text:
    Sadie E. Wakenight, Appellee, v. F. D. West, Appellant.

    Gen. No. 6,714.
    1. Corporations, § 144

      —what is a “calamity” within agreement to repurchase stock from purchaser in case of a “calamity." Where an agreement for the sale of corporate stock provides that the seller will repay the purchase. price to the purchaser “in case of a calamity, such as death or severe sickness” in the purchaser’s family, evidence that the purchaser’s daughter had a very severe cold, was overworked and became quite ill for a long time, and that the purchaser herself crushed her hand, while at work and was thereby rendered unable to work or to feed herself and was confined to her bed, is sufficient proof of a calamity within the contemplation of such contract.
    2. Evidence, § 39*—presumption of receipt of mailed letter. A letter properly mailed is presumed to have reached the person to whom it was addressed and to have been received by him in due course of the mail.
    3. Evidence, § 39*—how presumption of receipt of mailed letter rebutted. The presumption that a letter properly mailed reached the addressee in due course of mail may be rebutted by evidence that it was not actually received.
    4. Post office, § 1*—when receipt of letter question for jury. Where the addressee of a letter properly mailed denies that he received it, it is for the jury to say whether, in all the circumstances, such evidence overcomes the presumption that the letter was received in due course of • mail.
    5. Instructions, § 159*—propriety when part of a series. An instruction which, taken in connection with other instructions on the same matter, correctly states the law, is proper even though, standing alone, it states the law incompletely.
    Appeal from the Circuit Court of Ogle county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    W. P. Fearer, for appellant.
    James L. McDowell, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was instituted in the circuit court of Ogle county by the appelleé, Sadie E. Wakenight, against the appellant, IF. D. West, to recover $700 which the appellee paid to the appellant for 12 shares of .stock of the Gernian-American Coffee Company, the basis for a recovery in the suit being a written agreement executed by the appellant to the appellee, which is as.follows: “At any time in case of a calamity, such as death or severe sickness in Mrs. Wakenight’s family, to with six months’ notice give her $700 in cash for this stock. F. D. West.” There was a trial by jury, and a verdict and judgment for the $700 against the appellant, and he prosecutes this appeal.

Several grounds are urged for reversal of the judgment. It is claimed that the evidence fails to show that the appellee suffered a calamity, such as death or severe sickness in her family, and that there is no evidence that the appellant received the six months’ notice which was required to be given by the agreement; also that the court erred in giving one of the instructions.

The evidence shows that at the time of the transaction in question, both appellant and appellee lived at Leaf River in Ogle county. But shortly thereafter the appellant moved to Chicago, and continued to reside there. The calamity which befell appellee occurred in 1910, after she had purchased this stock. She testified that her daughter had a very severe cold, and was overworked, and became quite ill for a longtime during the winter. And that appellee herself had to be in bed, and was not able to feed herself; that during her work, she had her hand crushed—the one that she was using—and therefore was unable to do any work; that she then wrote to the appellant- and informed him of the' distress she was in, and that she would like to have him do as he agreed, and pay her back the money, but received no reply. That she wrote twice without receiving any reply; that the letters she wrote were by her addressed to the appellant, to Chicago, and deposited in the post office at Leaf River properly stamped. The appellee had the home address at Chicago of the appellant at that time; and she testified that these letters which she wrote were addressed to that home address; she also testified that she had liad previous correspondence with the appellant which had been addressed in the same way; and a letter was produced during the trial, which the appellant admitted was in his handwriting, which was a reply to one of the letters that the appellee had written and mailed to him concerning the certificate of stock in question. The appellant, as a witness in his own behalf, denied that he knew of any letters from the appellee; and positively denied that he had received the letters appellee had mailed to him requesting him to pay back the money. We are of opinion that the proof concerning the sickness in appellee’s family, and the crushing of her hand which disabled her from performing any work, was sufficient proof of a calamity such as the contract contemplated should create the obligation on the part of the appellant to take back the stock and pay the $700. It is well settled law that a letter properly mailed is presumed to have reached the person to whom it is addressed, and to have been received by him in due course of the mail. Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 158; Young v. Clapp, 147 Ill. 176; Clark v. People, 224 Ill. 554. And this court so held in Kewanee Nat. Bank v. Ladd, 175 Ill. App. 151, and Haj v. American Bottle Co., 182 Ill. App. 641. It is true, that this presumption may be rebutted by evidence showing a letter mailed was not actually received. And in this case the appellant testified that he did not receive the letter; and if the jury had believed .the appellant, the presumption of law would have been rebutted; but it is evident that the jury did not believe the appellant, and it was the province of the jury not to do so, if they thought his testimony in that regard unworthy of belief. In determining this matter, undoubtedly the jury took into consideration the circumstances, which had a bearing upon the question of his veracity, such as his interest in the result of the case, his demeanor and appearance, and conduct as a witness, as well as the fact that he denied all knowledge of having received any letters from the appellee, when it clearly appeared in evidence later that he had received and had replied to at least one letter, which had been mailed to him prior to the letters in question. If he did receive the letters he had more than sis months ’ notice prior to the commencement of the suit of appellee’s claim.

The instruction which appellant complains of merely contains a statement of the law concerning- the presumption that follows from the mailing* of a letter properly addressed and stamped in the government post office. It should be considered, however, in connection with instructions 1, 3 and 4, which were given for the appellant, especially instruction 4, in which the jury were told that even though the appellee wrote a letter or letters to the appellant informing him of severe sickness in her family, and asked him to repay her the $700, that this would not entitle her to recover, unless the jury further believed that the defendant received such letter or letters. This put before the jury directly the determination of the question whether the appellant had actually received appellee’s letters containing the notice, and the jury evidently reached the conclusion that he did; and we cannot say that the jury were not warranted in so finding.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    John L. Foran, Complainant, v. Henry K. Shank et al., Defendants. Walter George, Cross Complainant, Appellee, v. Thurston E. Walters, Cross Defendant, Appellant.
    Gen. No. 6,718.
    1. Equity, § 135

      —when hill not defective as stating mere conclusions. Allegations in a cross-hill for the foreclosure of a mortgage which set up as the basis of the liability of the defendant therein the execution of a deed to him as grantee of the premises at a specified date subsequent to the date of the mortgage, the recording of the deed, the book and page of the record and that by said deed he had assumed and agreed to pay the mortgage indebtedness, are not subject to the objection that they merely state conclusions of the pleader.
    2. Mobtgages, § 489*—when cross-hill on foreclosure against purchaser assuming mortgage demurrable. A cross-bill to foreclose a mortgage which alleges that the defendant assumed and agreed to pay the mortgage indebtedness by virtue of a deed to the premises executed to him as grantee subsequent to the date of the mortgage, but which fails to allege that he accepted such deed with knowledge of the clause making him liable to such mortgage or went into possession of such premises having knowledge of such clause, is demurrable.
    3. Equity, § 292*—when grounds for demurrer to cross-hill waived. Where a cross-bill to foreclose a mortgage alleges 'that defendant therein assumed and agreed to pay the mortgage indebtedness by virtue of a clause contained in a deed to the premises executed to him as grantee subsequent to the date of the mortgage, but does not allege that he accepted the deed or went into possession with knowledge of such clause, and he does not demur to the cross-bill on such ground, but files an answer averring that he had no knowledge of the execution or recording of the deed and denying that he accepted it with knowledge of the assumption clause and, on the trial, evidence is heard on these controverted issues of fact raised by the answer but not covered by the averments of the cross-bill, by filing such answer and thus going to trial he waives right after the trial to question the sufficiency of the allegation of the cross-bill which might otherwise have been made the subject of a demurrer.

      4. Equity, § 218

      —what objections should be taken by demurrer. Where the allegations of a bill are informal or insufficient, objections should be taken by demurrer in the court below, so that complainant may have an opportunity to amend.
    5. Appeal and hkbob, § 422*—what objections to bill waived by failure to object. Where a defendant, instead of demurring, joins issue on a hill which is informal or insufficient and goes to trial on the issues, he cannot be heard for the first time in the Appellate Court to raise the insufficiency or informality of the bill.
    6. Equity, § 172*—what is effect of answer. By filing an answer defendant submits to the court his case, which is made by all the pleadings. »
    Appeal from the Circuit Court of Kankakee county; the Hon. Abthub W. De Selsi, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Rehearing denied April 7, 1920.
    Charles H. Darling and John A. Mayhew, for appellant.
    Henry F. Ruel, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

John L. Foran filed a bill in equity in the circuit court of Kankakee county to quiet title, reform deeds and to foreclose the lien of a mortgage of which ho was the holder, on the premises described in the bill, and made the appellee, Walter George, who held a second mortgage against the same premises, and the appellant, Thurston E. Walters, Henry K. Shank, and other parties interested, defendants in the bill. After-wards the bill was amended, and the appellant, and the appellee and other defendants, filed their answers thereto. Thereupon the appellee, as the holder of the junior mortgage, filed a cross-bill for the foreclosure of his mortgage. The cross-bill was filed also for the purpose of establishing a personal liability on the part of the appellant to pay the mortgage indebtedness. The appellant had purchased the mortgaged premises subsequent to the date of the mortgage in question from H. M. Fiddler and Josephine Fiddler, his wife, who conveyed the same to him by warranty deed. The allegation in the cross-bill in reference to the matter of the personal liability of the appellant is, “that Thurston E. Walters, grantee named in the warranty deed of the premises in question from H. M. Fiddler and Josephine Fiddler, his wife, dated August 24,1910, and recorded August 27, 1910, in Book 288, page 173, in the recorder’s office of said county of Kankakee, assumed and agreed to pay said indebtedness, so secured by said note and mortgage, and thereby became personally liable for the payment of said note and mortgage according to their terms, and is now personally liable therefor.” The appellant filed an answer to the cross-bill, denying that he assumed and agreed to pay said mortgage indebtedness, and denying that he was personally liable therefor, and alleging in that regard, among other things, that he had no knowledge of the deed of said H. M. Fiddler and Josephine Ehddler to him, which was executed on the 24-th day of August, 1910, and that'the same was made "without his knowledge or consent; that he did not learn or become aware of the fact that said deed had been executed as aforesaid and recorded until after the filing of the bill of complaint in this cause. He also denied that he took, or received, or held any real estate under and by virtue of said deed, alleged to have been made on the 24th day of August, 1910, but that he took, received and held the possession of the real estate described therein, under and by virtue of another deed made and executed and delivered by said H. M. Fiddler and Josephine Fiddler on the 15th day of August, 1910, which deed did not contain any agreement by which he assumed said mortgage indebtedness; also alleging that the consideration mentioned in the deed of August 24 was fictitious; and that he paid nothing for the making of said deed; and that no consideration passed from him to the grantors; also alleging that the deed of the 24th of August was made for the sole and only purpose by the grantors to correct an error in the description of the real estate conveyed by the deed of the 15th day of August; also alleging that he never accepted, received or consented to the execution of said deed of August 24; and never received said deed from said grantors; and never authorized or employed any agent or attorney to accept or receive the same for him, or in his behalf. The court heard the evidence on the issues raised by the averments of the cross-bill, and the matters alleged in the answers. The proof shows that H. M. Fiddler, who had become the owner of the premises in question by conveyance from George W. 'Kearns and Ada Kearns, his wife, sold and conveyed the same to the appellant; that the appellant himself had the deeds of August 15th and of August 24,1910, prepared, and that they were signed by the Fiddlers at his request ; that he had caused the second deed of August 24 to be made in order to correct an error in the description in the first deed; that the appellant went into possession of the land under the deeds in question; and that he had paid the interest on appellee’s mortgage, which he had assumed and agreed to pay in the deed of August 24, during the time he held possession of the land. The decree which was rendered finds the amount due the complainant Foran under his prior mortgage, and finds that there was due to the appellee under his mortgage the sum of $593; also $40 solicitor’s fees, making a total of $633, and that the appellee was entitled to foreclosure for said amount; and directs a sale of the premises by the master in chancery to pay the mortgage indebtedness of the complainant, and of the appellee; and finds that in case any deficiency should arise from said sale, on the amount due the crdss complainant, that the appellant is personally liable therefor. The master’s report of the sale shows that the premises were sold in accordance with the provisions of the decree, and that there was a deficiency in the amount found due the appellee of $636.96, and a deficiency decree was' thereupon entered for that amount against the appellant. The appellant objected to the entry of the deficiency decree, and prosecutes now this appeal therefrom.

The only question raised on appeal is concerning legality of the deficiency decree; and it is contended that it was improperly rendered because the allegations in the cross-bill heretofore set out were not statements of facts, which shows that the appellant was personally liable for said mortgage indebtedness, but were merely the conclusions of the pleader, and were therefore wholly insufficient as the basis of a deficiency decree. It is apparent, however, that the allegations in the cross-bill referred to are not the only basis for the deficiency decree; nor can we agree with the contention of counsel, that the allegations of the cross-bill in reference to the appellant’s personal liability are merely conclusions. The allegations contain statements of a number of facts, upon which the personal liability of the appellant is based, namely, the execution of the deed of August 24, 1910, the recording of the same, and the book and page where the same were recorded, and that by said deed he had assumed and agreed to pay said mortgage indebtedness. It is true there is no statement of one necessary element to legally establish appellant’s liability, namely, that the appellant accepted said deed with a knowledge of the clause in question or went into possession of the land conveyed under the deed having knowledge of said clause; or of any facts from which knowledge and acceptance might be reasonably inferred. This feature of the cross-bill in that respect, at least, was subject to demurrer. And if appellant desired to raise the question of the sufficiency of the allegations to establish - a personal liability on his part, he should have demurred to the cross-bill on that ground. The appellant, however, chose not to do so, but filed his answer, which, by averring that he had no knowledge of the execution or recording of the deed in question and denying that he had accepted the same with a knowledge that it contained the assumption clause, raised issues of fact concerning the identical matters which were not covered by the averments of the bill; and these matters became thereby controverted questions in the case; and the court heard the evidence concerning these controverted questions. By filing this answer, and going to trial under these' circumstances, the appellant waived his right after the trial to question the sufficiency of the allegation of the cross-bill, which might otherwise have been made the subject of a demurrer, had he chosen to take that course. Kesner v. Miesch, 204 Ill. 320. The proof heard was practically conclusive against the appellant upon all the issues raised by his answer to the bill, and all the elements necessary to establish his personal liability were established. The law is well settled that where the allegations of a bill are informal or insufficient, objections should be taken by demurrer in the court below, so that the complainant in the bill may have an opportunity to amend the bill and make it sufficient. Dupuy v. Gibson, 36 Ill. 197. And where a defendant instead of demurring joins issue on a bill that is informal or insufficient, and goes to trial on the issues, he cannot be heard for the first time in this court to question the insufficiency or informality of the allegations of the bill. Miles v. Miles, 101 Ill. App. 406; Kuchenbeiser v. Beckert, 41 Ill. 172; McCloskey v. McCormick, 44 Ill. 336; Gage v. Webb, 141 Ill. 533; Campbell v. Potter, 147 Ill. 576.

By filing an answer,, the appellant submitted his case to the court, which was made by all the pleadings. Kaufman v. Wiener, 169 Ill. 596; Highway Com’rs of Town of Harrison v. Sweet, 77 Ill. App. 641; Kesner v. Miesch, supra.

For the reasons stated, we are of opinion that the deficiency decree was proper and the decree is affirmed.

Decree affirmed.


text:
    R. Rasmussen et al., Appellees, v. L. W. Nelson, Appellant.
    Gen. No. 6,738.
    1. Customs and usages, § 16

      —when admissible as to matters pn which contract is silent. In an action to recover the contract price for painting a house, where the contract is silent as to the color, defendant should he allowed to introduce evidence to show that there is a universal custom among house painters and decorators to allow the owner of the house to select and specify the color and to ascertain from him the desired color before doing the work.
    2. Customs and usages, § 22*—presumption as to contracting in reference to. Persons contracting for the painting of a house are presumed to have contracted with reference to an existing general usage or custom concerning the selection of the color by the owner.
    3. Instbuctions, § 63*—assumption of controverted facts. It is error to assume in" an instruction facts which are in controversy and are material in determining the issues involved.
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed March 9, 1920.
    E. A. Simmons, for appellant.
    P. A. Gibbons, for appellees.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case the appellees, R. Rasmussen and E. S. Bean, copartners, commenced suit in the circuit court of Livingston county against the appellant, L. W. Nelson, to recover a balance claimed by them on the contract price for painting a house belonging to the appellant. The price agreed upon was $85, but it was understood between the parties at the time of the making of the contract that $30 which the appellee, Rasmussen, owed to the appellant for a tin roof, purchased from the appellant, should be applied on the contract price. Before the trial the appellant also tendered $14 as the balance due the appellees. There was a trial by jury, and a verdict finding the issues in favor of the appellees, and finding the tender to be insufficient, and assessing plaintiff’s damages at $41 over and above the $14 tendered. The verdict was for the full amount of the contract price, less the credit of $30, and the amount of the tender. Appellant made motion for new trial, which was overruled by the court, and judgment was rendered on the verdict, from which an appeal is prosecuted.

Several reasons are urged by the appellant for reversal of the judgment. The controversy in this case involves the question of the color in which the house was to be painted, and whether or not the parties had an understanding in reference to that matter. During the course of the trial the appellant offered to prove by a witness who was testifying, that “there wa,s a universal custom among painters and people in that business, and who made contracts for painting and decorating houses, -to allow the patron or owner to choose the color and designate it, and to specify, and to follow the direction given in doing the work”; he also offered to prove by the witness “a universal custom that the painter or the one doing the work ascertains from the owner or patron, first what the color shall be before fining the work.” An objection was made to this proof and sustained. We are of opinion that the proof offered should have been admitted. The contract between the parties for the painting of the house was silent on the matter of color of the painting*, and if there was a general custom prevailing concerning the selection of the color or the manner of determining* the color, the parties entering into the contract are presumed to have contracted with reference to such existing general usage or custom. Steidtmann v. Joseph Lay Co., 234 Ill. 84; Collins Ice-Cream Co. v. Stephens, 189 Ill. 200; Chisholm v. Beaman Machine Co., 160 Ill. 101; Leavitt v. Kennicott, 157 Ill. 235. Inasmuch as there was a controversy in the case between the parties, as to whether the color had in fact been selected, the evidence of a general" custom in reference to that matter might have thrown some light upon that question ; and it might also have assisted the jury in determining the proper inferences to be drawn, from what the parties said and did about the matter. Aside from any custom, however, the appellant had the undoubted right to select the color for the painting of the house.

It is also contended that the court erred in the giving of the following instruction:

“The court instructs the jury that if you believe from a preponderance of the evidence that the defendant, Nelson, employed the plaintiff to paint his house and that after the plaintiff had put on the first coat of paint, there was some talk about the color of the second coat, and that the defendant said he would like to have the house painted chocolate color with white trimmings, and that the plaintiff thereupon told the defendant that chocolate color would make the house look too short, and that thereupon, the defendant said, ‘I guess you are right’; and if you further believe that the defendant abandoned the idea of having the house painted in chocolate and white, and adopted the plaintiff’s suggestion to paint the house white, and the plaintiff so painted it, then under such state of proof, you should find for the plaintiff, and in the sum claimed by Mm.” The objection made to the instruction is that it assumes a fact not in evidence, namely, that the appellee, Rasmussen, made the suggestion to the appellant that the house be painted white. -The evidence of the appellee, Rasmussen, concerning the selection of the color for the final coat of paint for the house is as follows: “I told him (the appellant) we would be back the first of next week to fimsh up, and he said ‘all right’; then he said sometMng about painting the house chocolate color, and white trimming, and I told him ‘I "wish you had told me that before, because, we could have painted the first coat with chocolate color with white trimming, it would have covered better.’ I said, ‘If you want that, however, paint the house with chocolate and white, but it won’t look good, you can’t make a good job.’ I said, ‘another thing, the kind of a house you got is too short and narrow with the side of chocolate and trim the window casings and doors with wMte, because the house will look shorter than it really is.’ He said, ‘I guess you are about right,’ and he walked away from me, and I didn’t see him again until we got the house finished up.”

It does not appear from this evidence that the appellee made a suggestion to the appellant “to paint the house white”; and it is apparent therefore the instruction referred to does assume a fact not shown by the evidence; and the matter of the selection of color was a material one in the case. WMle the evidence may be reasonably construed to the effect that the appellant gave up the idea of having the house painted in chocolate color with white trimmings, it does not show that he selected any other color to take its place. It is error to assume facts in an instruction which are in controversy, and wMch are material in determining the issues in the case. Peoria & P. U. Ry. Co. v. Tamplin, 156 Ill. 285; Smith v. Bellrose, 200 Ill. App. 368; Adams v. Elgin & Belvidere Elec. Co., 204 Ill. App. 1.

For the reasons stated the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.


author: Mr. Justice Dibell

text:
    Frank W. Ravlin, v. Chicago, Aurora & De Kalb Railroad Company et al. Harvey Gunsul, Receiver, et al., Defendants in Error, v. Frank W. Cherry, Plaintiff in Error.
    Gen. No. 6,593.
    1. Receivers, § 47

      —not permitted to profit from transactions. A receiver will not be permitted to derive personal profit out' of his office other, than the compensation which the court may allow him, and may not traffic in his own behalf in the property committed to him by virtue of his office.
    '2. Receivers, § 20*—what is nature of office. A receiver is in legal effect a trustee.
    3. Appeal and error, § 420*—necessity for objection to petition in lower court. The insufficiency of a petition on the ground that it alleges conclusions and not facts should be raised in the lower court.
    4. Receivers, § 47*—sufficiency of pleading in action to recover secret profits.. In a suit against one to recover secret profits alleged to have been made by him in dealing with the subject of the receivership while he was receiver, it is not important that the methods employed by him aré not termed a fraud in the pleadings.
    5. Appeal and error, § 1160*—limitation on rehearing to points urged in original brief. Defendant, in a suit to recover from jym profits alleged to have been made by him through secret sales, made during the réceivership, of stocks and bonds of a company for which he was receiver, is confined, on appeal from a decree against him and on a rehearing in the Appellate Court, to questioning such decree on the grounds assigned in his original brief, and cannot secure the investigation for the first time on such rehearing of proof for and against the items passed upon by the lower court in ascertaining the amount of his profit.
    6. Appeal and error, § 1160

      —what cannot he raised on petition for rehearing. On a rehearing, points not presented in the argument of the cause will not be considered, and points not made in the original brief are waived and cannot be raised for the first time on the petition for rehearing.
    7. Receivers, § 47*—when evidence sustains recovery against receiver for secret profits. On a bill against one to recover secret profits alleged to have been made by him through secret sales of stocks and bonds of a company of which he was receiver, evidence considered and held to show that the transactions involved were consummated during the receivership and to support a decree against defendant for the amount found to have been received by him as profit.
    8. Receivers, § 47*—when payment on unsecured debt to prejudice of secured creditors not allowed. A payment made by a receiver on an old and unsecured debt of the company without any order of the court and to the prejudice of the secured creditors should not be allowed.
    9. Receivers, § 49*—when not required to refund compensation paid attorney. A receiver will not be required to refund to his successor, compensation paid an attorney employed lay him under authority of the court, such attorney’s estimate of the value of his services being uncontradicted, merely because as to one of the matters submitted to him such attorney adopted an erroneous view of the law.
    10. Receivers, § 50*—when entitled to compensation although required to refund secret profits. Even though a decree be entered against a receiver requiring him to refund secret profits made by him in selling stocks and bonds of the company during the receivership, he will not be denied ordinary and just compensation for his services as receiver, it appearing that he was diligent in the performance of his duties and did not credit himself with excessive compensation.
    11. Interest, § 47*—time from which computed against receiver on secret profits. A decree finding against a receiver secret profits made by him through the sale of stocks and bonds of the company during his receivership should bear interest on the amount of such profit from the date of the closing of the transaction in which they were acquired.
    12. Receivers, § 47*—status of receiver where payment charged hack against him. Where a decree charges back to a receiver an amount paid by him without authority of the court on an old and unsecured claim against the company, he should be charged interest on such payment from the. date it was made to the date of the decree and should be awarded, as to such amount, the position of an unsecured creditor with a right to interest thereon from the date the payment was made.
    Error to the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed March 9, 1920.
    John A. Russell, for plaintiff in error.
    John K. Newhall, for defendant in error Harvey Gunsul.
    Peffers & Wing, for defendants in error Enos Doan and George A. May.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

The Chicago, Aurora & De Kalb Bailroad Company (hereinafter called the company) operates an interurban road. In 1913, J. H. Bliss and W. S. Kirby were appointed receivers of the company in this cause and served until July 10, 1916, when Prank W. Cherry became receiver. At the September term, 1917, of the circuit -court of Kane county, Cherry resigned. His final report ivas approved and his resignation accepted. Before the end of that term, on motion of Enos Doan and George E. May, creditors of the company, the order approving said report was vacated. Thereafter Doan and May, by leave of court, filed an intervening petition, attacking various acts of Cherry as receiver, and especially charging that while receiver he had made large profits from secret sales of the stock and bonds of said company. About that time the holder of certain bonds of the company filed a bill to foreclose the trust deed securing said bonds, and in that cause Harvey Gunsul was appointed receiver of the company. Thereafter, Gunsul, as receiver, by leave of court filed in this cause an intervening petition attacking the conduct of Cherry as receiver, which petition was similar to that of Doan and May. Cherry answered these petitions and they were heard together, and there was a decree directing Cherry to pay to Gunsul as receiver $47,066.71 as profit which the court found Cherry, while receiver, had made on the sale of certain securities of the company, and $3,000 which the court found Cherry had paid a certain bank without authority of the court, and $2,350 which the court found he had paid his attorney without authority of the court. Cherry sued out a writ of error to review said decree. Gunsul assigned cross-errors, in which he insisted that the court should have required Cherry to repay all compensation for his services as receiver for which he had been credited in his report; and should have charged Cherry with interest at 5 per cent per annum upon said profits and upon the $3,000 paid the bank. We affirmed the main portion of the decree, but reversed it upon some minor matters. , There was one error in the opinion we then filed in reciting an important date, but the other parts of the opinion showed it was merely a clerical error' and the court did not mistake the fact but intended to recite the true date. Cherry petitioned for a rehearing and so earnestly contended that a great injustice had been done him that we granted a rehearing.

On February 13, 1917, in a suit brought against Cherry as receiver, certain bonds of the company were sold by the master in chancery (which office Gunsul then held), which shortly thereafter were turned over to a bank for one H. H. Evans. It is claimed by the petitioners that said proceeding was instituted at the expense of Cherry and by his procurement while he was receiver; that the object was to enable him to fulfil a contract he individually had with Evans; that he concealed from the court that he had such contract with Evans and had a written agreement with Evans by which Evans was to pay much more for said bonds than they brought at said sale; that thereby while receiver and because of his concealment of the true facts from the court, Cherry made a large profit for himself; and that he must in equity surrender that profit. Cherry contends that he completed his contract with Evans and earned and obtained all his profits on or before June 28, 1916, before he became receiver, and that he did nothing afterwards inconsistent with his duty as receiver, and that whatever he did afterwards in the matter was at the request of Evans and for the accommodation of Evans, and without profit to himself, and without his having any interest therein.

The law is well settled that a receiver will not be permitted to derive personal profit out of his office, other than the compensation which the court may allow him, and that he may not traffic in his own behalf in the property committed to him by virtue of his office. Michoud v. Girod, 4 How. (U. S.) 503; Magruder v. Drury, 235 U. S. 106; Baker v. Schofield, 243 U. S. 114; 34 Cyc. 254, 255. A receiver is in legal effect a trustee. The above rule was announced as to trustees in Farwell v. Pyle-Nat. Elec. Headlight Co., 289 Ill. 157, and in cases there cited.

There are between 80 and 100 exhibits in this case, some of them containing lengthy and involved financial propositions, acceptances thereof, modifications, trust agreements, financial statements, correspondence, decrees and orders in another cause, and the like. A full statement of all the transactions in the stocks and bonds of this company, and of all the schemes and attempted schemes concerning it in which the parties have been involved, with a full explanation of the reasons for every step, would fill a volume. We deem it sufficient to give a mere outline of the transactions.

Henry H. Evans of Aurora,, a capitalist, had ob.tained charters for two interurban roads. He conceived the plan of buying a controlling interest in the stocks and bonds of this company and uniting the property of this company with his other interurban schemes. The company had a capital stock of $950,000. It had issued $200,000 of first mortgage bonds, secured by a first trust deed, and thereafter had executed a second trust deed, securing $750,000 of what it called general mortgage bonds. Only a portion of the latter had been issued, and $50,000 of the first mortgage bonds had been taken up and reissued. The par value óf each share of capital stock and of each bond was $100. It seems that frequently a certificate for one or_ two shares of stock was issued with one bond, when the latter was sold, in other words, the bonds had been used as a vehicle for the s.ale of the stock. It was a controlling interest in the capital stock and in the outstanding mortgage bonds of this company which Evans wished to secure. Cherry had had experience in handling such properties. Evans orally offered to Cherry that he would pay Cherry certain prices for enough of said stocks and bonds to secure control. Evans made it a condition with Cherry that he (Evans) was not to be known in the transaction. Cherry made investigations to see whether those securities could be obtained. He found that theretofore the company had given various promissory notes to various banks, and that each of said notes had been indorsed by the seven directors of the company, who were George, Richmond, Bliss, Erlenborn, Loser, Klein and Ravlin; that after-wards, said banks demanded further security, said directors had deposited with said bank, as collateral security, a large number, of bonds of the company, some of them being first mortgage bonds and others second- or general mortgage bonds, and that after-wards, the banks demanding payment, said notes had been taken up by said indorsers with their respective collateral securities, and placed in the hands of W. C. Estee under a trust agreement by which he was to hold said securities for the benefit of said seven directors, each of whom had an equitable lien upon one-seventh thereof, and said trustee gave to each of said seven directors a separate paper, evidencing the trust. Each of said directors also owned a large amount of the capital stock of the company, said to have aggregated $387,600 at par value. Thereupon Cherry sought to buy said bonds and stock. He found that he could not at that time deal with George or Erlenbom.

Under date of June 6, 1916, Cherry made a written proposition to the other five of the seven directors to buy their interests in the Estee agreement and in the collateral bonds and in the capital stock, and to pay therefor certain sums within certain times thereafter. Said five directors accepted the proposition. This proposition and acceptance will be called the Bliss-Cherry contract. On June 12,1916, Evans and Cherry made a written contract concerning those securities, by which Cherry was to obtain said controlling* interest and sell and assign the same to Evans, and also obtain the remaining two-sevenths interest in the Estee agreement and the securities^therein mentioned, and in the capital stock owned by George and Erlenborn, and deliver these to Evans as soon as he received them, and Evans was to pay certain sums therefor. This is called the Evans-Cherry contract. On June 15, 1916, said five directors made a written supplemental contract with Cherry, by which Cherry might immediately upon receipt of said securities proceed to foreclose upon them, and that, if the sale of said securities under such foreclosure was delayed by reason of any injunction, the time should be extended until after said injunction was dissolved, but not more than 6 months from the date of that supplemental agreement; and meanwhile Cherry was to have an irrevocable power of attorney to vote said capital stock. On June 27 and 28, 1916, Evans and Cherry had certain dealings with relation to this stock and these bonds.

In order to determine whether Cherry had completed his contract with Evans before the former be came receiver, as he here claims, it is proper to examine further the Bliss-Cherry contract and its supplement and the Evans-Cherry contract. The Bliss-Cherry contract and supplement required that when Cherry had done certain things he should take title to the bonds and stock they were to assign him, and all the officers and directors of the company should resign and Cherry should have an irrevocable power of attorney authorizing him, in the name of Bliss and the others who had a lien on said bonds, but without expense to them, to foreclose the pledge of said bonds, and that upon such foreclosure the interests acquired at said foreclosure should immediately pass to Cherry and if, by reason of any injunction, control by Cherry of the foreclosure of such securities should be delayed, certain payments to be made by him should be extended. The proposition by Cherry to Evans, of date May 5, 1916, which preceded the Evans-Cherry contract, provided that, if accepted, certain things which Evans was to deliver to Cherry should be deposited in a bank for Cherry but not delivered to Cherry until the bonds which Cherry was to obtain for Evans were either delivered to Evans or placed in said bank for him, aiid that the stock and bonds which Cherry was to obtain for Evans should carry with them a majority of the outstanding stock, so that the control of the company should rest in said stock and the same should be voted by Evans for the mutual interest of both. The Evans-Cherry contract provided that Cherry would use his best endeavors to consummate the purchase of said bonds, stock and securities from Bliss, and to acquire the remaining two-seventh interest in the Estee agreement and securities therein mentioned, and that he would deliver said bonds, stock and securities to Evans as soon after they were received by Cherry as Evans should require the same to be done. Cherry was appointed receiver on July 10, 1916. *A few days later a meeting of the company was held at which all the officers and directors resigned, pursuant to said Bliss-Cherry agreement, and Cherry had himself and his attorney and others selected by him elected directors, and they elected Cherry president. Cherry therefore immediately upon becoming receiver obtained control of the board of directors and of the corporation. He did not need this control merely in order to perform his duties as receiver. Obviously he was seeking to obtain that control which he had contracted to deliver to Evans in the end. The main thing not accomplished when he became receiver which the Evans-Cherry contract required of him was to obtain the bonds pledged to the seven old directors as described in the Estee agreement. Therefore the act of Cherry in obtaining control of the board of directors and of the officers was manifestly further performance by him of the Evans-Cherry agreement, and was placing himself in a position where he could control the corporation itself so far as the proposed foreclosure was concerned. It was evidently expected that Cherry could immediately obtain a foreclosure on said securities. Under date of October 4, 1916, Cherry wrote Watson, cashier of the First National Bank, Aurora, depositing bertain bonds to take the place temporarily of some of these bonds on which he was to foreclose, and explaining that J. C. Murphy had instituted proceedings to prevent the distribution of the securities covered by the Estee agreement, and asking Watson not to distribute the securities in his possession unless convinced that all parties had complied with the contract. Murphy, a lawyer, had filed a claim against the company for $100,000 for legal services, and this was being contested. Murphy learned of this attempted sale of the securities covered by the Estee agreement and filed some pleading to prevent the consummation of the sale, and the foreclosure upon these securities was delayed thereby. Under date of August 16, 1916, Cherry wrote Evans stating what bonds it was contemplated that Evans should receive under their agreement, showing that Evans had not yet received them, and then he stated that this “is based on our ability to acquire all the bonds called for in our agreement.” This letter, written more than a month after Cherry was appointed receiver, must mean that it was not yet ascertained that Cherry could perform his contract with Evans, and it is plain from all the evidence that he meant that it was not yét determined whether Cherry could obtain the securities named in the Estee agreement. Under date of December 29, 19.16, Cairo A. "Trimble, who was not only attorney for Cherry as receiver but was also Cherry’s personal attorney, wrote Cherry at much length, discussing the proposition of settling with Murphy, obviously with the purpose of removing that obstacle to obtaining a foreclosure of the securities held under the Estee agreement. Under date of January 29, 1917, a settlement -with Murphy was effected and the obstacle to a foreclosure was removed. On February 2, 1917, John Faissler, an attorney, secured possession of the five separate Estee agreements held by Bliss, Bichmond, Klein, Loser and Bavlin, covered by the Bliss-Cherry agreement, and also obtained the consent of George and Erlenborn to allow their names to be used in the foreclosure proceedings. On February 6, 1917, Watson (cashier of the First National Bank of Aurora) wrote Cherry that Evans had that day left with Watson a note for $20,000 “for your use in connection with the purchase of the securities of the De Kalb road that were deposited with W. C. Estee.” On the same day Faissler filed a bill, in the name of the seven persons above named, to foreclose and sell the bonds described in the Estee agreement. It is claimed and denied that Faissler was acting for Cherry. Several of the beneficiaries in the Estee agreement testified that Faissler told them that he was acting for Cherry. That evidence may have been incompetent. They also testified that they did not hire Faissler and did not pay any of the expense of that foreclosure, and that they supposed it was being done by Cherry pursuant to his agreement with them. Cherry did advance the costs of that proceeding and the same was repaid to him by the master, and Cherry’s receipt therefor is in evidence.

On the same day that the bill was filed, Trimble filed the answer of Cherry and of the company. The proof seems to show that, as originally drafted, that answer originally contained the name of Trimble as a complainant, and that that was erased. There is in evidence a form of a decree in that suit, prepared by some one, in which Trimble was named as a complainant. This was not signed by the trial judge. These papers which were not used seem to have been prepared for the purpose of paying from the foreclosure of these securities not only the sums due the seven old directors under the Estee agreement, but also a certain $10,000 note then held by Trimble and hereinafter described, which including of said $10,000 note Faissler prevented. The association of Trimble with the preparation of the bill and of the decree aids in the conclusion that Cherry was in fact causing said foreclosure suit to be carried through at his own expense. Cherry testified that on the day of the sale he paid the master $200, and Faissler $75. This was only in line with what he agreed in the Bliss-Cherry contract. There are in evidence three letters written by Cherry to Edwin A. Bayley of Boston, Massachusetts, dated respectively April 18, April 26 and May 1, 1917. They are too long to be all inserted here. In the one of April 18, he tells Bayley about the Bliss-Cherry contract, and that when he made that contract he expected to take over the $50,000 of first mortgage bonds himself, and make final payment with them, and tells how the persons with whom he had that contract prevented his securing them at the time agreed upon. This implies that he had not yet made final payment to them and liad not yet secured that which he was to deliver to Evans. In his letter of April 26 he says: “My personal holdings of bonds depends on the settlement between me and the estate of H. H. Evans, late of Aurora, Ill., deceased, under which the estate may take all ive have, or I may take $40,000.00 first mortgage bonds or some part thereof. (I bought $40,000.00 first and $185,000.00 of general mortgage bonds, in connection Avith Evans.) In this same deal I secured $390,000.00 of stock, one-half of which comes to me, although I have refused to accept it from the bank when it was deposited on account of the liability which might be attached to it on account of no payments having been made on the same.” Under date of May 1, he wrote: “Answering your questions regarding my individual interest in the company, it depends upon my settlement Avith the Evans estate, as I have $35,000.00 cash in that deal, and have offered to take my share in first mortgage bonds, but Avill not take any part of the general mortgage bonds secured in the deal. My stock interest is $190,000.00 which was secured with the bonds Avithout cash investment.” Exhibit 47 in eAddence is an order, dated March 12, 1917, by H. H. Evans on F. B. Watson, elsewhere shown to be cashier of the bank, directing .him to “turn over to my son, Arthur Evans, the bonds of the Chicago, Aurora and De Kalb B. B. amounting to $228,000.00, which you have in deposit box, also key to same”; and the following receipt dated March 14, 1917, written below the order, and signed by Arthur B. Evans:

“Beceived the above bonds of F. B. Watson, $185,000 general bonds and $43,000 of first mortgage bonds. The $185,000 of general and $40,000 of first bonds being a delivery on a certain contract from F. W. Cherry, the same'to be settled for with F. W. Cherry under the terms of his agreement with H. H. Evans.” This Exhibit 47 is all in the handwriting of Cherry, except the signatures. H. H. Evans died March 27, 1917, and his son Arthur E. Evans became executor of his will. Afterwards Cherry made a statement of these matters up to April 13,1917, to the executor, in evidence as Exhibit 64. He charged H. H. Evans with 60 per cent of the amount of the bonds Cherry was to acquire for him under the Evans-Cherry contract; and credited him, besides other matters, with payments by Evans to Cherry, after the latter became receiver, as follows: Sept. 22, 1916, $8,000; Oct. 4, 1916, $20,000; Feb. 13, 1917 (the day of the master’s'sale of the Estee collateral), $20,000; and on a date not stated, but apparently later, $20,000 in H. H. Evans ’ secured paper. It showed an apparent balance against Evans of $15,042. Cherry furnished a later statement showing $14,706, dne him from the Evans estate growing out of these transactions. On August 15, 1917, Arthur Evans, executor, and Cherry executed a writing, in evidence as Exhibit 9. It professed to be a settlement of the Evans-Cherry contract. It agreed that Cherry should deposit in escrow all stocks and bonds he held in the De Kalb company, “including the assignment of any interests he may have in $387,600.00 per value of stock deposited by Bliss et al., in the First National Bank of Aurora, Ill., together with all stock owned or held in the name of” the present directors of the company, together with Cherry’s resignation as.receiver and director and the resignation of all the other officers and directors.- It agreed that Evans should deposit in escrow in cash and notes $12,000; that when Cherry’s resignation as receiver had been accepted the resignations and stocks and bonds should be delivered to Evans and the cash and notes to Cherry, and this should discharge Evans and the estate of H. H. Evans from all claims of Cherry against them arising out of the Evans-Cherry contract; and the receipt of the stock, bonds and resignations should likewise discharge Cherry from his obligations. Therefore, while Cherry was receiver he received from Evans and his estate at least $72,000.

Cherry gave evidence to the effect that all he was to do under the Evans-Cherry contract was completed on June 27 or 28, 1916. It is claimed he is corroborated by the evidence of Watson. When all the testimony of the latter is read and considered in connection with various exhibits in evidence, we think the corroboration is not as strong as is claimed.

"When all the facts and circumstances are considered, including many details we have not mentioned, we are of opinion that the court was warranted in believing that said foreclosure suit was instituted and carried through for the benefit of Cherry and at his expense, and that he was merely doing that which he agreed with Evans to do, and that his compensation was not earned until that proceeding was conducted. The original answer of Cherry to the petition of Doan and May, also adopted as his answer to the intervening-petition of Gunsel (found in the Additional record filed by leave of court), admitted that after Faissler bid in these securities at the master’s sale, the master delivered said securities to Faissler and Faissler then delivered to Cherry the five-sevenths thereof covered by the Bliss-Cherry agreement, and it is clearly proved that just before or just after that sale Cherry purchased from George and Erlenborn, respectively, their interests in said securities, and thereby Cherry became the owner of them all, and he delivered them all to the First National Bank of Aurora or to F. B. Watson, its cashier, in accordance with the Evans-Cherry agreement.

It is argued that this decree can only be sustained for fraud, and that in that view the intervening petitions were insufficient to support the decree because they allege conclusions and not facts. The sufficiency of the petitions seems not to have been questioned in the court below where they could have been amended. We think the facts upon which relief was granted were sufficiently stated, and it is not important whether or not the method by which Cherry obtained profits by secret dealings in the securities of the company while he was receiver be called a fraud in the pleadings.

In the original hearing in this court Cherry did not contend that the decree of the court below was erroneous as to the amount of the profits gained by him under the foreclosure upon the securities in question, if he was chargeable with the profits under the facts. As to that his original brief said: “It is apparently true from the record that the commission made by Cherry in his transactions with Evans was large. That transaction, however, is not in question here and cannot be. ’ ’ He elsewhere contended that proof should have been made of the fair market value of the securities sold at the master’s sale and that he could only be charged in any event with that fair market value. We do not concur in that view. In no other respect was the amount found as Cherry’s profits questioned by him in his original brief, his main contention being that his transactions with Evans were closed on June 28,1916, and that he had no connection with or interest in the later transactions concerning the securities involved in the Bliss-Cherry and Evans-Cherry contracts. Not having otherwise questioned the decree as to the amount of his profits in his original brief, he could not raise any other question on that subject even in his reply brief on the original hearing. Schumacher v. Bell, 164 Ill. 181; Spring Valley Coal Co. v. Buzis, 213 Ill. 341; Morton v. Pusey, 237 Ill. 26; Wetmore v. Henry, 259 Ill. 80. In the latter case, after stating that a certain point was not raised in appellant’s original brief, the court said: “Not having been thus raised, under our rules it cannot be thereafter raised by reply brief, in oral or printed argument, or on a petition for a rehearing. Not having been raised in the brief, the point was waived.” In Morton v. Pusey, supra, plaintiff in error raised a new point in his reply brief. The Supreme Court ignored it. In Schumacher v. Bell, supra, the court said: “When errors are not insisted upon by appellant in his opening brief, it is too late to present them in his reply brief. ’ ’ So Cherry was precluded by his original brief from questioning the decree of the court below as to the amount of his profits or the manner in which that court arrived at that amount, except to argue that it should have been determined by the- market value of the securities rather than by the price which he actually received for them. But even in his reply brief he made no further answer on that subject except to restate the positions above set forth, and to say that the computations made by the attorneys for defendants in error “are unsupported, unjustifiable and grotesquely absurd,” and that “no living human being can take this record and tell upon what they are based.” This of course was not argument, and did not aid the court, and was of no effect in a reply brief, under the authorities above cited. Accordingly, in our original opinion, we said: “Appellant does not seriously contend that the amount of that profit was less than the court found. ’ ’

In the petition for a rehearing and the reply to the brief answering the ,same, Cherry questions for the first time the items which produced the profit found by the court below. These items and the proof which tends to sustain or defeat them cannot be first presented upon a rehearing. Our rule 26 (137 Ill. App. 631) says: “The petition for a rehearing shall state concisely the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portions of the original briefs and abstracts relied upon. Such petition shall not contain a general reargument of the cause.” Under a rule containing similar language the Supreme Court has often held that on a petition for a rehearing new points which were not presented in the argument of the cause will not be and should not be considered, and that points not made in the original brief are waived, and cannot be raised for the first time on petition for rehearing; and this has been said in cases where, if raised in the original brief, the point would have been serious and important. Wandschneider v. Wandschneider, 282 Ill. 286; People v. Snyder, 279 Ill. 435; Arkley v. Niblack, 272 Ill. 356; People v. Chicago & A. R. Co., 253 Ill. 191; Peabody Coal Co. v. Northwestern El. R. Co., 230 Ill. 214; Ladies of Maccabees v. Harrington, 227 Ill. 511; Eustace v. People, 213 Ill. 424; Ellis v. Sisson, 96 Ill. 105. Numerous other authorities, including decisions in the Appellate Courts, are to the like effect. We therefore conclude that the proof for and against the items which the court below found produced the aggregate amount of profits obtained by Cherry from the foreclosure of the securities in question while he was receiver, are not subject to investigation on this rehearing. We are, however, of opinion that the decision of the court below on that subject is correct and supported by the proofs. Further, there is evidence tending to show that while Evans agreed to pay 60 per cent on the securities which would give him the control of the corporation, he was willing to pay as high as 70 per cent to obtain the same, if necessary. In the suit for the foreclosure upon said securities, Cherry did not reveal to the court that he had a contract in his possession by which he was to be paid 60 per cent by Evans nor that he knew Evans was willing to pay even 70 per cent if necessary. We think it obvious that it was the duty of Cherry as receiver to reveal these facts to the court and not to permit a sale, as he did, for a much less sum, and that he was not at liberty while receiver to so conduct this proceeding as to secure for himself the profit thereby acquired.

Under date of June 19, 1911,' the company issued to Evans a note for the principal sum of $10,000, which was unsecured and was apparently of little value in 1916, and it was turned over by Evans to Cherry under their contract of June 12, 1916. Cherry delivered it to Trimble, his attorney, to apply in payment for personal services which Trimble had rendered to Cherry outside of the receivership. Trimble transferred the note to a bank in Princeton, and Cherry, while receiver, paid $3,000 to the bank upon said note, of which Trimble was still the real owner. This payment was upon an old unsecured debt of the company, and was not authorized by any order of court, and was prejudicial to the secured creditors, and should not have been made by the receiver, and was properly charged back to the receiver.

Cherry employed Trimble to act as attorney for the receiver, and he did so act during the entire time of Cherry’s receivership, and Cherry paid him therefor from time to time sums amounting to $2,350. It is alleged that this was without authority from the court, and the court below directed Cherry to pay it back to the present receiver. The appointment by Cherry of an attorney and fixing his compensation was not witliout authority of the court. In the order appointing, Bliss and Kirby receivers, it was provided that they should have authority to employ all necessary and proper agents, attorneys, officers and laborers, and to fix and alter the compensation of said agents, attorneys, officers and laborers, subject to the revision of the court. In the order appointing Cherry receiver, he was given like powers and duties as were conferred upon said Bliss and Kirby by the order appointing them. Therefore Cherry did have express authority from the court to employ an attorney and to fix his compensation, subject to revisions by the court. Trimble did perform much important service for the receiver. Cherry advised with him concerning' every thing that was done in running the railroad. Trimble filed various petitions for the receiver and obtained court orders thereon, and among these were orders for repairing certain bridges along the line. There was a death claim against the company. He filed a petition and secured an order authorizing a settlement of that claim. The same thing was done with a personal injury suit against the company. Trimble spent many days defending against the $100,000 claim filed by Murphy. He assisted in the settlement of that claim at an expense to the company of only $2,500. He prepared the final report of the receiver and the order of court approving it. It is manifest that the attorney for an operating railroad must have much occasion to give legal advice to the man in control of it. Trimble testified that the fees paid him were not only usual and customary but were in his opinion low for such services. This evidence is not contradicted. The reason for rejecting entirely these fees, paid by Cherry to his attorney under this order of court, grows out of certain matters already referred to which occurred in connection with the foreclosure upon said collaterals. Trimble sought to have said $10,000 Evans note included in the benefits of the decree foreclosing the securities mentioned in the Estee agreement. Trimble testified that the collateral notes given by the company contained a clause to the effect that the Company had deposited with the payee collateral securities, for the payment of that note and all and any other liability or liabilities, direct or contingent, now or before owing by said railroad company; and he conceived the idea that under that provision, this note might come in for any excess there might be in the proceeds of the sale to satisfy the decree, or that it might prorate with the other notes, and that that provision might be held to cover all liabilities of the company. When he found that Faissler and the beneficiaries under the Estee agreement would not agree to it, he withdrew that attempt. He drew some pleading to ask for that relief, which was not- filed. -It is intimated in argument that he prepared a decree, which included that note, and that that was signed by the judge and afterwards was withdrawn. Such a decree was prepared, but we do not find any evidence in the record that it was approved by the judge. The position taketi by Trimble was incorrect. One of the company’s collateral notes is in the record, but, though containing very full provisions of the kind indicated, it limited them to debts due the payee of the note. We are of opinion, however, that the fact that Trimble urged an erroneous idea of the law on the subject ought not to deprive him of the compensation which the receiver had paid him under the authority of the orders of court above specified, and ought not to require the receiver to refund that compensation, and that as Trimble’s testimony as to the value of his services was not disputed, the provision of the decree requiring Cherry to refund the fees paid said Trimble should be reversed. If the proof had shown a charge by Trimble against the receiver for services in that foreclosure suit, that charge might have been properly rejected, but Cherry employed another attorney in that case, and it does not appear that the receiver paid Trimble anything, for legal services in foreclosing upon those collaterals.

We are of opinion that it is a sufficient punishment to the receiver to lose the profits which were made upon the foreclosure of the securities under the EsteeCherry contract, without depriving him of .his ordinary compensation for his services as receiver; and that the sum which he credited to himself for such compensation is not shown to he unjust. He appears to have been diligent in the business of the company while he was receiver, and it does not appear that the compensation originally allowed him was excessive. The cross error on that subject is not sustained.

It "is urged, under the cross errors, that the receiver should have been required to pay interest on the profits charged against him, and on the $3,000 paid the Princeton bank. The decree against the receiver was rendered on July 16, 1918, and not only bears interest at 5 per cent per annum by statute but also* by the express terms of the decree. Portions of Cherry’s profits were received by him at different times, and we do not find any sufficient basis in the evidence for charging interest from any particular date before the final settlement of these matters between Cherry and Arthur Evans, executor, on August 15, 1917., From that date to July 16, 1918, Cherry should pay interest at 5 per cent per annum on said profits. The receiver paid $3,000 to the Princeton bank on May 10, 1917. This was a payment on the note heretofore mentioned for $10,000 given by the company to H. H. Evans on June 19,1911. As that payment was properly charged back to the receiver by the decree, the receiver should also have been charged with interest on said $3,000 at 5 per cent per annum from May 10, 1917, to the day of the decree. But this paid $3,000 of a debt of the company, and the decree should have awarded Cherry the position of an unsecured creditor of the company for $3,000, with a right to interest thereon from May 10, 1917.

The decree is therefore reversed as to $2,350 paid by the receiver to C. A. Trimble as attorney fees, and as to the matter of interest upon the $3,000 paid the Princeton bank, and as to the failure to charge Cherry interest on said profits, and is in all other respects affirmed; and the cause is remanded to the circuit court of Kane county, with directions to modify its decree in conformity with this opinion. Costs will be taxed for the additional abstract. Harvey Gunsul, as receiver, will pay one-tenth of costs of this court,-and Frank W. Cherry will pay the rest of said costs.

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


text:
    Robert McKinty, Appellant, v. Lucas I. Butts, Appellee.
    Gen. No. 6,677.
    1. Pleading, § 99

      —notice under general issue should not con-elude with a verification. A notice of special defenses under the general issue should not conclude with a verification, the statute not authorizing the formation of any written issue upon such a notice.
    2. Pleading, § 99*—notice under general issue with special plea not permitted. A defendant has no right to give notice of special matter relied on as- a defense and also to file a special plea, and when this is done, should be required to elect under which he will proceed.
    3. Pleading, § 123*—necessity for special replication. Where a special plea sets up new matter, there should be a special repiication to frame issues of fact thereon.
    4. Trial, § 3*—when case treated as though oral issue joined. Where the parties go to trial voluntarily without completing written issues, the case will be treated as if an oral issue had been joined.
    5. Pleading, § 462*—when absence of formal issue immaterial. Where a defendant pleads the general issue and special pleas, to which a demurrer is sustained, and afterwards files notice of special defenses under the general issue and concludes that notice with a verification and also files therewith a special plea setting up new matter and concluding with a verification, and plaintiff does not-ask that he be required to elect whether he will proceed under the notice of special matter relied on as a defense or under the special plea and files no special replication to the special plea, which sets up new matter, the case will be treated as tried by consent upon both the general issue and the notice of special matter thereunder and upon the special plea with an adequate oral replication thereto concluding to the country, and defendant’s pleadings in such case are sufficient to support a verdict if proven.
    6. Exemptions, § 19

      —right to waive. A debtor who is a single man may waive his right to an exemption.
    7. Exemptions, § 19*—what constitutes waiver. Where a debtor against whose property an attachment writ, not under judgment, is issued, pursuant to notice, files a schedule of exemptions the total valuation of which is $590.95, and none of the goods scheduled being specifically exempt, and, upon a general execution being issued and levied upon the property at the suit of the attaching creditor, fails to schedule and have the property exempted to the extent of $100, though notified, but permits it all to be sold and the proceeds applied to the satisfaction of his debt to the attaching creditor, he loses the right to claim exemptions and is estopped to set up that the sheriff should have summoned appraisers and caused the property to be valued.
    8. Attachment, § 323*—remedies for wrongful. It is not the purpose of the statute regarding wrongful attachment that the debtor shall have the property and also recover double its value, but he may either replevy such property where it is illegally held or may sue for double the value.
    9. Exemptions, § 41*—when debtor estopped to recover double value of property from sheriff for wrongful levy. An unmarried debtor who, by failing to schedule his exemptions, elects to let his attached property be sold and applied in satisfaction of his debt, is estopped to recover back from the sheriff double the value of the property.
    10. Appeal and error, § 1782*—reversal not granted to permit recovery of nominal damages. Pursuant to the principle de minimis non curat lew, a judgment will not be reversed merely to permit the other party to recover nominal damages.
    11. Appeal and error, § 1782*—when amount involved does not toarrant reversal. The fact that an unmarried debtor who filed, on attachment of his property, a schedule of exemptions, the valuation of the property in which was far in excess of his $100 exemption, may have been entitled to damages for the use of $100 of such property between the time it was attached and the date at which it was levied on under an execution issued under the judgment of the attaching creditor, is not ground for reversing a judgment for defendant in an action by such debtor against the sheriff for double the value of the goods.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Frank A. Hall and Irwin L. Fuller, for appellant.
    Quinn & Quinn, for appellee; F. J. Quinn, C. V. O’Hern and H. R. Schradzki, of counsel.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

At the time of the occurrences involved in this suit, Butts was sheriff of Peoria county, and McKinty was defendant in an attachment suit. Afterwards, McKinty sued Butts for alleged improper action and for alleged lack of proper action under said attachment writ. He filed a declaration of four counts and afterwards amendments thereto and an additional count. In the first count of the declaration, after alleging his ownership of the liquors and cigars, etc., attached, and that this was all his personal property, plaintiff alleged that he 'delivered to defendant, who was the sheriff with said writ of attachment, a “schedule of exemption” of said personal property, and that thereby and by virtue of the statute said property became exempt from levy under said attachment, and yet the sheriff levied thereon. The second count contained the same allegation of ownership in plaintiff, and recited the delivery .of said attachment • writ to said sheriff and that the sheriff took from McKinty said goods as the writ commanded; that the sheriff' notified McKinty to file a schedule, and McKinty did within the time allowed by law deliver to said sheriff a debtor’s schedule in accordance with said notice and therein inventoried said goods and the sheriff accepted said schedule from him; that it then became the duty of the sheriff to cause said property to be appraised and that McKinty should select such articles as he desired as exempt, not exceeding the amount of exemption to which he might be entitled, but the sheriff failed to appoint appraisers and failed to return to McKinty any of said goods, but converted the same to his own use. The third count was like the second and averred that after the sheriff failed to appoint appraisers plaintiff demanded from the sheriff the return of all said property as exempt, but the sheriff failed to return the same. The fourth count was in trespass for taking said goods and converting the same to his own use, and made no reference to any writ of attachment or to the official character of the defendant. The first three counts were amended so as to show, among other things, that plaintiff was single and not the head of a family and was entitled to $100 worth of personal property to be selected by him as exempt under the writ of attachment. The additional count described the property and the attachment writ and the notice to plaintiff to schedule and his filing the schedule in accordance with the statute and the receipt of the schedule by the sheriff and the failing of the latter to appoint appraisers, and charged that thereupon all said scheduled property became exempt; it alleged plaintiff’s demand upon the sheriff to return all said property and his failure to comply; and it alleged that his refusal constituted a levy upon exempt property, and entitled plaintiff to recover double the value of the property as provided by statute. Butts pleaded the general issue and three special pleas, to which a demurrer was sustained, and afterwards filed notice of special defenses under the general issue, and concluded that notice with a verification; and also filed therewith a special plea setting up new matter and concluding with a verification. The course pursued wás inaccurate in several respects. The notice of special matter in defense should not have concluded with a verification, for the statute does not authorize the formation of any written issue upon such a notice. Burgwin v. Babcock, 11 Ill. 28; Bailey v. Valley Nat. Bank, 127 Ill. 332; White v. Bourquin, 204 Ill. App. 83, 96. A defendant has no right to give notice of special matter relied on as a defense and also to file a special plea; and when this is done he should be required to elect under which he will proceed. Benjamin v. McConnell, 9 Ill. (4 Gilm.) 536; Gilmore v. Nowland, 26 Ill. 201; Wyatt v. Dufrene, 106 Ill. App. 214; Aurora Trust & Savings Bank v. Whildin, 208 Ill. App. 527. Plaintiff did not ask that defendant be required to make such election. The special plea set up new matter, and there should have been a special replication to frame issue of fact thereon. Where parties go to trial voluntarily, as plaintiff and defendant did here, without completing written issues, the case will be treated as if an oral issue had been joined. We collected the authorities announcing this rule in Witteman Co. v. Goeke, 200 Ill. App. 108, 114. Therefore the case must be treated as tried by consent upon both the general issue and the notice of special matter thereunder and upon the special plea with an adequate oral replication thereto concluding to the country. These pleadings by defendant are sufficient to support a verdict for defendant, if proven. There was a jury trial and, at the close of all the evidence, the court directed a verdict for defendant. Such a verdict was returned, a motion by plaintiff for a new trial was denied, defendant had judgment, and plaintiff appeals. We affirmed the judgment and afterwards granted a rehearing.

The actual control of the attachment writ passed into the hands of a deputy sheriff, who served the writ upon plaintiff by reading the same to him and by delivering to him a true copy thereof, and by levying upon a stock of liquors and cigars, two or three articles of furniture and a small sum of money. He notified plaintiff to file a schedule within 10 days in order, to claim his exemptions. Within 10 days plaintiff filed a schedule in which he described himself as a single man and listed the various articles levied upon and fixed a valuation upon each article or set of articles, the total valuation of which he added up at $590.95. Attached to said schedule he added the following-: “List of articles selected by debtor. The articles which I hereby select from the following schedule and which I wish to retain are as follows: All articles listed on foregoing sheet to the amount of $590.95.” He signed this schedule, and attached his oath to its correctness. The sheriff did not summon appraisers. McKinty demanded all the property and claimed that all was exempt. The sheriff refused to honor his demand for all the property and kept it all. Not many days thereafter plaintiff delivered to the sheriff a written demand for all the goods in question, describing them as in the schedule, but not stating apon what ground he based his demand. The record does not seem to tell what became of that attachment writ, but in that suit the plaintiff therein recovered against McKinty a general judgment and had a general execution, and the sheriff levied the same upon this property and served the execution upon McKinty and demanded of him a schedule of all his personal property if he desired to claim exemptions. McKinty refused to schedule, and the property which had previously been levied upon under the writ of attachment was sold under the general execution and satisfied the judgment. Thereafter defendant in attachment brought this suit. The facts above stated are proved and are substantially undisputed. The sheriff also introduced proof that when McKinty handed his deputy the schedule under the attachment writ, said deputy told McKinty he would accept McKinty’s valuation of the property and McKinty might select from the property scheduled $100, thereof at his own valuation as his exemptions, and that McKinty refused to select $100 worth but demanded all the property as exempt. McKinty testified that he did not remember such a conversation, and in answer to a leading question by Ms counsel denied that the deputy offered to permit him to select and take $100 worth as exempt. If this alleged conversation between McKinty and the deputy sheriff was material to the defense, it should have been submitted to the jury. There was also a dispute in the evidence as to whether McKinty scheduled all Ms personal property, wMch the trial judge could not determine.

A debtor who is a single man may waive his right to an exemption. Powell v. Daily, 163 Ill. 646. Mc-Kinty saw fit to attach to the various articles named in his schedule a valuation upon each article or set of articles. He saw fit to add to that schedule that he selected each of the articles named therein to the full value of $590.95; and he demanded their return to Mm, not on the ground that appraisers had not been appointed, but on the ground that he was entitled to all the property as exempt. In Moffett v. Sheehey, 52 Ill. App. 376, there had been an imperfect appraisement made. What was there said on page 381 is instructive on this subject: “The debtor accepted the appraisement as made, and so waived its imperfection. His schedule suggested, occasioned and excused it. The first fault was his own. He made his selection, if it may be so called, upon the appraisement made. But he did not limit it to articles not exceeding in aggregate value the amount exempted. He was bound to select them at their appraised value. Finlen v. Howard, 126 Ill. 262. What he selected embraced all that was scheduled. It was appraised at $879.20, and he was entitled to only $400 worth, showing an excess of $479.20. The officer could not select for him nor change the selection he had made. If the schedule and appraisement as made did not enable him to select specific articles of any appraised value, he should have sought to have them corrected. But it is evident that if each article had been appraised and the aggregate. had amounted to what it did, he would have demanded them all.”

In Amend v. Smith, 87 Ill. 198, a constable levied an execution upon a field of corn. The defendant in execution claimed it was all exempt. He was entitled to only $100 worth to be selected by him. He claimed and replevied the whole crop. The court held that he could not select it as exempt without specifying a portion thereof not exceeding in value $100, and unless he made such a selection, the law was for the constable. Again, under the present statutes, none of these goods were specifically exempt. When the general execution was issued and levied upon this property, McKinty was notified to schedule and could have done so and had the property appraised and claimed his $100 exemption. He failed to do that, but chose to let all this property be sold and applied in satisfaction of his debt to the plaintiff in attachment. Section 2 of the Act (J. & A. ¶ 5584) concerning exemptions of personal property from execution, etc., directing the manner in which a schedule shall be made, provided that if the judgment debtor has presented a sufficient schedule, the return of that execution unsatisfied and the issuing of an alias execution shall not render it necessary for the judgment debtor to present an additional schedule for the purpose of availing himself of the benefits of the exemption law before 70 days from the date of the writ issued on a justice judgment, or 90 days on any other judgment. In this case the attachment writ was issued on November 22 and levied on November 25, 1916. A notice was given to McKinty on December 8, and he presented his schedule December 14, 1916. On February 2, 1917, the plaintiff in the attachment suit recovered a general judgment against McKinty, and had an execution on that day. If this judgment had been a special judgment in attachment, with an-order for the sale of the property attached, we assume that the defendant in attachment would not have been compel-led to file another schedule within 90 days after the issue of - the original attachment. But inasmuch as the attachment writ was not under a judgment, and the general execution was, we are of the opinion that the schedule presented under the attachment writ did not avail McKinty when a general execution was issued upon the judgment and he was served with a copy thereof and notified to file a schedule, under the rea,soning in Camp v. Ganley, 6 Ill. App. 499 (which was before the statute as to additional schedules), and Gullett v. Conley, 81 Ill. App. 131. The latter case indieates that the statute making it unnecessary within a certain time to file a second schedule refers to an alias writ under the same judgment as the former writ.

We are of opinion that after McKinty made his own appraisement and valuation of' each article or set .of articles and prepared his selection on .the basis of his own appraisement, and delivered said appraisement and selection to the officer having the attachment writ, he is estopped from claiming (after that suit had ended) that the sheriff should have summoned appraisers and caused the property to be valued by them. As said in Moffett v. Sheehey, supra: “The first fault was his own.” Again, we are of opinion it was not the intention of the statute that a debtor in such a case shall have the property and also recover from the sheriff double the value of the property. If. this property was illegally held by the sheriff under the attachment, it was still McKinty’s property and he could have replevied it or brought suit for double the value. We think he could not have done both. In fact he did neither at that time. The attachment writ remained in force until the general execution reached the sheriff. He then levied that execution upon this property and gave McKinty the proper notice to schedule his personal property if he wished -to claim his exemption. McKinty refused to schedule and did not claim exemptions. He could have scheduled and would have obtained his exemptions. By failing to schedule he lost the rig’ht to claim exemptions. He elected to let all his property go in satisfaction of his debt. He has the value of-that property in the payment of his debt, by his own volition. Surely in a suit instituted after that is accomplished, he must be estopped to recover from the sheriff double the value of all that property. All that McKinty actually lost was the use of $100 worth of personal property from December 14, 1916, when McKinty presented his schedule, to February 2, 1917, when the sheriff received and levied the general execution. McKinty presented no proof what the damages arising therefrom would be and no basis on which the jury could fix damages therefor. Near the close of the trial counsel for plaintiff twice told the court that plaintiff was suing for double damages for failure to appoint appraisers. The court had a right to take him at his word. In this state of the proof McKinty could not recover said double damages. There was no proof which would enable him to recover his actual damages, if any. The court therefore did not err in directing a verdict for defendant. We do not doubt that it would have been wise for the sheriff to appoint appraisers, notwithstanding McKinty’s appraisement and selection, but we hold McKinty es-topped by his conduct from recovering double damages, especially after he had refused to- schedule under the execution.

But if plaintiff might have recovered nominal damages for failing to cause said property to be appraised under the attachment writ, still a judgment for one party will not be reversed merely to permit the other party to recover nominal damages. This is under the principle “de minimis non curat lex.” In McNutt v. Dickson, 42 Ill. 498, this rule was thus quoted from Broom’s Legal Maxims: “The court will not in general grant a new trial where the value of the amount in dispute, or the amount of damages to which the plaintiff would be fairly entitled, is too inconsiderable to merit a second examination.”

This rule has frequently been applied by the Supreme and Appellate Courts of this State. Freese v. Glos, 248 Ill. 280. We have applied it in Roesch v. Young, 111 Ill. App. 34; Hueni v. Freehill, 125 Ill. App. 345; Sheldon v. Eakle, 160 Ill. App. 282, and many other eases. We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.

Mr. Presiding Justice Niehaus took no part.


text:
    W. A. Davis Lumber Company, Appellant, v. H. C. Stone Lumber Company, Appellee.
    Gen. No. 6,709.
    Sales, § 156

      —effect of retention of part of goods sold after refusal to deliver balance. If the vendee of a specific quantity of goods sold under an entire contract receive a part thereof and retain ‘it" after the vendor has refused to' deliver the residue; this is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for such part, but he may reduce the latter’s cláim by showing that he has sustained damage by the latter’s failure to complete the contract.
    Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Covey, Campbell & Covey, for appellant.
    Tichenor, Todd, Wilson & Barnett, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

W. A. Davis Lumber Company sued H. C. Stone Lumber Company to recover the price of two carloads of lumber sold and delivered, and filed a declaration consisting of the common counts, with an affidavit of claim showing the amount due plaintiff to be $726.42, attached to which declaration was also a copy of the account sued on which gave defendant certain credits. Defendant filed a plea of the general issue with an affidavit of merits, claiming a set-off or recoupment by reason of the failure of plaintiff to complete the performance of its contract for the shipment of lumber. A jury was waived. At the trial certain facts were stipulated, and forty-eight letters between the parties were admitted in evidence without objection and witnesses were heard on one disputed question of fact. Exhibit 4, dated November 7, is obviously meant to be dated February 7. Plaintiff had a judgment for $346.9.1, and it appeals therefrom.

It was stipulated that payment on cars of lumber delivered was due in from 2 to 5 days after delivery, to give the buyer time to inspect, and that payment within that time entitled the buyer to 2 per cent discount ; that car No. 15022 was delivered April 22, 1918, and therefore payment on it was due April 27; that car 5418 was delivered April 23, 1918, and therefore payment was due therefor on April 28, 1918. It was stipulated that on car 15022 a certain sum had been paid by defendant and certain freight had been paid by defendant and the balance due on that car was agreed. It was agreed that on car 5418 defendant was entitled to credit for freight paid thereon and also a deduction for certain shortage and off-grade on that car, which amount was agreed upon. The contracts are contained in the correspondence. There is some confusion on that subject in the earlier letters. The facts, however, appear to be that under date of February 6, 1918, defendant ordered one or two carloads of lumber from plaintiff, which order it accepted as one car, and filled with said car No. 15022, payment for which under the stipulation came due on April 27; that under date of February 8, defendant ordered of plaintiff one or two more cars and, under date of February 9, made that an order for 35,000 feet of lumber to be shipped in two cars, and, if necessary, three ears, and asked to have the first car moved promptly and' the other about 30 days later. This was accepted by plaintiff with the request to be permitted to load the second car soon, instead of 30 days later, and that was agreed to by defendant. Car 5418 was the first car shipped on this order and contained 13,486 feet of lumber, payment for which, as already stated, was due April 27. Before that time had arrived plaintiff had requested to have that order canceled and defendant had refused. Before payment was due on the first car shipped on that second order we think it plain that plaintiff had decided not to ship any more cars on that order. This may have been because the price of lumber had raised. Plaintiff contends that because defendant did not remit for the first two cars plaintiff was not bound to ship more lumber and defendant therefore is not entitled to damages for the failure to fill the order.

The rule stated in Richards v. Shaw, 67 Ill. 222, seems to cover this case. It was there said: “If the vendee of a specific quantity of goods sold under an entire contract, receive a part thereof, and retain it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for the price of such part; but he may reduce the vendor’s claim by showing that he has sustained damage by the vendor’s failure to fulfill his contract.” To the sam'e effect is Evans v. Chicago & R. I. R. Co., 26 Ill. 189. The same principles are announced in Anglo-Ameri can Provision Co. v. Prentiss, 157 Ill. 506; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59; and in part in Norrington v. Wright, 115 U. S. 188. We are of opinion that the cases cited by appellant do not overrule the rule stated in Richards v. Shaw, supra.

Before the time had arrived when under the stipulated custom defendant was required to pay for the cars it had received, defendant had shown by its letters and conduct that it did not further intend to fill the second order. Therefore, while defendant had become liable to plaintiff for the price of the lumber received, it had a right to reduce the plaintiff’s claim by showing that defendant had been damaged by the plaintiff’s failure to ship the rest of the 35,000 feet. Plaintiff offered evidence tending to. show that at the time when said remaining lumber should have been received under the contract, the market price of that ldnd of lumber at the place of delivery had not increased, but there was a clear preponderance of proof presented by defendant, showing that the market price of said lumber at said place had materially increased. It is hot argued that the judgment is erroneous if the court did not err in allowing such damages to be recouped or set off. We approve the ruling of the court in rejecting the propositions of law and fact submitted by plaintiff.

The judgment is therefore affirmed.

Affirmed.