Matthew J. O'Brien, for appellant; Thomas M. Poynton, of counsel. Samuel A. Ettelson and William H. Devenish, for appellee; Robert H. Farrell, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O 'Connor

text:
    Philip Hecht by David P. Schultz, appellee, v. Samuel Feld, appellant.
    Gen. No. 25,408.
    Action of forcible detainer for possession of a hallway. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding. Heard in this Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed November 4, 1920.
    Andalman & Cohen and Philip B. Leviton, for appellant. No appearance for appellee.
   Mr. Justice O 'Connor

delivered the opinion of the court.


author: Mr. Justice Thomson

text:
    A. L. Clark & Company, Inc., plaintiff in error, v. Charles Levy Company, defendant in error.
    Gen. No. 25,305.
    Motion for an appeal from an^ order setting aside a default judgment. Denied. Error to the Municipal Court of Chicago; the lion. Charles F. McKinley, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed.
    Opinion filed November 4, 1920.
    Moses, Rosenthal & Kennedy, for' plaintiff in error; Hirsch E. Soble, of counsel. B. M. Shaffner, for defendant in error.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    John E. Shatford, appellant, v. Miles J. Votava, appellee.
    Gen. No. 25,319.
    Action on a check. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and judgment here.
    Opinion filed November 4, 1920.
    Miller, Starr, Brown, Packard & Peekham, for appellant; Thomas McCall, of counsel. Edward L. England, for appellee; Glenn P. Sayers, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Jennie J. Leemon and Harry C. Leemon, plaintiffs in error, v. Jeannette Leytze, defendant in error.
    Gen. No. 25,335.
    Action by landlord to recover for house furnishings and wood taken by tenant. Judgment for nominal damages. Error to the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Harry C. Leemon, for plaintiffs in error. No appearance for defendant in error.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Lewis Hohmann, appellant, v. Christopher Mamer et al., appellees.
    Gen. No. 25,351.
    Bill for a partnership accounting. Bill dismissed. Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Spencer Ward, for appellant. Charles A. Williams, for appellees.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Alphons H. Gits and Remi J. Gits, trading as Gits Brothers Manufacturing Company, plaintiffs in error, v. Henry Ullrich and Emmet F. McElroy, defendants in error.
    Gen. No. 25,367.
    Bill to rescind a land contract for fraud. Bill dismissed. Error to the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Haase, Hanley & Howard, for plaintiffs in error. Morton T. Culver and Hoyne, O’Connor & Irwin, for defendants in error.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Charles F. Colcord, appellant, v. Frederick H. Bartlett & Company, appellee.
    Gen. No. 25,381.
    Action for conversion of fences and buildings. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Leslie H. Whipp, for appellant. E. P. Vail, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Edward Sullivan and Frank Sullivan, trading as Sullivan Brothers, appellees, v. F. Oppenheimer, appellant.
    Gen. No. 25,428.
    Action to recover purchase price of goods sold and delivered. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Archie H. Cohen, for appellant. Michael W. Kaveney, for appellees.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Loretta Reilly, appellant, v. Chicago Railways Company et al., appellees.
    Gen. No. 25,440.
    Action for injuries to passenger thrown to floor by jerk of street car. Judgment for defendants. Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Rehearing denied November 16, 1920.
    Morse Ives and E. Meers, for appellant. Harry P. Weber, George W. Miller and Arthur J. Donovan, for appellees; John B. Guilliams and Joseph D. Ryan, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    L. P. Smith, plaintiff in error, v. Julius Bauer Piano Company, defendant in error.
    Gen. No. 25,452.
    Action for money had and received for use of plaintiff. Judgment for defendant. Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    John S. Reynolds, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Martha Cochrane, appellee, v. Thomas J. Cochrane, appellant.
    Gen. No. 25,470.
    Action on promissory note. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Timothy J. Fell, for appellant; Hermann P. Haase, of counsel. Francis H. McKeever, for appellee; Charles Goodman, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    A. Holtzman, appellee, v. Emery Motor Livery Company, appellant.
    Gen. No. 25,479.
    Action to recover for damages to automobile by collision with another. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed November 4, 1920.
    Bassler, Bippus & Rose, for appellant. Litzinger, Healy & Reid, for appellee; James J. Finn, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Presiding Justice Waggoner

text:
    Third District.
    Emner Lee, defendant in error, v. T. J. Hankins, plaintiff in error.
    Error to the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at ,the April term, 1920.
    Affirmed on conflicting evidence.
    Opinion filed October 27, 1920.
    John É. Hogan and John M. Pfeifer, for plaintiff in error. Robert H. Patton, W. S. Greer and R. O. Neff, for defendant in error.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    Frank Haas, administrator of estate of Bertha Haas, deceased, defendant in error, v. Walker D. Hines, director general of railroads, plaintiff in error.
    Action to recover damages for death while riding in a buggy struck by a passenger train. Judgment for plaintiff. Error to the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed October 27, 1920.
    H. M. Steely and H. M. Steely Jr., for plaintiff in error. Isaac A, Love and Reuben B. Kilgore, for defendant in error.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. William Evans, plaintiff in error.
    Conviction on charge of selling liquor in anti-saloon territory. Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    John G. Friedmeyer, for plaintiff in error. O. F. Mortimer, for defendant in error; Edward Bree and James M. Weldon, of counsel.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    Harry J. Clark, appellee, v. Walker D. Hines, director general of railroads, appellant.
    Action to recover damages caused by delay in arrival of stock ears. Judgment for plaintiff. Appeal from the Circuit Court of Morgan county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Wilson & Butler, for appellant. William N. Hairgrove, for appellee.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    W. H. Schramm, appellee, v. Walker D. Hines, director general of railroads, appellant.
    Action to recover for damages to an automobile struck by a train. Judgment for plaintiff. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of facts.
    Opinion filed October 27, 1920.
    Cloud & Thompson, for appellant; John M. Elliott, of counsel. Schneider & Schneider, for appellee.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    James Calvin Utter for use of Emma Brown, appellant, v. J. Will Snyder, executor of last will of Cornelia H. Jacobs, deceased, appellee.
    Garnishee proceedings. Judgment for plaintiff. Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Fred Rhoads, for appellant James Calvin Utter. Y. V. Rardin, for appellant-Emma Brown. Shepherd, Trogdon & Dole, for intervening petitioner Robert N. Parrish, administrator.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    R. L. Gibbs, appellee, v. William D. Rohl, appellant.
    Motion to set aside an order dismissing an appeal from a justice of the peace for want of prosecution. Motion denied. Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Wilbur R. Wicks, for appellant. No appearance for appellee.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    Frank Meshikis, appellant, v. Springfield Consolidated Railway Company, appellee.
    Action to recover for personal injuries caused by collision between a street car and automobile. Judgment for defendant. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    William E. Fain, for appellant. P. B. Warren, A. M. Fitzgerald and H. H. Hartman, for appellee.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


text:
    Aaron E. Larch, administrator of estate of James R. Larch, deceased, appellee, v. J. A. Judy and C. J. Tucker, trading as Judy Wholesale Candy Company, appellants.
    Action to recover damages for death caused by truck driven at excessive speed. Judgment for plaintiff. Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    George B. and George M. Gillespie, for appellants; MeMillen & McMillen and Redmon, Hogan & Redmon, of .counsel. Whitley & Fitzgerald, for appellee; Arthur F. Delahunty, of counsel.
   Mr. Presiding Justice Waggoner

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    George O. North, appellant, v. Henry Mahannah and Charles Mahannah, appellees.
    , Bill to foreclose a mortgage assigned to plaintiff. Judgment for defendants. Appeal from the Circuit Court of Macon county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Hanford Savage and William G. Cochran, for appellant. MeDavid & Monroe, Whitley & Fitzgerald, Jennings & Elder and Jack & Boggess, for appellees; C. L. Foster, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    E. R. Kirgan, defendant in error, v. Warren C. Fairbanks, plaintiff in error.
    Assumpsit for failure to construct drainage ditches on lands leased by plaintiff from defendant. Judgment for plaintiff. Error to the Circuit Court of Greene county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.
    Whiteside & Wright, for plaintiff in error. T. I. MeKnight, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Tony Stankovich, appellee, v. A. Biankini et al., appellants.
    Assumpsit on a note and guaranty thereof. Judgment for plaintiff. Appeal from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.
    Robert D. Melick, for appellants. Hogan & Reese, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Harry Oberman, administrator of estate of Isaac Oberman, deceased, plaintiff in error, v. Springfield Consolidated Railway Company, defendant in error.
    Action to recover for death caused by collision between horse and wagon driven by deceased and a street car. Judgment for defendant. Error to the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    John G. Friedmeyer, William J. Lawler and Herman H. Cohn, for plaintiff in error. P. B. Warren, A. M. Fitzgerald and Harleigh H. Hartman, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    John S. Sheppard, appellee, v. Lucy I. Scott, appellant.
    Assumpsit to recover sum to be paid in consideration of forbearance to contest a will. Judgment for plaintiff. Appeal from the Circuit Court of Morgan county; the Hon. Elbert S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    W. N. Hairgrove and Wilson & Butler, for appellant. H. P. Samuell, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Helen Ayresman, administratrix of estate of Loren V. Ayresman, deceased, appellee, v. Wabash Railway Company, appellant.
    Action under Federal Employers’ Liability Act for death while employed as fireman on an interstate train. Judgment for plaintiff. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Cloud & Thompson, for appellant. Phillips & Middleton and Frank Lindley, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellee, v. Joseph H. Weinstein and Ed. Walters, trading as Weinstein & Walters, appellants.
    Assumpsit for rent of premises occupied by defendants under a written lease. Judgment for plaintiff. Appeal from the Circuit Court of Montgomery county; the Hon. Thomas E. Ford, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    J. D. Wilson, for appellants; Lane, Dryer & Brown, of counsel. George B. Gillespie, for appellee; Frank H. Littleton, Hill & Bulling-ton and George M. Gillespie, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Charles F. Douglass, appellant, v. John Chittick, appellee.
    Assumpsit to recover for services rendered in procuring a purchaser for defendant’s farm. Judgment for plaintiff. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    John G. Friedmeyer and Oscar J. Putting, for appellant. A. A. Leeper and C. M. Martin, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Roy Stutzman, appellee, v. Edward Mangan, appellant.
    Action for commissions due for procuring a purchaser for defendant’s farm. Judgment for plaintiff. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    S. Ludlow, for appellant; Cloud & Thompson, of counsel. Schneider & Schneider, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Edwin S. Coombs, appellant, v. John Rowland, appellee.
    Action to recover farm rent. Judgment for defendant. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Clyde P. Johnson and Mack & Mack, for appellant. O’Harras, Wood & Walker, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Frank M. McGowan, appellee, v. Alonzo H. Barth, appellant.
    Action of forcible entry and detainer on ground of forfeiture because of use of premises for gambling. Judgment for plaintiff. Appeal from the Circuit Court of Sangamon county'; the Hon. .E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Edmund Burke, A. M. Fitzgerald and Harleigh H. Hartman, for appellant. Alonzo Hoff, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    John M. Merrick, appellant, v. Sangamon Loan & Trust Company, conservator, appellee.
    Appeal from a judgment overruling objection to the allowance of an attorney’s fee. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    William E. Fain, for appellant. , Brown, Hay & Creighton, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    Charles Woodworth, appellee, v. William Murray, appellant.
    Action to recover amount due for corn sold and delivered. Judgment for plaintiff. Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Manford Savage, for appellant. Little & Finfroek, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    George D. Corwine, Sr., trustee, appellee, v. Lillie E. Russell, appellant.
    Action in forcible entry and detainer for nonpayment of rent. Judgment for plaintiff. Appeal from the Circuit Court of Logan county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Covey & Woods, for appellant. Beach & Trapp and McCormick & Murphy, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    George D. Corwine, Sr., trustee, appellee, v. Isa Marie Wigginton, appellant.
    Action in forcible entry and detainer. Judgment for plaintiff. Appeal from the Circuit Court of Logan county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Covey & Woods, for appellant. Beach & Trapp and McCormick & Murphy, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    Emner Lee, appellee, v. J. F. Prather, appellant.
    Bill for a decree in conformity with the terms of a stipulation. Decree for plaintiff. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Barber & Barber, for appellant; Sidney S. Breese, of counsel. W. S. Grier, R. C. Neff and Robert H. Patton, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    William J. Sluder, appellant, v. Edna Sluder, appellee. Edna Sluder, appellee, v. William J. Sluder, appellant.
    Bill by wife for separate maintenance on ground of adultery and desertion. Bill for divorce by husband. Two cases consolidated. Decree for wife. Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    A. E. and R. C, DeMange, for appellant. Livingston & Whitmore, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    Elmer Carlton, appellee, v. American Railway Express Company, appellant.
    Action to recover value of bull calf yhich died of pneumonia while in possession of common carrier. Judgment for plaintiff. Appeal from the Circuit Court of Christian county; the Hon. Thomas E. Ford, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Hogan & Reese, for appellant. McBride & Vogelsang, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    William E. Graham, appellant, v. Town of North Okaw et al., appellees.
    Bill for an injunction restraining the construction of a wall and embankment without sufficient openings for the passage of surface water from plaintiff’s premises. Bill dismissed. Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed October 27, 1920.
    Vause & Kiger, for appellant. Edward C. Craig, Donald B. Craig, James W. Craig, Jr., Fred H. Kelly and James Craig VanMeter, for appellees.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    Robert J. Abell, appellee, v. Springfield Consolidated Railway Company, appellant.
    Action for personal injuries and damages to an automobile in collision between it and a street ear. Judgment for plaintiff. Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    P. B. Warren, A. M. Fitzgerald and J. A. Londrigan, for appellant. Edmund Burke and William J. Lawler, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    In re estate of Bridget Merrick, deceased. John M. Merrick, appellant, v. Cecilia A. Scanlan, appellee.
    Petition to set aside the sale of an automobile by an executrix under an order from the probate court. Petition dismissed. Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    William E. Fain, for appellant. T. J. Condon and Robert H. Patton, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    Honora Pembroke, administratrix of estate of James Pembroke, deceased, appellee, v. Maggie E. Martin and David B. Martin, appellants.
    Action on a promissory note. Judgment for plaintiff. Appeal from the Circuit Court of Piatt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    James L. Hicks and Carl S. Reed, for appellants. E. J. Hawbaker, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    Nora Stewart, appellee, v. Alexander Supply Company, appellant.
    Action to recover salary and commissions. Judgment for plaintiff. Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Henley & Douglas, for appellant. Albert C. and Ben F. Anderson, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.


author: Per Curiam.

text:
    Mary A. Adkins, administratrix of estate of Joshua D. Adkins, deceased, appellee, v. State Bank of Springfield et al., appellants.
    Motion to dissolve a temporary injunction restraining the collection of a judgment. Motion denied. Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed October 27, 1920.
    Carey E. Barnes, for appellants. Hardin W. Masters, for appellee.
   Per Curiam.


text:
    Guy E. Rook, appellee, v. Walker D. Hines, director general of railroads, appellant.
    Action to recover damages caused by delay in arrival of stock cars. Judgment for plaintiff. Appeal from the Oircuit Court of Morgan county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.
    Wilson & Butler, for appellant. William N. Hairgrove, for appellee.
   Per Curiam.


author: Welch, J.

text:
    The Rockford Insurance Company v. Elisha Warne.

      Fraud — Insurance—Combination Building — Action on Notes Given for Premiums — Consideration—Failure of — Expression of Opinion — Degree of Vigilance Bequired — Agency—Evidence.
    1. Mere expressions of opinion employed in urging or importuning another to engage or invest in any matter are regarded as mere inducement, and form no ground upon which to base fraud.
    2. The law requires men in their dealings with each other to exercise proper vigilance and to apply their attention to those particulars which may be supposed to be within reach of their observation and judgment, and not close their eyes to the means of information which are accessible to them.
    4. In an action on four promissory notes given in payment of insurance premiums, it is held: That certain representations made by the agent of the plaintiff touching the rate of insurance were not fraudulent; that if the policy on a sheep barn, which was used for other purposes, was worthless, it would not justify the repudiation of all the notes; that certain instructions, to the effect, that the defendant is not liable if the agent of the plaintiff made any false statements, were erroneous; and that certain evidence was improperly admitted.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac Gr. Wilson, Judge, presiding,

      Statement by "Welch, J.. This action was brought on four promissory notes made by appellee to appellant — one for the sum of $40, dated May 17, 1883, due June 1, 1884, given in payment . of premium on policy of insurance No. 183812, on dwelling house and furniture of appellee. One note for the sum of $66, dated May 17, 1883, and due June' 1, 1884, in payment of premium on policy No. 183814, on farm property and stock. One for the suni of $36, dated May 17, 1883, and due May 1, 1884, in payment of premium on policy No. 183827, on sheep barn. One for the sum of $32, dated May 19, 1883, due May 1, 1884, in payment of premium on policy No. 183828 on stallion. These policies were five year policies, issued by the appellant to appellee. The first intimation given by the appellee to the appellant of any dissatisfaction is contained in his letter to the appellant of May 14,1884, written in answer to one from appellant, and after two of the notes were due. This letter was as follows:
    “ Your card 10th inst. at hand. Tour agents misrepresented in order to obtain applications. They said if I sold stock, insurance might be deducted from notes; said they were giving me special rates on horse, which was false; can get less rates in other first class companies. I want to pay for time I have been insured and surrender policies, as your agent agreed I-might in case of dissatisfaction. Elisha Warne.”
    On the 20th of the same month appellee wrote to appellant again, urging as a reason for not paying the note that he had been deceived by the agents of appellant in regard to the notes. Appellant replied that his policy provided for the cancellation on stock sold and it would do so on returning policy and that if he would send policy they would cancel $350 insurance on stock and give him credit therefor. On the 29th day of June, 1884, appellee returned his policies to appellant inclosed in the following letter:
    “Eooicford Insurance Company:
    “ I herewith surrender policies as applications obtained by fraud. I decline to pay for same. Tour agents misrepresented to others one party says he paid $50 for what he could get for half in other good companies.
    Elisha Warne.”

      On the bottom of this letter appellant wrote, and inclosed policies to appellee : “We can not ^accept surrender of these policies.” Suit was then brought by appellant on these notes before a Justice of the Peace, judgment and appeal to the Circuit Court by appellee, judgment in Circuit Court for appellee, from which judgment this appeal is taken.
    Messrs. R. N. Botsford and Charles H. Wayne, for appellant.
    The expression of an opinion as to the value, quality or desirability of an article, or urging or importuning a party to engage or invest in any matter, is regarded as mere inducement, and forms no ground upon which to found fraud.
    The statements alleged to have been made by the agents of plaintiff are clearly within this rule. Tuck v. Downing, 76 Ill. 71; Fountleroy v. Wilcox, 80 Ill. 477; Neidefer v. Chastain, 71 Ind. 363.
    A party making a false statement must have known its falsity to make it available as a defense. Whorf v. Roberts, 88 Ill. 426.
    It was the duty of the court to tell the jury what misrepresentations, if any, these agents made which justified the defendant in repudiating his contract. Howard Fire Ins. Co. v. Cormick, 24 Ill. 455 ; Gehr v. Hagerinan, 26 Ill. 438 ; Mitchell v. Fond du Lac, 61 Ill. 174; C., B. & Q. R. R. Co. v. Hale, 2 Ill. App. 150 ; Harding v. Town of Hale, 83 Ill. 501; White v. Murtland, 71 Ill. 250; Bullock v. Narrott, 49 Ill. 62; Holly v. Augustine, 2 Ill. App. 108.
    Messrs. Charles Wheaton and W. E. S. Hunter, for appellee.
    It was peculiarly within the province of a jury to determine whether the notes in question were procured from the appellee in good faith, and a finding of the jury on that question will not be disturbed by the court.
    A verdict on'the bona fides of a transaction properly submitted to a jury will not be disturbed. Hart v. Wing, 44 Ill. 141.

      Where there is a question of fraud the finding below will not be disturbed without the strongest reasons. Eastman v. Brown, 32 Ill. 53.
    Where bad faith or fraud is charged the action is in nature ex deUcto, although in form ex contractu. And in actions ex delicto courts will seldom interfere with the findings of a jury. Fish v. Roseberry, 22 Ill. 288.
    A verdict will not be set aside where the evidence is conflicting, even though it is against the weight of evidence. Morgan v. Ryerson, 20 Ill. 343 ; Martin v. Ehrenfels, 24 Ill. 187 ; Pulliam v. Ogle, 27 Ill. 189 ; Millikin v. Taylor, 53 Ill. 509; Chicago v. Garrison, 52 Ill. 516 ; Creote v. Willey, 83 Ill. 444; Howett v. Estelle, 92 Ill. 218.
    When the evidence is irreconcilable it is for the jury to weigh and give it such credit as it deserves, and while the evidence upon which a verdict is based in such a case may be unsatisfactory on paper, a new trial will not be granted on the ground that the evidence fails to support the finding. Howett v. Estelle, 92 Ill. 218.
    A judgment will not be reversed because the court below admitted improper evidence, if sufficient legal evidence appears in the record to. sustain the verdict. Schultz v. Lepage, 21 Ill. 160; Boynton v. Phelps, 52 Ill. 210.
   Welch, J.

If there is any defense to these four notes we are unable to discover it. By the verdict and judgment appellant carried this insurance witnessed by the four policies for over a year for nothing. Even granting everything that is claimed, i. e., that he was over-persuaded by the agents of appellant to take this insurance, and that such agents misrepresented certain facts, which was the inducement to him to take the policies, i. e., that they wore giving him lower rates than he could get anywhere else ; that if dissatisfied he could leave the company at the end of the year by paying the proportioned rate; that he could have deductions made for stock sold, and that they had insured other parties in that vicinity and particularly the stallion of Charles Sanders, the rule is well settled that the expression of an opinion as to the value, quality or desirableness of an article, or urging or importuning a party to engage or invest in any matter, is regarded as mere inducement, and forms no ground upon which to base fraud. The statements alleged to have been made are clearly within the rule. Tuck v. Downing, 76 Ill. 71.

Kerr on Fraud and Mistake, states the rule that “ the law requires men in their dealings with each other to exercise proper vigilance and to apply their attention to those particulars which may be supposed to be within reach of their observation and judgment and not close their eyes to the means of information which are accessible to them.” Appellee had large business experiences, having been for the last twenty-five years engaged in the sale of agricultural implements, doing a business of some'§20,000 a year and as he says, dealing with all kinds of men, with some sharp ones and otherwise. There were local insurance agents within twenty or thirty rods of his residence and place of business to whom he could and (as stated in the authority, supra,) it was his duty to have applied and ascertained the truth of the representations of the agents of appellant as to the rate of insurance. He can not even, if it was represented a§ he stated, now be allowed to interpose the untruthfulness of such representations as a defense to this suit. Appellee admits that appellant offered to cancel the stock sold. There was no misrepresentation in that particular, the policy itself providing for it. It is insisted by counsel for appellee that policy Ho. 183827, on the sheep barn, was worthless, the building being a combination building, used as an agricultural house and warehouse, etc. This objection if well taken, which we do not concede, could only apply to the note given in payment for that policy. It would not furnish a shadow of reason for repudiating the notes given in payment for the other three policies. We hold that if the agent of the appellant, having examined the building and having written the application for appellee, describing the building, knew as well as the appellee did that it was also used for purposes other than a private barn, appellant would have been liable in case of loss. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Andes Ins. Co. v. Fish, 71 Ill. 620. That being the case there was no valid defense to the note given in payment for that policy.

The first and second instructions given for appellee were erroneous. They left the jury to judge of both the law and the evidence and were calculated to and didmislead. The jury were virtually told that if the agents of appellant made any false statements, whether material or not, they should find for the defendant. Every statement made by a party as an inducement for another to make a contract, although untrue, gives no right of action. And it was the duty of the court to tell the jury what misrepresentations, if any, the appellant’s agents made which would justify the appellee in repudiating his contract and not leave it to the jury to determine which, if any, of the alleged misrepresentations of the agents amounted to a fraud. Howard Fire Ins. Co. v. Cormick, 24 Ill. 455; Mitchell v. Town of Fond du Lac, 61 Ill. 174; White v. Murtland, 71 Ill. 250.

It was error to permit Merrill to testify that no reputable company would knowingly insure a combination building as a barn. It was also error to permit him to testify to the conversation between him and appellee. He vyas not the agent of appellant to make the statements he did. It was also error to allow the appellee to testify as to the conversation.

For the errors herein indicated this judgment is reversed, cause remanded, and venire de now awarded.

Judgment reversed and ccmse remanded.


text:
    Thomas Alldritt, Imp’d Richard Alldritt. v. The First National Bank of Morrison.

      Confession of Judgment on Note in Vacation — Extension of Note — Power of Attorney — Affidavit—Practice—Jurisdic.tion,
    1. Where a power of attorney to confess judgment on a note authorizes a confession at any time after the date of the note, a confession before the expiration of an extension of the note will be valid.

      2. A judgment entered by confession, entered in vacation upon a power of attorney which was more than a year and a day old, will not be set aside merely for want of an affidavit showing that the defendant was alive, and the debt, or some part thereof was due and unpaid. Some equitable ground of relief must also be shown.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of Whitesides County ; the Hon. John V. Eustace, Judge, presiding.
    Statement by Welch, J. On the 28th day of April, 1883, the defendant in error loaned to the plaintiff in error the sum of $550 for the term of one year, with interest at the rate of eight per cent, per annum. The interest for the year was paid in advance. To secure the payment of this money, the plaintiff in error together with one ¡Richard Alldritt as security made, executed and delivered to the defendant in error their promissory note and power of attorney in the words and figures as follows:
    “$550. Morrison, III., April 28, 1883.
    “ One year after date we promise to pay to the First ¡National Bank of Morrison, or order, the sum of five hundred and fifty dollars, with interest at eight per cent, per annum from maturity until paid; value received.
    “And it is expressly agreed that if default be made in the payment of the interest when due, the entire principal shall become due and payable, and the holder of this note may proceed at his option to collect the same. And we hereby appoint any attorney of any court of record in any State or Territory of the United States to appear for us in any court, in term time or vacation, at any time after date, and waive the issue and service of process and confess a judgment against us in favor of the then holder hereof, for the amount of the above note, also interest then due, and costs, including $60 attorney’s fee, and to file a cognovit for that amount, and an agreement releasing all errors and waiving all appeal in said cause, and all advantage to which we may be entitled by virtue of any and all exemption laws of the State, and any State or Territory where judgment may be entered by virtue thereof, and that no bill in equity shall be tiled to interfere with the opera-] tion of said judgment, and hereby consent to immediate execution upon the judgment so rendered. All signers to this note are principals. ¡No extension of the time of payment, with or without our knowledge, by receipt of interest or otherwise, shall release us, or either of us, from the obligations of payment.
    “Witness our hands and seals the day and year above written.
    “ Thos. Alldbitt, [seal]
    “ ¡Richard Alldbitt. [seal] ”
    That at thé maturity of this note and on the 28th day of April, 1884, it was further agreed between the plaintiff in error and the defendant in error that in consideration of the plaintiff in error paying to the defendant in error the sum of §44, interest on the sum of $550 for one year from the maturity of this note, the defendant in error agreed to extend the payment of the $550 for one year, and until the 28th day of April, 1885. That on the 10th day of January, 1885, the defendant in error caused a judgment to be confessed and entered in vacation by the Clerk of the Circuit Court for Whiteside County, on said note, for the sum of $550 and $60 attorney’s fee. That at the next term of the Circuit Court after this judgment was so entered, the plaintiff in error filed his motion in the court, asking to have this judgment vacated. On the hearing of the motion the defendant in error entered a remitter of the unearned interest money, and the court overruled the motion and exceptions were taken, and the case is now brought to this court.
    Messrs. C. J. Johnson and George H. Fat, for plaintiff in error.
    The attorney in fact who confessed the judgment in this case had no power to enter the appearance -of the defendant until the money mentioned in the promissory note was actually due and payable, and the court had no jurisdiction over the defendants, therefore the judgment and all subsequent steps under it are void. Waterman v. Jones, 28 Ill. 54; White v. Jones, 38 Ill. 159 ; Baldwin v. Freydendall, 10 Ill. App. 106.
    In this case the holder of the note could not declare the principal sum due except for non-payment of interest.
    Whatever may have been the rights or liabilities of these parties under the original contract entered into between them at the time this money was first loaned and the note and warrant of attorney were executed, or whatever their understanding was at that time with regard to the rights of the bank to cause a judgment to be entered on this note, that contract was on April 28, 1884, entirely abrogated so far as the terms and condition of the payment of the money mentioned in this note were concerned. By this new contract the bank, in consideration of the sum of §44 as interest for the use of this money until April 28, 1885, paid by the plaintiff in error, agreed with him to extend the time of payment of the money loaned for the further period of one year and until April 28, 1885. Mor were there any conditions or reservations in this new agreement whereby the bank reserved the right to cause a judgment to be entered on this note until the full extent of the time given.
    It certainly must have been the clear understanding of the parties, at the time of the extension of the time of payment of this money, that a judgment should not be entered on the note until the expiration of one year from that date. If not, why did the plaintiff in error pay and why did the bank receive the full amount of interest on that money for the full time ?
    Mr. O. F. Woodruff, for defendant in error.
    An agreement to give further time for the payment of a promissory note than that provided by the terms of the paper itself can not be pleaded in bar of the action brought upon the note within the time limited. Dow v. Tuttle, 4 Mass. 414; Perkins v. Gilman, 8 Pick. 229; Harrison v. Close, 2 Johns. 447; Gibson v. Gibson, 15 Mass. 112; Aloff v. Scrimshaw, 2 Salk. 573; Central Bank v. Willard, 17 Pick. 150; Allen v. Kimball, 23 Pick. 473; Payne v. Weible, 30 Ill. 166.
    Even when a power of attorney is more than one year and one day old, and a judgment by confession in vacation is entered up by virtue of the same, still, if a party seeks to open the same, he must show some equitable grounds for so doing or the court will refuse to interfere. Rising v. Brainard, 36 Ill. 79; Farwell v. Meyer, 36 Ill. 510; Hempstead v. Humphrey, 38 Ill. 90; Stuhl v. Shipp, 44 Ill. 133.
    On a motion to vacate a judgment entered by confession, the question is not whether the judgment shall be vacated for error of law, but whether there exists any equitable reasons for opening the judgment. Gibboney v. Gibboney, 2 Ill. App. 322; Knox v. Winsted Savings Bank, 57 Ill. 330.
    Where a power of attorney to confess judgment on a note authorizes a confession of judgment at any time after the date of the note, a judgment confessed before the maturity of such a note will be valid. Sherman v. Baddely, 11 Ill. 622; Adam v. Arnold, 86 Ill. 185; Towle v. Gonter, 5 Ill. App. 409.
   Welch, J.

There are but two points made for the reversal of the judgment in this case.

1st. The money mentioned in the promissory note upon which the judgment-was rendered was not due or payable at the time the judgment was rendered, therefore the attorney who signed the cognovit had no authority to confess such judgment, 'nor had the clerk any right to enter such judgment on the records of the court, and the same is void.

2d. The warrant of attorney upon which this judgment was rendered was more than a year and a day old at the time the judgment was so confessed, and there was no affidavit hied in the case showing that the defendant was then living and that the debt or any part of it was then due and owing.

It is insisted by counsel for plaintiff in error that the note by its terms did not become due and payable until one year after the date thereof; that áfter it did mature, there was an extension granted for another year by the defendant in error to the plaintiff in error, the plaintiff in error paying the interest on the same for another year in advance; and that whatever may have been the rights or liabilities of these parties under the original contract, entered into between them at the time this money was first loaned and the note and warrant of attorney were executed, that contract was on the 28th day of April, 1884, entirely abrogated so far as the terms and condition of the payment of the money mentioned in the note was concerned. We assent to the proposition that the contract for an extension of time abrogated the original contract between the parties. In case of the Central Bank v. Willard, 17 Pick. 150, it was proved that after a promissory note discounted by the bank had become due, the bank, upon the application of the promisor for a renewal, indorsed on the wrapper of the note the words renewed for three months,” and that the promisor paid the interest in advance; the note was retained by the bank and no new note was given. It was held that the evidence proved an independent agreement which could not bar the action on the note; that at most it would be evidence of a collateral contract. The same rule is announced in Payne v. Weible, 30 Ill. 166. The note and warrant of attorney as said in Sherman v. Baddely, 11 Ill. 622, “ having been executed at the same time and in reference to the same subject-matter, must be construed together and considered as forming one transaction. It amounts to this: “ The debtor is to have a credit of ninety days with the right on the part of the creditor, if he chooses to arrest it, of having a judgment entered up at any moment for the amount of the debt. * * * The creditor says to his debtor, I will take your note, payable in ninety days, if. you will permit me, in case I shall find it necessary for the protection of my interests, to take a judgment previously for the: amount of the debt. The debtor accedes to the proposition by 1 executing and delivering to the creditor a warrant of attorney expressly stipulating that the judgment maybe taken. * * * The defendant has no right to complain of the judgment, for he deliberately authorized it to be entered. The note was due for the purpose of the judgment by the express stipulation of the maker.” The same rule is announced in Adams v. Arnold, 86 Ill. 185. In Towle v. Gonter, 5 Ill. App. 409, under the authorities, siipra, we held that the first point made by counsel for the plaintiff in error is not well taken.

The second point urged by counsel for plaintiff in error is, “that the warrant of attorney upon which this judgment was rendered was more than a year and a day old at the time the judgment was so confessed, and that there was no affidavit filed showing that the defendants were then living, and that the debt or any part of it was then due and owing.” This objection does not go to the. jurisdiction to enter the judgment, and the failure to file such affidavit can only be taken advantage of upon equitable grounds. In Rising v. Brainard, 36 Ill. 79, the court says: “ Before a judgment .will he set aside because an affidavit was not filed showing that the defendant was alive and that the debt was due and unpaid, the party making the application is required to show some equitable reason therefor.” The same rule is announced in Stuhl v. Shipp, 44 Ill. 133. The rule announced in Hinds v. Hopkins, 28 Ill. 344, “ that it wa's necessary that the affidavit should be filed, showing that the defendant is alive and that the debt was due and unpaid when the judgment was entered in vacation, more than a year and?"a day after the power was executed,” was modified as stated in Rising v. Brainard, 36 Ill. 79.

This court, after a careful consideration of all the decided cases of our Supreme Court upon the question of judgment, in vacation as to what papers were jurisdictional and what were not, held that failure to file affidavit that the defendant was alive and that the debt was due and unpaid when the power of attorney was more than a year and a day old, was not jurisdictional, and that advantage could only be taken of it upon equitable grounds, which case was affirmed by the Supreme Court — Stein, Block & Co. v. Good, 16 Ill. App. 516. In Gibboney v. Gibhoney, 2 Ill. App. 322, it was said, this being a judgment by confession by virtue of a warrant of attorney and without actual notice to the appellee, it would be competent for the court upon a proper showing to so far vacate such judgment as to permit appellee to defend against the same, to permit an issue to be made up and tried by a jury as to whether upon the merits of the case he has a defense to the whole or any part of the judgment. But we are not familiar with any rule of law or practice by which such right to defend in such cases will be ordered on motion, unless upon the face of the record, or some showing as a foundation for such motion it shall ap pear, prima facie at least, that the defendant has a defense in whole or in part to the said judgment upon the merits. Same rule announced in Knox v. Winsted Savings Bank, 57 Ill. 330. Applying to this case the rule announced swpra, we are unable to find any showing in the record of any defense to this judgment. Order overruling motion and judgment for costs is affirmed.

Judgment affirmed.


author: Weloh, J.

text:
    Samuel Chapman, Sr., Imp’d Andrew J. Combs v. John A. Stuckey, Sheriff.

      Action on Attachment Bond — Judgment in Attachment Suit, Conclusive of Identity of Action — Amendment.
    In an action upon an attachment bond, it is held: That the allowance by the court of an amendment to the affidavit in the attachment proceedings introducing additional items of indebtedness, is conclusive as to the identity of the action; and that the surety must be considered to have agreed to be liable for any judgment which might be rendered in the attachment proceedings.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Sanford & Casey, for appellant.
    Messrs. Williams, Lawrenoe & Bancroft, for appellee.
   Weloh, J.

This was a suit brought by the appellee against the appellant and Andrew J. Combs upon a bond executed by Andrew J. Combs as principal and the appellant as security, to the appellee. The bond was given under Sec. 15 of the Attachment Act. On the 11th day of January, 1884, Mary Lanfear filed her affidavit for a writ of attachment against Andrew J. Combs, in which she stated that he was indebted to her on account of services performed in the sum of §400, no other indebtedness being stated. A writ of attachment was issued and j}laced in the hands of the appellee, Sheriff of Knox County. On the 12th day of January he levied said writ of attachment upon horses, cattle and other property of said Combs. On the 19 th day of January the bond in this suit was executed and the property levied on was released. The declaration of Mary Lanfear, filed in said attachment suit, con-tamed the common counts in assumpsit, and on the back of her declaration set out an account for work and labor, §400. Also other items of indebtedness not embraced in her original affidavit for attachment. February 13th leave was asked and given her by the court to amend her affidavit in attachment so a,s to contain the other items of indebtedness indorsed on her declaration that were not included in her original affidavit. ° The affidavit was so amended. The trial of that suit resulted in .a verdict and judgment for Mary Lanfear against Andrew J. Combs for the sum of §125.60 and costs of suit.

The appellant filed four pleas to the declaration in this case-issue taken on 1st and 3d. Demurrer to 2d and 4th. Demurrer sustained. Trial and judgment for the amount of the judgment in the attachment case, from which judgment this appeal is taken.

The real and only question which we are called to pass on is, did the court err in sustaining the demurrer to the 2d and 4th pleas? These pleas set forth the cause of action in' the* attachment suit as originally set forth in the affidavit therefor, ‘ and upon which the writ issued, and avers that the said judgment in said declaration mentioned, was not rendered on and for the same cause of action for which said attachment suit was begun and was pending at the time of the execution of the said bond. It is insisted by counsel for appellant that the liability of the appellant on the bond was limited to the cause of action'for which said attachment was begun and was pending at the time of the execution of the bond. We are referred to the rulings of the court in Massachusetts, 7th Gray, 542, 127 Mass. 599, and to Waples on Attachment, as sustaining this view. In some of the States attachment proceedings are held strioti juris. Whether this is the rule in Massachusetts we are not advised. In this State this rule does not apply.

Amendments are freely allowed as in other cases. Secs. 26 and 28, Attachment Act. The amendment in this case was made by leave of the court, which under Sec. 23 of Practice Act “ is conclusive evidence of the identity of the action.” When appellant signed this bond it must be presumed he did so with full knowledge of the law as to amendments in attachment proceedings. And when an amendment was made by leave of court, it was “ conclusive as to the identity of the action.” He must be considered to have agreed to be liable to pay any judgment that might be rendered in said action. In Elmer v. Richards, 25 Ill. 289, 292, it was said: “ It appears to be in same action * * * and the court had jurisdiction of the subject-matter. This is conclusive in a collateral proceeding.” In Marengo v. Edwards, 1 E. D. Smith, 414, it was claimed that the judgment included illegal charges and the court said: “It is too late to object to the amount of the recovery on the original judgment. The remedy was an appeal from the original judgment and not on the trial upon the bond.” In Tilton v. Colfield, 93 U. S. 163, it was said: “ Both in the English and American courts amendments have been allowed in well considered cases, for the purpose of introducing into the suit an independent cause of action.” In case at bar it is not necessary to invoke the doctrine announced in this case. Ita lex seripta est. “ The adjudication in the attachment suit is conclusive evidence of the identity of the action.” The demurrer was properly sustained.

Judgment affirmed.


author: Lacey, J.

text:
    Wm. K. Reed and The Dime Savings Bank v. Lydia A. Cramb and Myra A. Price.

      Collateral Security — Stock of Third Party as Surety — Release by Renewals of Secured Notes — Contract of Surety Strictly Construed.

    1. The contract of a surety is strictly construed in his favor, his liability never being extended beyond the terms of his agreement or at least its manifest import.
    2. Where collaterals of a third party are pledged to secure a note, the payee having notice of the ownership thereof, such pledge only secures the fulfilment of the contract as it then stands.
    3. In the case presented, it is held: Thqt the owner of the collaterals in question can not be regarded as a principal; that the payee of the notes secured had no reason to suppose said collaterals had been exchanged by way of sale for a note for which they were substituted as security for said" notes; and that said collaterals occupied the position of a surety and were released by the renewals of the notes secured.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Bureau County; the Hon. Geoege W. Stipp, Judge, presiding.
    Statement by Lacey, J. This was a bill in equity by appellees against appellants and Henry C. Reed, seeking to foreclose a lien against fifty shares of the capital stock of the Dime Savings Bank, of $100 each, which lien was created byway of pledge by William K. Reed, appellant, to secure the notes of H. C. Reed to the amount of some $3,300, and was substituted in the hands of Levi Kelsey, the father of appellees, who bequeathed the notes to them. The stock in question was placed in Levi Kelsey’s hands in lieu of a $1,000 note and mortgage on one Buehler previously held as collateral security by said Levi Kelsey to secure the note of Henry C. Reed for the said $3,300. The original note on Buehler was placed in Levi Kelsey’s hands by H. C. Reed, without knowledge on the part of the former that the latter was not the true owner of it. This Buehler note was exchanged between Kelsey with William K. Reed in place of the stock mentioned at H. C. Reed’s request, and the stock was sent by William K. Reed to Kelsey by mail. The answer of the appellees separately filed sets up as defense and objects to the foreclosure on the ground that the stock mentioned was never the property of H. C. Reed, but was the property of William K. Reed, which was secured by Kelsey at the request of said H. C. Reed October 16,1874, and was to be held as collateral security in lieu of the said Buehler note and mortgage; that the Buehler note and mortgage was the property of the appellant, William K. Reed, and that it and also the substituted stock was placed in Kelsey’s hands to secure the original principal $16,000 note, of H. C. Reed to said Kelsey, upon the agreement that said H. C. would pay it up and return the said collaterals; that said Levi Kelsey had at the time due notice of' the fact; that about the first of Kovember, 1879, by agreement between the said Kelsey and said H. C. Reed, and without the knowledge and consent of William K. Reed, the original note of $16,000 was delivered up by Kelsey to H. C. Reed, and H. C. Reed gave to said Kelsey his notes in the sum of $3,300, the sum claimed to remain due in renewal, due one year after date, with interest at 8 per cent, per annum, and further, after the death of the said Levi Kelsey and the appointment of George M. Price as his executor, the said renewal notes of $3,300 being on the 13th May, 1881, the said executor with the consent of appellees, one of whom, Mary A. Price, was his wife, then gave further time of payment to said H. 0. Reed without the knowledge and consent of the said William K. Reed and for a valuable consideration, and gave up the said $3,300 to H. O. Reed and secured from him one $1,600, payable to Lydia A. Cramb, due in one year from said date with 8 per cent, interest, and one for like amount with like interest, due in like time to appellee, Mary A. Price, "and one to the said executor for $174.66, due six months after date, and that the last named note was duly indorsed to appellees.
    The Dime Savings Bank filed similar answer. The answers claim that by said renewals under the circumstances the lien on the said stock was released. The court below upon issue being joined and upon hearing, decreed the relief prayed for in the bill. It appears from the evidence that Levi Kelsey renewed the original H. C. Keed note to the amount of $4,600, December 1, 1876, and again the one alleged in the answer, October 21, 1879, and again May 13, 1881, as alleged in the answer to the executor and the appellees; and that the appellants neither consented to nor knew of such extensions. Levi Kelsey died in December, 1879, and H. 0. Keed became insane in 1882, and in 1884 Eugene 0. Bates was appointed conservator. It appears by certain letters that passed between Levi Kelsey and Henry 0. Keed, October 17, 1874, and from Kelsey to William K. Keed, October 23,1884, and from William K. Keed to Levi Kelsey, October 16, 1884, that Levi Kelsey knew at the time of the writing of the letter above of October 16, 1884, when the stock in question was placed in Levi Kelsey’s hands, that 1st, the stock belonged to William K. Keed; 2d, that the Buehler note and mortgage likewise belonged to him because it was sent to him by Kelsey, and the stock received inclosed in a letter which expressly stated that it'belonged to said William K. Keed. From that time he perfectly understood the relationship that William bore to the stock and the debt of H. 0. Keed.
    Messrs. Kendall & Lovejoy, for Wm. K. Keed, appellant.
    If a debtor pledges collateral security of his own for the payment of a note, arid afterward makes payment upon the notes, and gives a renewal note for the balance due upon the original note, the' lien upon the collateral security is not extinguished. Dayton Nat. Bank v. Merchants’ Nat. Bank, 37 Ohio St. 208; Jones v. Pledges, Sec. 541; Pinney v. Kimpton, 46 Vt. 80; Moses v. Trice, 21 Gratt. 556.
    This rule also applies where the debtor pledges securities not his own, and the creditor has no notice of the rights of a third person as security. Pinney v. Kimpton, 46 Vt. 80.
    Where a person pledges his property as collateral security for the performance of a contract of a third person, such property stands in the position of a surety, and any changes in the contract of suretyship which would discharge a surety, discharges the property held as collateral security. Burnap v. Nat. Bank, 96 N. Y. 125; Rowan v. Sharp Rifle Mfg. Co., 33 Conn. 18; White v. Ault, 19 Ga. 551; Barnes v. Mott, 64 N. Y. 397; Christner v. Brown, 16 Iowa, 130; Ryan v. Shawneetown, 14 Ill. 20; Crawford v. Richeson, 101 Ill. 351; Denison v. Gibson, 24 Mich. 187; Smith v. Townsend, 25 N. Y. 479; Gahn v. Niemcewicz, 11 Wend. 312.
    Mr. Allan C. Story, for The Dime Savings Bank, appellant.
    Messrs. P. P. Snyder and Mayo & Widmer, for appellees.
    We insist that the legal status of the substituted collaterals is the same as that for which it was exchanged/ that the rights of the parties became fixed at the time of the transaction, and that W. K. Reed should not now be heard to say this stock was in the position of a mere surety for Henry C. Reed’s notes. Levi Kelsey, at the request of W. K. Reed, delivered to the latter a valuable note and mortgage, a consideration ample to support the transaction, and this was done upon the express offer of W. K. Reed, that the stock was to be held in place of the mortgage. Kelsey thus became a holder of the stock as a pledgee for a valuable consideration passed from him to W. K. Reed. Hpun what principle, then, can it be held that this collateral, or its owner to the extent of its value, was in the position of a mere surety on the note of H. C. Reed then held by Kelsey ?
    If our view of the legal status of this stock in the hands of Levi Kelsey is correct, it follows that the renewal of the notes by Henry C. Reed did not discharge the collateral. Jones on Pledges, Sec. 541; Darst v. Bates, 51 Ill. 439; Worcester Nat. Bank v. Cheeney, 87 Ill. 602; Bond v. Liv. & Lon. Globe Ins. Co., 106 Ill. 654.
    Where collateral has been pledged, not for the payment of any particular note but for the debt of another, the rule as to the release of a surety does not apply. Collins v. Dawley, 4 Col. 138.

      A waiver of any legal or equitable right, at the request of another, is a sufficient consideration to support the promise. Severenz v. Haines, 36 Ill. 357 ; Miller v. Hawker, 66 Ill. 185 ; Buchanan v. International Bank, 78 Ill. 500.
    In all cases a pledge is understood to be a security for the whole and for every part of the debt or engagement, unless it is otherwise stipulated between the parties. Baldwin v. Bradley, 69 Ill. 32; Story on Bailments, Sec. 301.
   Lacey, J.

It can not be doubted if a principal debtor place collateral securities in the hands of his creditor holding his promissory notes that no renewal of the notes or change of the contract between the parties without mentioning the col-laterals would have the effect to release such collaterals, but we understand the law to be as well settled, that in case the principal debtor places collaterals in the hands of his debtors holding his note belonging to a third party who has simply loaned him the property to be pledged as collateral, and the creditor has notice of such fact, that such third party as to such security occupies the position of surety, and any change of the contract for a valuable consideration between the principal debtor and his creditor without the consent of such surety thereby releases the property so pledged from all lien of the creditor. Burnap v. National Bank of Potsdam 96 N. Y. 125; Bank of Albion v. Burns, 46 N. Y. 170; Smith v. Townsend, 25 N. Y. 479; Fitch v. Cotheal, 2 Sandford’s Ch. 32; Brown v. Sharp Rifle Co., 33 Conn. 18; Colebrook on Collateral Securities, Sec. 239.

There might be a case where the owner of property placed it in pledge for the debt of another, with the agreement and understanding that it was to stand good for the debt without reference to what the principals might do by way of changing the agreement, where the property would not be released by reason of any extension or change in the contract between the parties to the original contract. Such seems to be the interpretation put upon the facts of Collins v. Dawley, 4 Col. 138. We may say herd, we do not approve the decision in that case and think it stands alone without support from any other court. It so seems to us in view of the law, that contracts of security are to be construed against the beneficiary, and where collaterals of a third party are in the hands of a pledgee as a security for the principal of a promissory note to the payee with the knowledge of the fact, the proper construction of the contract would be that such pledge only stands good for the fulfilment of the contract as it then stands. Ho other presumption should arise. But it is insisted that the long- delay of appellant in not attempting to reclaim these securities from 1876 to 1879, when Levi Kelsey died, and still longer when H. 0. Beed went insane, ought to be sufficient proof that he had agreed that the stock should stand good for the payment of the debt, regardless of changes in the contract without his consent. We think such fact alone should not have such effect. Appellant is not permitted to testify as to what he knows or what he did during that time, nor is there any proof that, he was aware of the extensions. H. 0. Beed was insolvent, or at least unable to pay his debts, and William K. Beed may have been, and ho doubt was, aware of this fact and was not aware of the release, and allowed the matter to run along. His stock would not bo released unless the time was extended. If he delayed purposely, his rights to reclaim the stock ought not to be defeated for that reason alone.

But it is claimed by appellee that, so far. as Levi Kelsey knew at the time, W. K. Beed deposited the savings bank stock with him in lieu of the Buehler mortgage. H. C. Beed was the owner of the mortgage, and hence the stock must be regarded as being substituted for the mortgage in exactly the same way as he held the mortgage, notwithstanding he knew at the time the stock was placed in his hands by William K. Beed, that William K. was the owner thereof and that as between William K. and H. G. the former was surety for the latter. It is insisted also that William K. received consideration for making the substitute and pledging his stock; therefore he must be regarded as principal as regards his stock and may be treated as such by renewals without his consent without having the effect to release him as to the stock. The appellee’s case hinges upon the correctness of these assumptions.

It appears, as we gather from the evidence, that the Buehler note was the property of William K. Beed, and that in reality he was security to amount of the one thousand dollar mortgage in the first instance, H. C. Beed having borrowed the note of him, though the evidence fails to show that Levi Kelsey had notice of this fact, and had he renewed the note without such knowledge the security would not have been released, but in case he had been notified before extension that William K. was the owner and the note was simply loaned to H. C. Beed and the extension had been made, then he would have as effectually lost his lien on the note as he would if he had known the fact in the first instance, so that the fact of want of knowledge that William K. was the security to the amount of the note could only protect him in making renewals in the absence of such notice, no matter when acquired, before or after the making of the contract, so it was not after the extension.

Addison in his work on contracts lays this down as a rule, that notice coming to the party who takes the security after the contract, compels him to act with reference to the rights of the security in as equitable manner as though he had known it before. The text is as follows: “The doctrine of the discharge of the surety by time given to the principal debtor, by a binding contract, is not confined to cases where the relation of suretyship appears on the face of the original contract between the creditor, the principal and the alleged surety. The equity arises from the relation of the co-obligors, or promisors inter se, and on the knowledge by the creditors of the existence of that relation. It is held to be inequitable in the creditor knowingly to prejudice the rights of the surety, although he may know of the existence of the relation of suretyship only at the time of dealing with the principal debtor, so as to prejudice such rights. But extraneous evidence is not admissible for the purpose of showing that a party who, on the face of the contract, has incurred a primary liability, was only intended to be secondarily liable as surety after the default of another principal contracting party.” Addison on Contracts, 864; Bailey v. Edwards, 4 B. S. 761; 34 L. J. Q. B. 41; Rayner v. Fussey, 28 L. J. Ex. 132; Pooley v. Harridone, 7 Ell. & B. 431; Greenough v. McClelland, 2 El. & El. 424; Davies v. Stainbank, 6 De Gex, M. & G. 696. Apply this doctrine to this case. At the time the substitution was made Levi Kelsey knew that the stock that was being substituted was the property of William K. Reed, and that as between him and H. C. Reed the former was security. He had no reason to suppose that this stock had been exchanged by way of sale for the note. There vas no reason for such supposition. The stock was worth $5,000 and the mortgage $1,000. Then in such case equity would require him to regard the rights of the security and not extend the time of payment without his consent. Such even would have been the case as regards the mortgage upon notice of the suretyship, and much more with regard to the stock.

There could be no difference as far as Levi Kelsey’s remedy for the collection of his debt is concerned, and his right to appropriate this stock to the payment of the notes of H. C. Reed, whether the collateral was put in pledge by the principal of William K. Reed. The only difference would be that he would not have to act in such manner in changing the contract or the time of the payment of the notes as not to injure the surety or obtain the latter’s assent to the change. It is claimed by the appellee that as William K. Reed took up the note from Levi Kelsey, that the latter parted with something valuable, so constituting a valuable consideration moving to William K. Reed, and hence the stock, substituted for the mortgage and note, should be regarded as having been placed there by the principal and might be treated as belonging to a principal. But it may properly be answered that without some valid consideration the holder of the principal notes of H. O. Reed could have no claim on the stock whatever. The notes having been made and delivered by H. C. Reed to Levi Kelsey before the stock was placed in the latter’s hands, without some such consideration there could be no claim on Kelsey’s part to hold the stock in any legal right whatever. “ There must be a consideration for suretyship, otherwise it will be invalid. An agreement to be security for goods already sold to the principal is void.” Addison on Contracts, 853. It would not seem to follow that the mere fact that there was a consideration for the suretyship at the time the Dime Savings Bank stock was delivered to Kelsey, that William K. Reed,, to the extent of the stock, assumed the position of a principal. By way of illustration we may look at the matter in another light. Suppose the payee of a note, having no IDrincipal makers, agrees with one of the principals that if he will procure a surety to sign a new note with him, in consideration that the payee release and discharge the other principal, and the principal so contracting and the surety execute a note for the same amount and due the same time as the old note, and the other principal is released, would not the surety on the new note have all the rights of any other surety? While the release of the principal would be a good consideration to support the promise of the surety, he would none the less be a surety. In principle this is exactly the case at bar, even considering that the Buehler note was not shown to have been the note of William K. Reed, and even it' the note were regarded as the property of H. C. Reed.

Another principle of law in regard to the contract of a surety is that it must be strictly construed in favor of the surety and his liability can not be extended by implication. Reynolds v. Hall, 1 Scam. 35; The People v. Moon, 3 Scam. 123. It must be strictly construed and his liability is never extended beyond the terms of his agreement, or at least its manifest import. In case of doubt the doubt is generally if not universally solved in his favor. Stull et al. v. Hance, 62 Ill. 52.

The courts therefore in all cases construe doubtful contracts of suretyship, etc., in favor of the surety, so as to narrow rather than enlarge his liability.” Addison on Contracts, 856. If then there could be by implication a construction not contained in the words of the letter placing the Dime Savings Bank stock in the hands of Kelsey “in place of ” the note and •mortgage, unfavorable to the surety, it should not be given, but the construction should he favorable to him, if indeed a/ny construction could, under the law we have cited, be unfavorable.

Because the court below committed error in granting the relief prayed for in the bill and decreeing the foreclosure and sale of the stock in the Dime Savings Bank, described in the bill, to satisfy the notes of H. C. Beed, described in the bill, the decree of the court below is reversed and the cause 'remanded to the court below with directions to that court to dismiss the bill.

Decree reversed a/nd cause rema/nded with directions.


text:
    Jerry M. Cox v. Allen M. Pierce.

      Partnership — Bill for an Accounting — Decree, Sustained by Evidence— Waiver of Right to Introduce Oral Testimony on Searing.

    Upon appeal from a decree for the complainant, based on an account of partnership dealings, it is held: That the submission of the cause on the report of the master, bill, answer, replication, exhibits, evidence taken before the master and exceptions, is a waiver of the right of the defendant to introduce oral testimony on the hearing; that such testimony should have been introduced in proof of the exceptions; that the decree is sustained by the evidence; that the defendant was properly charged with the cost of the goods sold during the partnership with the net profit thereon; and that the rate of profit so charged is sustained by the evidence.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Stark County; the Hon. T. M. Shaw, Judge, presiding.
    Statement by Welch, J. This was a bill filed by appellee against appellant for an account of partnership dealings. The bill alleges that on the 23d day of February, 1884, the appellee entered into a contract of partnership with the appellant for the term of one year, for the purpose of carrying on the business of selling drugs and other merchandise usually kept and sold by druggists in Wyoming. That the appellant had a stock of drugs and merchandise on hand which was invoiced at §6,667.50, one-half of which was purchased of him by the appellee, he paying to the appellant in cash the sum of §2,500, and giving his note for the sum of §833.75,- making the sum §3,333.75, one-half the amount of said invoice. The stock of drugs and merchandise was then transferred to the firm, and it commenced business with a capiital of §6,666.50. There is no disagreement as to the terms of the agreement. The appellee charges the appellant with using the money and assets of the firm for his individual use, and without keeping correct accounts thereof upon the books of the firm, etc., all of which appellant denies. Appiellee further charges in his bill that he, on the 29th day of January, 1885, sold his interest in the stock of goods and merchandise then on hand to the appellant for §2,327.86, one-half the amount of inventory of said stock then taken. That it was then agreed that the apipellant should collect the sums then due the firm, pay the firm’s indebtedness and render an account and pay to the appellee whatsoever might be due him; and that the appiellant agreed to surrender to appellee his said notes for §833.75, and jpay the balance due the .appellee in installments as he might require, in good, bankable notes. That the appellant has not paid, but refuses to pay, to the appellee his share of said goods and merchandise, or to make any statement of account, prays for an accounting, etc. Appellant admits he pmrehased the appellee’s interest for the pu’ice stated, and that he was to proceed to collect the sums due the firm and pay its indebtedness, and avers that he faithfully kept and performed his part of the agreement; he denies that he refused to return appellee’s notes to him; he denies that he agreed to pay him in installments, but avers that appellee refused to take his own notes in part payment for said goods, but appellee demanded money or good bankable papier, which appellant refused until the firm debts had been paid; avers that apprellee withdrew large sums of money from said firm and avers that the books were correctly kept and that appellee had access to them at all times. Replication; cause referred to master to take proof and state account between the parties. Master’s report and exceptions thereto. Cause heard and decree for the appellee, from which this appeal is taken.
    * Messrs. M. Shallenberger, B. F. Thompson and James H. Miller, for appellant.
    Mr. Miles A. Fuller, for appellee.
   Welch, J.

On the 23d of April, 1886, both parties came before the court and submitted the cause on report of master, bill, answer, replication, exhibits, evidence taken before the master and exceptions. The exceptions were overruled. Thereupon appellant offered to introduce oral testimony to the court, which the court refused to allow. This ruling of the court is assigned as error. By the 38th section of the chapter on evidence and' under the rule announced in Owens v. Ranstead, 22 Ill. 161, 171, and Maher v. Bull, 39 Ill. 531, 535, appellant had a right, notwithstanding the order that had been made, to close the testimony to introduce oral testimony on the hearing, but he should have done this upon and in proof of his exceptions. Most of his exceptions questioned the correctness of the findings of the master in chancery upon the evidence as taken. His action, in submitting the cause upon the exceptions, etc., was a waiver of the right to introduce other or further testimony. He could not submit his case for decision upon the evidence taken and after the court had found against him on that evidence, afterward ask to open up the case and introduce additional testimony. There must be an end to litigation. He made his election to submit the case on the evidence taken by the master and must now abide by it.

It is, however, insisted that the decree is not sustained by the evidence. The testimony shows that at the time of the, purchase by the appellee the appellant was in the possession of the store, conducting it with the assistance of Law, as clerk? and that the appellee employed Law to act as clerk. Law states that he kept the day-book and ledger accounts of the goods purchased. Appellant kept the cash book. Swem says appellant had the management of the business while he was clerking there, and kept the books of the firm. He also states “ we endeavored to keep a correct account of sales, but the cash in the drawer always overrun the amount of sales shown upon the sales bookthat they did not always foot the cash or sales book and compare with the cash in the drawer. The amount of stock on hand at the formation of the partnership was $6,667.50, amount of goods purchased by the firm $4,-365.35 ; showing total value of goods received by the firm $11,-032.85. The amount of goods on hand at the time of the sale by appellee to the appellant of his interest was $4,773.16, leaving cost price of goods sold, $6,259.69. The amount of goods sold on credit during the existence of the firm, as shown by the books, was $1,678.60. Amount of cash sales was $2,279.49. Here is shown to have been sold goods at cost price of $6,259.69, for which only the sum of $3,958.09 is reported as having been received, showing a loss of the sum of $2,301.60 on the cost of the goods. Law says that the profits on the sale of drugs was 35 per cent, and on liquors 75 per cent., and that no goods were sold at less than cost while he was there. Swem says that profit on sales of drugs was 25 per cent, and on liquors 75 per cent., and says there was some losses on Christmas books, Christmas cards and white lead; the amount of loss on these articles was $250. Appellant says the goods were sold at a loss after deducting expenses. Appellee states that he called appellant’s attention to the fact that he had been using the money of the firm to pay his individual indebtedness, and that the appellant admitted to him that he had used $841.74 of the firm’s money in that way, and he promised to charge himself with it. This amount was subsequently charged to the private account of appellant. The master finds that the books had been carelessly and incorrectly kept, and that in consequence thereof it was impossible to prepare an accurate statement of the partnership assets and liabilities, and state an account between the parties. He finds that appellant had appropriated and used partnership funds to pay his private accounts, and that he had the general supervision and control of the business. From these findings the master’s conclusions are that appellant should be charged with the cost price of the goods sold during the partnership, and with the net profit made thereon. And that the appellee is entitled-to one-half of such gross amount less the amounts which he has received, according to the following statement of account:

Numerous exceptions were filed to this report and account of the master. It is insisted by appellant that the method of computation adopted by the master is erroneous, unjust and contrary to the law and the evidence. The evidence in this case shows that the appellant had the custody of the funds ot the firm and that he kept the cash book. It is further shown by the evidence that no correct account of money received or expended was kept; that the appellant appropriated the funds of the firm in the payment of his private accounts without making any proper charge thereof on the books, and when his attention was called to sums of money thus appropriated, he admitted it and promiséd to charge it, which he subsequently did. Swem says the cash in the drawer always overrun the amount of sales shown upon the sales book. “We did not always foot the cash or sales book and compare with the cash in the drawer.” As shown, there was $6,259.69 worth of goods which went into the drawer, for which only the sum of $3,958.09 is reported as having been received. We hold in the light of this evidence there was no error in the method of computation adopted by the master. Lesswell v. Robbins, 39 Ill. 209, 219; Steere v. Hoagland, 50 Ill. 377, 381.

It is further insisted by appellant that the rate of profit on the goods sold by the firm is excessive, incorrect and contrary to the evidence. We are of the opinion that the rate adopted is sustained by the evidence of Law, Swem and L. Fuller. Appellant had it in his power to have furnished an explanation as to what disposition was made of the goods and of the money received on sales; he contents himself with saying the goods were sold at a loss and that there were no profits; he makes no denial of the statement of Law that he kept the day book and ledger account of the goods sold but that appellant kept the cash book, or of the statement of Sworn that the appellant had the management of the business while he was clerking there and kept the hooks of the firm, and that the cash in the drawer always overrun the amount of sales shown upon the sales hook. It was in his power to furnish a satisfactory explanation as to the disparity shown between the quantity of goods sold and the receipts. This he failed to do, and it having been shown that he appropriated §841.74 of the firm’s money to his private account, making no charge thereof until after it was discovered by appellee, and appellant’s attention called thereto by appellee, we hold that the master was fully justified in the rule adopted by him. The evidence shows that the appellee paid in cash on the purchase §2,500, paid for clerk hire §120, making the sum of §2,620. That he had received in goods, cash, and an order paid by appellant, the sum of §341.09, showing a balance of §2,278.91. The decree in the cause is for the sum of §2,169.16, which is §82.75 less than the money paid in by him when he went into the business. That there should have been a loss in the light of the evidence in the case is extraordinary and required explanation. lío explanation is furnished by the appellant. We are therefore of the opinion that the exceptions to the master’s report were properly overruled; that the findings of the master were supported by the evidence. Finding no error the decree is affirmed.

Decree affirmed.