author: Mr. Justice Gridley

text:
    Calumet and Chicago Canal & Dock Company and Murry Nelson, Jr. Trustee, Defendants in Error, v. Abel Davis, Trustee, Plaintiff in Error.
    Gen. No. 20,755.
    1. Corporations, § 448

      —when loan authorized by charter. A dock company, organized under a special charter of this State, which provides that the company “may purchase, possess and occupy real and personal estate, and may sell, lease and employ the same in such manner as it shall determine,” where such charter does not expressly prohibit the lending of money from its surplus funds, as incident to the sale of a part of its real estate, a loan made in such a manner by the company to the vendee of a part of such real estate, for which it takes his notes and a deed of trust to secure the payment of the sainé, is valid.
    2. Corporations, § 448*—when loan incident to sale of realty. Section 1 of the General Corporation Act (J. & A. If 2418), which provides that “corporations may be formed in the manner provided by this act for any lawful purpose except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money,” does not prohibit a dock company, which, by the terms of its special charter, “may purchase, possess and occupy real and personal estate, and may sell, lease and employ the same in such manner as it shall determine,” from making a loan from its surplus funds as incident to the sale of a part of such real estate and taking a deed of trust as security for the same.
    3. Corporations, § 448

      —when corporation not in business of loaning money. Where the only evidence as to the number of loans made by a dock company was that of two witnesses who testified that only one loan, which was made for $25,000 for two or three months on collateral, was made beside the one in question, which was made as incidental to a sale of a part of its real estate, held, that the company was not engaged in the business of loaning money prohibited by the General Corporation Law (J. & A. 2418).
    4. Corporations, § 448*—when loan of surplus funds authorized. A loan made by a dock company as incidental to a sale of its real estate from the surplus funds of the company, where it is authorized to make such sale by the terms of its charter, is valid as an investment of such surplus funds.
    5. Corporations, § 448*—when evidence shows that loan was made from surplus. Where a dock company made a loan, and the president of the company testified that such loan was made from its surplus funds and his testimony was not contradicted, the finding of the master that the loan was made from the surplus funds of the company is warranted by the evidence.
    6. Corporations, § 342*—when question of ultra vires cannot be raised. Where a dock company is authorized by its special charter not only to purchase, possess and occupy, real estate but also to sell it, and it makes a sale of a part of such real estate and makes a loan from its surplus funds as incidental to such sale, taking a deed of trust to secure the same, the party to whom such loan has been made having become bankrupt the trustee of his estate cannot complain that such loan was ultra vires.

    Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement by the Court. On January 16, 1913, the complainants, Calumet and Chicago Canal & Dock Company, a corporation (hereinafter called the Dock Company), and Murry Nelson, Jr., as trustee under a certain trust deed, dated January 22, 1909, and also as trustee under another trust deed, dated June 19, 1911, filed their bill in the Circuit Court of Cook county to foreclose said trust deeds which were given by Allen Conkling on certain property in South Chicago, Cook county, Illinois. Prior to the time of the filing of the bill Allen Conkling had been adjudged a bankrupt in the United States District Court for the Northern District of Illinois, and Abel Davis had been appointed trustee of Conkling’s bankrupt estate, and complainants by order of said District Court had obtained leave to foreclose said trust deeds and to make Abel Davis, trustee, a party defendant. The bill was filed against said Conkling and said Davis, trustee, and others, as defendants. The bill alleged, inter alia, that on January 22,1909, Conkling owed the Dock Company $50,000, and made and executed five principal notes of even date, payable to the order of himself and by him indorsed and delivered; that four of said notes were for $5,000 each, due respectively on or before twelve, eighteen, twenty-four and thirty months after date, and one note for $30,000, due on or before three years after date, all of said notes bearing interest at six per cent, per annum, payable semiannually; that to secure payment of said notes Conkling executed and delivered the trust deed dated January 22, 1909, conveying to Murry Nelson, Jr., trustee, all of that portion of Block 138 lying west of the right of way of the Pitts-burg, Fort Wayne & Chicago Railway Company, and also conveying certain lots in the east half of Block 139, all in said Dock Company’s subdivision in South Chicago; that the Dock Company is the legal holder and owner of said notes; that Conkling has paid no interest on the notes since January 22, 1911, and that all of them are overdue and unpaid; that Conkling, in breach of the conditions of the trust deed, has failed to pay for the insurance on the buildings on the premises and to pay certain taxes; that the Dock Company, having acquired title to the strip of land lying between said Blocks 138 and 139 and south of the south line of east Ninety-seventh street extended east, and known as Brie avenue, conveyed the same on June 19, 1911, to said Conkling, and he executed and delivered the trust deed, dated June 19, 1911, conveying said strip of land to Murry Nelson, Jr., trustee, with the proviso that said strip of land should be subject to all the terms and conditions and covenants contained in said trust deed of January 22, 1909; and that complainants have the right to foreclose both of said trust deeds, etc. The bill prayed for a foreclosure and for a receiver.
    The answer of Abel Davis, trustee of the estate of Allen Conkling, bankrupt, alleged, inter alia, that the Dock Company is a corporation organized and existing by virtue of a certain special act of the Illinois Legislature, in force March 10, 1869 (said special act was set forth in full); that said Dock Company has no rights, powers or authority other than those conferred upon it by said special act; that for many years prior to January 22, 1909, Conkling was the owner of said portion of said Block 138; that if said Conk-ling was indebted to the Dock Company on January 22, 1909, it was by reason of a loan which the Dock Company made to Conkling in the sum of $50,000 on or about said date; that if- Conkling executed any notes or trust deed he did so as evidence and as security for said loan; that the Dock Company had no right, title or authority under its charter to make said loan to Conkling or to accept as security therefor any trust deed executed by him, and, in particular, had no. authority to accept as security for the loan the first trust deed described in said bill of complaint; that such trust deed so accepted is null and void and of no force and effect whatsoever, and the Dock Company can obtain no rights thereunder and can bring no action to enforce or foreclose the same, because the act of the Dock Company in making the loan and accepting the trust deed was ultra vires and beyond its corporate powers and authority, and that such trust deed creates no lien upon said property which is superior to the title of this defendant; and that the second trust deed described in said bill is likewise null and void and creates no lien in favor of complainants which is superior to the title of this defendant.
    A replication to the above answer was filed, certain other defendants were defaulted, and issue was joined as to other defendants who had filed answers, and the cause was referred to a master in chancery to take proofs and report the same, together with his opinion on the law and evidence.
    The master found, inter alia, that on January 22, 1909, Conkling executed and delivered the notes and first trust deed mentioned, and on June 19, 1911, executed and delivered said second trust deed; that the Dock Company is the holder and owner of said notes and the indebtedness represented thereby; that said notes and first trust deed were given to the Dock Company “as part of a transaction” by which the Dock Company sold to Conkling for $15,000 said lots in Block 139, and that “as an inducement for such purchase” the Dock Company gave Conkling credit for the whole purchase price of $15,000, and made a loan to him “in addition” of $35,000, out of the “surplus funds” of the Dock Company, and took from Conkling the notes and trust deed as security for said indebtedness, amounting to $50,000; that the Dock Company is a corporation organized by a special act of the Legislature of Illinois, in force March 10, 1869; that the Dock Company would not have made to Conkling said loan of $35,000 in excess of the purchase price of said lots in Block 139, “except for the purpose of inducing said Conkling to purchase said lots”; that Conkling had sought to obtain from the Dock Company a loan secured only by a trust deed covering said portion of Block 138, but the Dock Company had declined to make such loan, or to make any loan except as- incidental to the sale of said lots in Block 139; that under its charter the Dock Company had power to sell said lots in Block 139, and to loan to Conkling said sum of $35,000 out of its surplus funds as incidental to such sale; that said notes and trust deed are valid and legal obligations of said Conkling; and that at various times the Dock Company has paid out moneys for taxes and insurance upon said property, etc. The master recommended that a decree of foreclosure be entered. Abel Davis, trustee, filed objections to the master’s report, which were overruled, and the same were ordered to stand as exceptions on the hearing before the court.
    On June 5,1914, a decree of foreclosure was entered, in which the court overruled said exceptions and found that the equities of the cause were with the complainants, etc.; that the trust deed of January 22,1909, made by said Conkling, and the indebtedness secured thereby were a valid lien on the real estate therein described; that the trust deed of June 19, 1911, was also a lien on the real estate theréin described; that Allen Conk-ling was personally liable for the payment of the indebtedness secured by said trust deeds, of which indebtedness the Dock Company was the owner, and that there was due the Dock Company from said Conk-ling the sum of $64,644.93, and also the sum of $3,000 for solicitor’s fees. The court decreed that unless said sums, together with interest and costs, be paid to the Dock Company within five days, the property should be sold by the master in the usual manner, etc. On July 3, 1914, the master sold the property at public sale to the Dock Company for $67,000, and on July 18, 1914, the court ordered that the master’s report of sale-be confirmed.
    On September 4, 1914, this writ of error was sued out by said Abel Davis, trustee. On February 6, 1915, it appearing to this court that the codefendants with said Abel Davis, trustee, in the Circuit Court did not join in the prosecution of said writ of error, hnt that their names were used as coplaintiffs in error pursuant to the statute, and it further appearing that the appearance of certain of said coplaintiffs in error was duly entered and that service of summons was duly had on the others, and that all of said coplaintiffs in error have failed to assign errors on the record in said cause or join in the prosecution of said writ of error, it was ordered that a judgment of severance be entered against said coplaintiffs in error, and leave was granted to said Abel Davis, trustee of the estate of Allen Conlding, bankrupt, to prosecute this writ of error alone, and the cause was taken.
    In the special act of the Legislature of Illinois, in force March 10, 1869, incorporating the Dock Company, it was provided in section 1 of the Act that the corporation “shall have perpetual succession, may contract and be contracted with, * * * may purchase, possess and occupy real and personal estate, and may sell, lease and employ the same in such, manner as it shall determine; and shall have the right to borrow money, and pledge their property and franchises to secure the same, and have and exercise all the powers necessary as a corporation, to carry out the objects of this act.” Sections 2, 3 and 4 contain provisions, respectively, regarding the amount of its capital stock, the management of its business affairs and the location of its principal office in Chicago. By section 5 the company was given power to enter upon and make surveys of lands between the south branch of the Chicago Eiver, or the Illinois and Michigan Canal, and the Calumet Eiver, for the purpose of locating and constructing a canal from such point on the Calumet Eiver to such point on said south branch of the Chicago Eiver, or said Illinois and Michigan Canal, as the company should determine, and to build, operate and maintain docks, basins, shipyards, warehouses and piers, and to make rules for the passage of all boats and vessels. By section 6 the company was given power to acquire by condemnation certain lands, the fee of which when acquired should become vested in it. By section 7 the company was given the right to intersect any highway or railroad with the canal, and by section 8 to construct bridges.
    On the hearing before the master, Murry Nelson, Jr., testified, in substance, that he had been president of the Dock Company since 1908; that before the Chicago fire the company had acquired certain land, some of which it has not needed since, and that when possible the same is sold; that the company has no other source of income than the sale of its real estate; that its assets are about $3,000,000; that it spends about $100,000 a year for taxes and assessments; that whenever the company makes a sale of any of its lands, it keeps on hand enough to meet said taxes and assessments, and incidentally the company loans out any surplus funds it may have; that he had charge of the negotiations (first with Eugene Hogue, agent for said Conkling, and later with Conkling himself) which léd up to the making of the notes and trust deed, dated January 22, 1909; that early in 1909 Hogue requested of him that the Dock Company make a loan to Conk-ling on said portion of said Block 138, then owned by Conkling, and on which there was then a past due mortgage of about $30,000 for money previously loaned Conkling by the First National Bank of Chicago; that he (Nelson) told Hogue that the Dock Company “was not in the business of making loans ’ ’; that he tried to get other parties to make the loan to Conkling, but without success; that subsequently Hogue suggested that Conkling might buy said lots in Block 139, and asked if the Dock Company, in addition to making this sale, would make a loan on said portion of Block 138 and said lots in Block 139; that thereupon further negotiations were had which resulted in the Dock Company selling to Conkling said lots in Block 139 for $15,000, giving Conkling credit for said purchase price and loaning him also $35,000 in cash, and taking Conk-ling’s said notes for $50,000, secured by said trust deed, dated January 22, 1909; that the Dock Company at this time “had surplus funds” from which it made the loan; that he, as president of the company, would not have made the loan “except as an incident to the sale” of said lots in Block 139; that he did not know of any loans, other than the one in question, made by the company on real estate security; and that since said transaction was consummated he did not remember of but one other loan being made, and that was • for $25,000, made for two or three months on collateral, which loan had been paid. The testimony of Eugene Hogue, a witness for defendant, as to the making of said loan and sale, is in substantial accord with that of said Nelson. Hogue also testified that after the papers and money had passed, the First National Bank was paid the amount of Conkling’s mortgage indebtedness to it and that Conkling got the difference. The testimony also showed that Allen Conkling was adjudged a bankrupt on November 18, 1911; that unsecured claims had been filed and allowed against said Conkling’s estate, amounting to $60,597; and that if said trust deeds are valid liens on said properties there are substantially no assets with which to pay said unsecured claims.
    Jesse Lowenhaupt and Oscar M. Wolff, for plaintiff in error.
    Bentley, Burling & Swan, for defendants in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

Counsel for the defendant, Abel Davis, trustee, etc., state at the commencement of their written argument here filed: “The only question before this court is the validity of the trust deed covering Blocks 138 and 139. It is our contention that the act of the Dock Company in making the loan to Conkling was absolutely ultra vires, and that therefore no action can be brought upon the trust deed. * * * We contend that nothing in the Dock Company’s charter can be twisted into an express power to loan money, and that the making of this loan was not the exercise of a power reasonably and necessarily incidental to any express power of the corporation.” Counsel then argue that, assuming that the Dock Company did have express power to buy and sell land, the making of said loan was not the exercise of a power reasonably incidental to or implied from the power to sell land. And counsel further contend that the master’s finding that this loan was made out of the surplus funds of the Dock Company is not warranted by the evidence. At the conclusion of their written argument counsel state: “It is the common misfortune of the complainant and the unsecured creditors who are represented by plaintiff in error that Allen Conkling became bankrupt. If Mr. Conkling were today solvent, * . * * the unsecured creditors could enforce payment of their claims, and the Dock Company, although it could not foreclose its trust deed, could bring an action for money had and received, and * * * recover its money. * * * The Dock Company cannot profit by its own wrong and now enforce an ultra vires security, and thus recover its claim in full while other creditors take nothing.”

Counsel for the complainants contend (1) that by the language of the Dock Company’s special charter express power is given that company to loan money; (2) that the loan in question was proper as an incident to the sale of said lots in Block 139 to Conkling; (3) that said loan was valid as an investment of surplus funds of the Dock Company; and (4) that as Conkling received the benefits of the loan both he and the trustee of his bankrupt estate are estopped, under the facts of this case, to deny the power of the Dock Company to make the loan.

In the discussion of the first point counsel for complainants contend that while the Dock Company was not authorized under its special charter to engage in the business of loaning money, it was expressly given power to lend money whenever such action might be reasonably incidental to the accomplishment of any legitimate corporate object, or whenever it had moneys on hand upon which it might desire to earn interest. Section 1 of the charter states that the Dock Company “may purchase, possess and occupy real and personal estate, and may sell, lease and employ the same in such manner as it shall determine.”. And counsel argue that money is personal property, that the right given to the company to employ personal estate includes the right to employ money “in such manner as it shall determine,” and that to so employ money includes the right to lend money whenever reasonably incidental to any legitimate corporate purpose, and such lending is not expressly prohibited or is not against public policy.- There is force in counsel’s argument. We do not find in the Dock Company’s special charter, granted March 10, 1869, any express prohibition against its making such a loan as the one in question and taking security therefor. And we do not think that it was then, or is now, contrary to public policy for a corporation to make such a loan. Section 1 of the present general act concerning corporations (J. & A. Tf 2418), which was passed in 1872; provides that ‘ ‘ corporations may be formed in the manner provided by this act for any lawful purpose except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money.” This does not mean that the occasional or incidental lending of money by corporations, or the formation of corporations, for the purpose of engaging in the business of loaning money, is prohibited by the policy of the law, but does mean that corporations may not be formed under said act of 1872 for the purpose of engaging in that business. Stevens v. Pratt, 101 Ill. 206; Brown v. Scottish-American Mortg. Co., 110 Ill. 235. The Dock Company’s special charter was granted before said Act of 1872 was passed, and the evidence shows that it was not engaged in the business of loaning money.

By section 1 of its special charter the Dock Company was expressly given power to purchase and sell real estate. The evidence shows that at the time the loan in question was made it was possessed of considerable real estate which it was desirous of selling. Even assuming that the Dock Company did not have express power under its charter to make the loan in question, we think it had implied power so to do, as reasonably incidental to the sale to Conkling of said lots in Block 139. 3 Thompson on Corp., sec. 2181; Kraft v. West Side Brewery Co., 219 Ill. 205; Union Water Co. v. Murphy’s Flat Fluming Co., 22 Cal. 621, 629; Holmes, Booth & Haydens v. Willard, 125 N. Y. 75, 81; Central Lumber Co. v. Kelter, 201 Ill. 503, 507. And we think that the loan was valid as an investment of the surplus funds of the Dock Company. 1 Clark & Marshall on Priv. Corp., see. 186; Bank of Berwick v. George Vinson Shingle & Mfg. Co., 132 La. 861, 863; Garrison Canning Co. v. Stanley, 133 Iowa 57, 60; Western Boatmen’s Benev. Ass’n v. Kribben, 48 Mo. 37, 43; Laughlin v. Chicago Ry. Equipment Co., 182 Ill. App. 280, 291. We cannot agree with the contention of counsel for defendant, viz., that the finding of the master that the loan was made out of the surplus funds of the Dock Company is not warranted by the evidence. Murry Nelson, Jr., president of the Dock Company, testified to the effect that at the time of the making of the loan the company had surplus funds in its possession from which the loan was made, and his testimony was not contradicted.

And, assuming that the Dock Company did not have express power to make the loan, we are of the opinion that as Conkling received the full benefits of the loan the defense of ultra vires cannot prevail under the facts disclosed. Bradley v. Ballard, 55 Ill. 413, 417; Darst v. Gale, 83 Ill. 136, 140; Kadish v. Garden City E. L. & Bldg. Ass’n, 151 Ill. 531, 537; Rector v. Hartford Deposit Co., 190 Ill. 380, 389. The making of the loan was not an act which was prohibited by the Dock Company’s charter, or one which it could not under any circumstances perform. Neither can we say that it was an act which was wholly outside of the general scope of the powers conferred upon it by the legislature. The present case is to be distinguished, we think, from the cases of National Home Bldg. & L. Ass’n v. Home Sav. Bank, 181 Ill. 35; Fritse v. Equitable Bldg, & L. Society, 186 Ill. 183; Steele v. Fraternal Tribunes, 215 Ill. 190; Converse v. Emerson, Talcott & Co., 242 Ill. 619; and Mercantile Trust Co. of Illinois v. Kastor, 191 Ill. App. 219.

For the reasons indicated the decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John F. Devine, Administrator, Defendant in Error, v. Anna B. Gilmore, Plaintiff in Error.
    Gen. No. 20,774.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.

      Statement of the Case.
    Action of replevin by John F. Devine, as administrator of the estate of Orrin F. Place, deceased, against Anna B. Gilmore to recover possession of six certificates of stock in the Saratoga G-old Mining Company alleged to be of the value of $11,000.
    The writ was returned by the sheriff on August 21, 1911, showing that the defendant had been personally served on July 27, 1911, but that upon demand the defendant had refused to turn over said property. The cause was put at issue and came on for trial before a jury in June, 1912. During the trial said certificates of stock were produced by the defendant to be used as evidence, and the same were admitted in evidence, and the court verbally ordered that the same be impounded in the hands of the clerk of the court for safekeeping, and as evidence, and that they be retained by said clerk until further order of the court. On June 27, 1912, the jury returned their verdict in which they found the defendant guilty and that the right to the possession of the property was in plaintiff, and assessed plaintiff’s damages at the sum of one cent. On July 13, 1912, which was the last day of the June term, 1912, of said court, the defendant’s motion for a new trial was denied and the court entered judgment ‘ ‘ that the plaintiff do have and retain the property replevined herein by virtue of the writ of replevin issued in said cause and do have and recover of and from the defendant his damages of one cent in form as aforesaid by the jury assessed together with his costs and charges in this behalf expended and have execution therefor.”
    An appeal from the judgment was at once prayed by said defendant to this court and allowed upon her filing her appeal bond in the sum of $5,000 within thirty days, but the appeal was not perfected.
    On July 26,-1912, after the term at which said judgment was entered had passed, the court caused the following order to be entered of record in said cause:
    “It is hereby ordered that the certificates of stock in the Saratoga Gold Mining Company of Arizona issued to Orrin F. Place, as follows:” (here follows a description of said certificates) “introduced as evidence in the above cause be and they are hereby impounded in the hands of the clerk of this court for safekeeping and as evidence and be retained by said clerk until further order of this court. It is further ordered that this order, the same having been verbally made in said cause on the 13th day of July, 1912, be now entered nunc pro tunc as of said 13th day of July, 1912.”
    Early in February, 1914, more than eighteen months after said judgment of July 13, 1912, was entered, plaintiff moved the court for an order of the court directing said clerk of the court to turn over said certificates to plaintiff’s attorneys. The probable reason for plaintiff’s seeming delay in attempting to get the actual possession of said certificates of stock, which had been impounded with said clerk as aforesaid, is explained by the facts contained in the record of the case of Gilmore v. Bidwell, 191 Ill. App. 152. It appears that on July 25, 1912, after the judgment in the present case had been entered in said Circuit Court, and one day before said nunc pro tunc order was entered, said Anna B. Gilmore commenced an action in replevin in the Superior Court of Cook county against said clerk of the Circuit Court to recover the possession of said certificates of stock, that said clerk refused to turn the same over to the sheriff under the writ, and that thereafter certain proceedings were had which resulted in said Superior Court entering a judgment in said replevin action, on January 29, 1914, in favor of said clerk of said Circuit Court. Anna B, Gilmore appealed to this court from said judgment of the Superior Court and on January 25, 1915, that judgment was affirmed.

      Abstract of the Decision.
    1. Replevin,—when court may impound property. Where, in replevin to recover certificates of stock, defendant on demand under the writ refused to deliver same to the sheriff, but on the trial they were introduced in evidence, the court had power to order them impounded with the clerk for safe-keeping until the further order of the court and pending verdict and judgment in the action.

      2. Motions, § 12

      —when order entered nunc pro tunc not disturbed. Where on the trial of a replevin suit 'the court verbally ordered the impounding of the subject-matter of the action, its action at a subsequent term in entering a written order to the same effect nunc pro tunc will not be held erroneous in the absence of an affirmative showing to the contrary in the bill of exceptions.
    3. Replevin, § 162*—when order affecting disposal of impounded property proper. Where upon the trial of a replevin action to recover certificates of stock the court ordered the impounding of such certificates after their introduction in evidence, a subsequent order made eighteen months after judgment in the replevin action, directing that such certificates be turned over to tbe attorneys for the successful party, is proper.
    4. Judgment, § 600*—when proceeding to enforce is collateral. A proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding.
    John T. Booz, for plaintiff in error.
    Beach & Beach, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Continental and Commercial Trust & Savings Bank, Administrator, Appellee, v. Illinois Terra Cotta Lumber Company, Appellant.
    Gen. No. 20,800.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Action by Continental and Commercial Trust & Savings Bank, as administrator of the estate of William J. Newburn, deceased, plaintiff, against Illinois Terra Cotta Lumber Company, a corporation, defendant for personal injuries sustained by plaintiff’s intestate.
    From a judgment for fifteen hundred dollars recovered by plaintiff, as administrator, against defendant, defendant appeals.
    The action was commenced on July 28, 1909, by Newburn against defendant Terra Cotta Company. Subsequently Frederick Ayer and Wells Brothers Company were made additional parties defendant. On June 30, 1913, Newburn died from causes not claimed to have resulted from said injuries and, upon his death being suggested, the Continental and Commercial Trust & Savings Bank, as administrator of Newburn’s estate, was substituted as plaintiff. The jury returned a verdict finding the defendant, Frederick Ayer, not guilty and the defendants, Terra Cotta Company and Wells Brothers Company, guilty, and assessed plaintiff’s damages at fifteen hundred dollars. Both of said last named defendants entered motions for a new trial. On March 28,1914, on motion of plaintiff the cause was dismissed as to the defendant, Wells Brothers Company, and the motions of the defondant, Terra Cotta Company, for a new trial and in arrest of judgment were overruled, and the judgment appealed from was entered.
    Evidence disclosed the following material facts: Newburn was a structural iron worker employed by Wells Brothers Company, the contractor who had charge of the erection of the building on which he was working. During the morning of the day of the accident Newburn and several other employees of Wells Brothers Company were engaged in putting a section of a smokestack into position in the basement of the building. There was a nine by twelve opening in the first floor. This opening was also in the second and third floors above, but not in the fourth floor. The accident occurred about two o’clock on the afternoon of June 14, 1909. At this time Newburn and a co-employee were standing upon a plank laid across the opening and engaged in the work upon the stack. At this time also certain tile setters, employees of the Terra Cotta Company, were working between the third and fourth floors, right over where Newburn and other coemployees were working. These tile setters had been working there all day. The workmen below could look up through the opening, or shaft, and see the tile setters at work. A piece of tile fell and struck New-burn on the head. The witness Zimball testified: “The first I saw was when it hit Newburn. I was standing alongside of him and I caught hold of him. * * * He leaned against me and I found that something had hit him on the head.” The witness Rapp old testified: “While we were standing there a piece of tile came down and hit Newburn on the head. I first saw it as it was falling down, after it hit Newburn, just about striking the floor. I noticed that the tile broke. It was a half tile.” He further testified that he had been on the third floor a few minutes before the accident ; that about three men were then working for the Terra Cotta Company between the third and fourth floors; that they were standing on “horses” which rested on planks across the opening; that there were then no other men in the vicinity of the openings, and that while there were other men on the third floor the nearest of them to the opening was about fifty feet. After the accident Newburn appeared dazed and blood was running from his wounds. On the same day he was sent to a physician employed by Wells Brothers Company, who examined and treated him. This physician testified on the trial that upon that examination he found a lacerated wound of the scalp, slightly over an inch in length, on the back of the head; that there was also a small puncture wound, which was superficial; that the lacerated wound necessitated two stitches; and that “there was apparently a slight involvement of the outer table of the skull, a slight depression.” On the day following the accident New-burn was seen near the building with his head bandaged. Another physician, who examined him on the second day after the accident and subsequently treated him from time to time, testified that there was a depression in the skull; that his right pupil was dilated, that there was a general tremor of the left hand and arm, and that these conditions lasted about a week. Still another physician, who examined him about forty days after the accident, testified that under the larger wound there was a depression of the skull, that Newburn was pale, and that there was a tremor of his hands and his reflexes were exaggerated, showing an unstable condition of the nervous system. New-burn was laid up and unable to work for about two months and lost in wages about two hundred and forty dollars. He commenced working again on August 16, 1909, but did not do heavy manual labor. He was employed as foreman by different employers, and on one job acted as superintendent, receiving higher wages until his death than he received at the time of the accident. Mrs. Webber, a sister of Newburn’s wife, testified that prior to the accident he was in perfect health; that after the accident when she talked with him he would seem confused and would talk about something else; that he acted this way up to the time of his death, but never did so prior to the accident. Mrs. Buchanan, with whom Newburn boarded for nine months during the eighteen months prior to his death, testified that “he had sort of a dreamy way a great deal of the time,” and that “he got off from one subject to another.” Another witness testified to the effect that about a year after the accident he noticed that, while Newburn was apparently in good health, he “would try to tell something and forget it,” and that “he would start off on another subject, or stop in the middle of a sentence and think a while before he would speak again.”
    It is alleged in the third count, in substance, that on June 14, 1909, Frederick Ayer was the owner of a certain building then in course of erection in the city of Chicago; that said Wells Brothers Company was a contractor engaged in the erection of said building and that said Ayer and said Wells Brothers Company had charge, control and supervision of the erection thereof; that the Terra Cotta Company was also engaged upon said building, laying tile above where deceased in his lifetime was then working; that deceased was then and there a servant of Wells Brothers Company, working under its direction at the bottom of a certain opening which extended upward through numerous floors of said building; that “it was then and there the duty of the defendants, and each of them, to exercise ordinary care for the safety of the deceased and to protect deceased from falling objects”; that it was also the duty of the Terra Cotta Company “to exercise care in the handling of its tile at the place aforesaid”; yet the defendants “negligently and carelessly failed to cover or protect the openings in said floors aforesaid,” and the Terra Cotta Company “also negligently and carelessly failed in the handling of its said tile to prevent said tile from falling through said openings,” so that, by reason of the said several acts of commission and omission of said defendants, and while deceased was in the exercise of due care for his own safety, and while the defendants and each of them knew, or in the exercise of ordinary care should have known, of the dangers to the deceased in his work there, “a piece of tile fell down through said openings and struck the deceased with great force and violence,” whereby he was greatly and permanently injured, etc.
    Abstract of the Decision.
    I. Appeal and error, § 1695

      —when general averments presumed in favor of pleader. After verdict, on motion in arrest of judgment or on appeal, everything which by fair and reasonable intendment may he inferred from the general averments of the count will be presumed in favor of the pleader.
    2. Negligence, § 120*—when negligence and breach of duty sufficiently alleged. Declaration in action by workman for personal injuries caused by fall of a piece of tile, examined and held sufficient, after verdict, to support a finding that defendant was guilty of negligence and breach of duty.
    3. Master and servant, § 351*—when employee not bound to anticipate negligence of employees of another. One employed in a work on which employees of another are also engaged is not hound to anticipate negligence on the part of such other employees, and it is a question for the jury, on the facts, whether he had any reason to anticipate danger in the absence of such negligence.
    4. Master and servant, § 302*—when assumption of risk not in

      volved. The question of assumed risk is not involved where the relation of master and servant does not exist.

      R. P. Garrett, for appellant; Zimmerman, Myers & Garrett, of counsel.
    H. E. Wynekoop, for appellee; Morse Ives, of counsel.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

5. Appeal and error, § 1411 —when verdict not disturbed where evidence conflicting. In an action to,recover for personal injuries alleged to have been caused by negligence, the verdict will not be disturbed where the evidence is conflicting.

6. Appeal and errob, § 1466*—when calling widow of plaintiff’s decedent not reversible error. In an action for personal injuries to one who died before trial, the fact that his widow was called as a witness is not reversible error on the ground that it influenced the amount of the verdict, where the only fact to which she testified was that she was his widow and it was shown by other witnesses that .he was married at the time of his death.


author: Mr. Justice Smith

text:
    John Guminski, Appellee, v. Robert Tarrant, Appellant.
    Gen. No. 20,669.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Action by John Guminski, plaintiff, against Robert Tarrant, defendant, for personal injuries.
    From a judgment for plaintiff for five thousand dollars, defendant appeals.
    Plaintiff had been employed for nearly three years by defendant prior to his injury. He operated a drill press, helped build scaffolds, swept floors, repaired belts and did general work.
    At the time of the injury plaintiff was working by himself, repairing a belt which ran horizontally along the ceiling of the factory from the main shaft to a countershaft about twenty-five feet. He reached the belt by means of a ladder upon which he stood while engaged in the work. The belt had been drawn off the pulley onto the shaft and was so slack as it lay on the shaft that it did not turn as the shaft revolved. It was further prevented from turning with the revolving shaft, while the plaintiff was making the repairs, by means of a monkey wrench which had been fastened on the west edge of the belt about fourteen inches from the shaft, holding the two strands of the belt together. The shaft ran east and west and the belt north and south. He was between the two shafts near the north shaft. In some manner his hand was caught between the belt and shaft or pulley and the injury resulted. There was a conflict in the evidence as to how his hand was caught.
    The cause was submitted to the jury on five counts. The first and fifth counts were based respectively upon common-law liability. After the plaintiff rested his case, all but the second count were abandoned. Two other counts, called amended counts, were then filed. An amended count was also filed in place of the fifth count. A separate plea of the general issue and of the statute of limitations was filed instanter to both the amended counts. The court sustained the plaintiff ’s demurrer to the plea of the statute of limitations to both counts.
    The defendant’s theory of the case was that the plaintiff was free to use and did use his own methods in repairing the belt, and the fact that he was engaged to repair the belt was itself notice to him that the belt was out of repair. The plaintiff relied upon the negligent order and nonrealization of danger and specific directions as to how the belt should be repaired.
    Defendant contended that the original first count was based upon a violation of a statute, and that the amended first count was based upon the common-law liability, and introduced a new cause of action, and was barred by the statute of limitations.
    It was further contended that the evidence showed that the accident did not and could not have happened as the plaintiff claimed; that when the plaintiff was hurt and called for help, the ladder on which he was standing was in an entirely different position from its position at the time he was repairing the belt; that the top of the ladder was leaning against a trussrod that helps to support the center of the beam which runs through the ceiling. The top of the ladder was slanting towards the north and the bottom was slanting south, so that a person standing upon the ladder would be facing north, whereas the ladder, while the plaintiff was engaged in repairing the belt, was leaning towards the east, and it was argued that the plaintiff had finished repairing the belt and was engaged in putting it on the pulley at the time his hand was caught. There was some slight variance between the testimony of the plaintiff and the plaintiff’s witnesses as to the manner in which the plaintiff’s arm was caught by the belt, and crushed and injured over the revolving shaft, the controversy being as to whether it was carried under the shaft or pulley or was wound over the shaft or pulley by the belt. Plaintiff was alone when the accident happened, and no other person saw the accident.
    The court refused to give the defendant’s third instruction, which read as follows:
    “The court instructs the jury that if you believe from the evidence that the plaintiff was not injured while making repairs to the belt in question, but was injured after he had finished making said repairs and while he was placing the repaired belt back upon the pulley, then the plaintiff cannot recover as to the second count of his declaration, and as to said second count you should find for the defendant.”
    The second count was the only count left in the declaration based on an alleged violation of the statute relating to making repairs on active mechanism or operative part of any machine when it is in motion. It is predicated on the last sentence of section 1 of the Hazardous Machinery Act, Laws of 1909, p. 202 (J. & A. ¶ 5386).

      Abstract of the Decision.
    1. Pleading, § 259

      —when new cause of action not introduced by amendment. Pleadings examined and amendment held not to introduce a new cause of action.
    2. Appeal and error, § 1401*—when verdict not disturbed when not against weight of evidence. Where the verdict cannot he said to he against the weight of the evidence, on questions of fact, it will not he disturbed.
    3. Appeal and ebbob, § 1560*—when refusal to give instruction not based on evidence not error. Where there is no evidence in the record upon which an instruction could be predicated, the refusal to give it is not error.
    4. Appeal and ebbob, § 1466*—when exhibition of injured members to jury not error. In an action for personal injuries, where the testimony as to the nature and permanence of the injury are such as to make it appear that the jury were not improperly influenced in fixing their verdict by the exhibition of plaintiff’s injured members to them, the exhibition of such members is not ground for reversal.
    5. Master and seevant, § 375*—when knowledge of defect does not prevent recovery by servant. Even though an employee knows of the defective condition of a belt, where he does not know or appreciate the danger that the belt may be caught upon a revolving shaft, he is not precluded from recovering for injuries caused by its catching.
    The plaintiff was permitted to exhibit his forearm and hand to the jury over the objection of the defendant. It was urged by the defendant that there was no issue or controversy in the case as to the nature and extent of the injury, and that the exhibition of the plaintiff’s hand and arm to the jury was calculated to highly inflame the minds of the jury and not to prove any issue of fact in the case.
    Bulkley, More & Tallmadge, for appellant.
    Elmer, Cohen & Belasco, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Amie I. Adams, Defendant in Error, v. Edward S. Adams, Plaintiff in Error.
    Gen. No. 20,757.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed May 25, 1915.
    Statement of the Case.
    Bill for divorce by Amie I. Adams, complainant, against Edward S. Adams, defendant, on the ground of defendant’s habitual drunkenness for the space of more than three years.
    For complainant there were two witnesses,—herself and her brother-in-law, Dr. Small. The complainant’s testimony was full and circumstantial, covering the last six years of the married life of the parties, and was fully supported by Dr. Small’s evidence, which further showed defendant’s physical and mental condition to be due to alcoholism. The evidence also supported the allegations of the bill as to the faithful performance by complainant of her duties and obligations as wife.
    Defendant, who was personally served, did not enter his appearance, and a decree was rendered against'him by default, to reverse which decree he prosecutes this writ of error.
    Haight, Brown & Haight, for plaintiff in error.
    Rosenthal & Hamill, for defendant in error; Charles H. Hamill, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Divorce, § 45 —when evidence sufficient to support decree. Evidence in suit for divorce on ground of habitual drunkenness examined and Held to support a decree for complainant.


author: Mr. Presiding Justice Baume

text:
    Tribune Company, Defendant in Error, v. Anna B. Wendell, Plaintiff in Error.
    Gen. No. 19,214.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fishes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed June 1, 1915.
    Statement of the Case.
    Action by Tribune Company, a corporation, plaintiff, against Anna B. Wendell, defendant, for money due for-advertising, under a written contract under seal, executed by defendant’s husband in his individual capacity.
    The plaintiff’s statement of claim was as follows: “Plaintiff’s claim is for money due for advertising inserted in the Chicago Tribune under the terms of a certain contract in writing executed April 9,1910, said contract was executed by E. E. Wendell, husband of the defendant herein who is herein sued as the -undisclosed principal of said E. E. Wendell, who as her agent in the conduct of the tailoring business known as E. E. Wendell controlled and operated by the defendant herein executed said contract.”
    The affidavit of claim stated that there was due the plaintiff $636.36. Defendant’s affidavit of merits set forth as grounds of defense that defendant never authorized said E. E. Wendell to enter into any agreement with the plaintiff on her behalf, never ratified said agreement, nor entered into any agreement with the plaintiff; that plaintiff sued and recovered judgment for $636.36 and costs against E. E. Wendell, husband of defendant, upon the same cause of action, in the Municipal Court on April 24, 1911, on which judgment an execution was issued and returned no part satisfied; that plaintiff had knowledge and notice, prior to bringing said suit against said E. E. Wendell, that he was the agent of defendant, and that plaintiff, having elected to hold the said agent upon the same cause of action in said prior suit, is estopped from holding defendant thereon.
    Abstract of the Decision.
    1. Principal and agent, § 180

      —when undisclosed principal cannot he held on contract under seal hy agent. Where the agent for an undisclosed principal executes a contract under seal in his individual capacity, the principal cannot be held liable thereon, even though the contract would have been valid without seal.
    Upon the close of all the evidence, at the trial of the case before a jury, the court instructed the jury to return a verdict for the plaintiff, and upon the verdict so returned judgment was entered against defendant for the amount of the claim. This writ of error is prosecuted to reverse such judgment.
    The contract sued on was under seal and executed by E. E. Wendell, the husband of defendant, in his individual capacity.
    The record disclosed that prior to the commencement of the present suit against defendant, plaintiff brought suit in the Municipal Court against E. E. Wendell upon the same cause of action, and there recovered a judgment against him for the like amount.
    Alvin E. Stein, for plaintiff in error.
    Shepard, McCormick & Thomason, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Principal and agent, § 180 —when undisclosed principal cannot be held liable as partner on contract by- agent in his individual capacity. An undisclosed principal cannot be held liable on a contract by the agent under seal and in his individual capacity on the theory that the principal and agent were copartners where they are not sued as copartners.

3. Principal and agent, § 180*—when undisclosed principal not held liable on contract by agent under seal and in individual capacity. In an action on a contract for advertising, executed under seal by an agent in his individual capacity for an undisclosed principal, the fact that the contract states that the advertising therein was for the business “of the advertiser,” does not render the principal liable, though she was, in fact, conducting the business, where the contract expressly refers to the agent as the advertiser.


author: Mb. Presiding Justice Baume

text:
    The People of the State of Illinois for use of Israel Benjamin, Appellee, v. William A. Snyder et al., on appeal of The Title Guaranty & Trust Company, Appellant.
    Gen. No. 19,299.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 1, 1915.
    Statement of the Case.
    Suit by the People of the State of Illinois for the use of Israel Benjamin, plaintiff, against William A. Snyder and The Title Guaranty & Trust Company, a corporation, defendants, principal and surety respectively, on the official bond of Snyder as constable.
    Service of summons was had upon the surety only, and judgment was recovered against it for $3,000 debt and $2,270 damages. From this judgment, defendant Trust Company appeals.

      The declaration alleged the election and qualification of Snyder as constable, the giving of the bond sued on and its approval by the county clerk, and assigned as a breach of its conditions that one L. E. Huston on June 30, 1906, before a justice of the peace in Cook county, obtained two judgments against Tobias D. Lande, one for $200 and the other for $133; that on July 21, 1906, executions were issued on both said judgments and placed in Snyder’s hands for service; that on July 31st, following, said Snyder levied upon and carried away certain described jewelry, clocks, watches, fountain pens and store furnishings belonging to Israel Benjamin, of the value of $2,000; that said Benjamin, before or at the time of said levy, informed said Snyder that he, Benjamin, was the owner of said goods and chattels and protested against said Snyder levying upon and taking and carrying away the same or any part thereof. The issues were made upon three pleas filed by defendant Trust Company : First, non est factum, unverified, and not now relied upon; second, a denial that Benjamin was damaged; and third, a denial that Benjamin was the owner of the goods and chattels levied upon.
    Defendant’s plea averring that the property in question was hot the property of Benjamin was, by leave of court, filed by it upon the close of the evidence for plaintiff, and it «was insisted that the verdict of the jury upon the issue made by this plea was against the manifest weight of the evidence.
    It was contended by defendant that in July, 1906, when the constable levied the executions upon the property in question, said property belonged to the judgment debtor, Lande, and not to Benjamin. The only substantial controversy upon the trial in the court below related to this issue.
    Some time prior to February, 1906, Lande was adjudged a bankrupt, and on or about February 10, 1906, the assets of said bankrupt, including a portion of the property here involved, were struck off and sold to Benjamin for Ms Md of $2,125, and the trustee of said bankrupt’s estate was directed to turn over such assets to Benjamin.
    The testimony disclosed that Benjamin paid for the property with Ms certified check for the amount of Ms bid;-that the property was then in the store brnlding formerly occupied by the judgment debtor, Lande, and where, prior to his bankruptcy, he conducted the jewelry business; that at the time of the purchase of the property by him, Benjamin was twenty-one years of age and was a clerk in the employ of a firm doing a wholesale jewelry business; that he borrowed from various parties the greater part of the money which he paid for the property; that immediately upon Ms purchase of the property he procured a consignment of diamonds from the firm by which he was employed and mingled the same with the stock of goods so purchased by him; that he directed Lande to put Ms, Benjamin’s, name on the outside of the store, and that he then, also placed on the front of the store a piece of paper whereon were written or printed the words, “I. Benjamin is the owner of this property;” that on the signs in front of the store, whereon appeared the name “T. D. Lande,” he caused to be placed immediately above said name printed signs whereon appeared in small letters the words, “I. Benjamin, successor to;” that he personally did nothing with the property from the time he purchased the same in February, 1906, until it was levied upon by the constable in July following.
    Defendant disclaimed upon the trial any purpose of showing that any part of the money which Benjamin paid for the property was obtained from or belonged to the judgment debtor, Lande.
    Sheriff, Dent, Dobyn & Freeman, for appellant.
    Edward H. Morris, for appellee,

      Abstract of the Decision.
    1. Appeal and error, § 1466

      —when admission of incompetent evidence as to admitted matters harmless error. The admission of incompetent evidence to prove admitted matters is harmless error.
    2. Sheriffs and constables, § 95*—when plea of non damnificatum admits breach of bond. In an action on the official bond of a constable to recover for a wrongful levy of an execution, the plea of non damniflcatum admits a breach of the condition of the bond.
    3. Execution, § 309*—when evidence sufficient to establish ownership of property in action, for wrongful levy. Evidence in action against surety for constable to recover on official bond for wrongful levy of execution, examined and held sufficient to support verdict showing ownership of the property in plaintiff.
    4. Evidence, § 76*—when statements of officer part of res gestee in action for wrongful levy. In an action to recover on the official bond of constable for wrongful levy, statements by the officer at the time of the levy and in connection therewith are admissible as part of the res gestee.

    5. Evidence, § 366*—when question calling for conclusion inadmissible. A question which calls for a conclusion of the witness is properly excluded.

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

   Mb. Presiding Justice Baume

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Plaintiff in Error, v. John H. Peterson, Defendant in Error.
    Gen. No. 21,167.
    1. Intoxicating liquors, § 19

      —when ordinances of village of Hyde Parle in effect before annexation control issuance of dramshop license. The ordinances of the village of Hyde Park relative to the licensing of dramshops which were in effect at the time the village was annexed to Chicago are still effective.
    2. Intoxicating liquors, § 58*—when renewal license for dram-shop invalid where original license invalid. Under ordinances which require that an application for a dramshop license shall be signed by a majority of the property owners according to frontage on both sides of the street, and that where a license has been issued upon such an application, another application shall not be necessary for a renewal license unless objection is made in the manner provided by the ordinance, a renewal license issued on an original license which did not have the requisite number of consents to its application is invalid.
    3. Intoxicating liquors, § 38

      —'when property owner signing application for issuance of dramshop license may revoke consent. A property owner signing an application consenting to the issuance of a dramshop license may revoke his signature or consent at any time before the application has been acted upon finally by the proper tribunal.
    4. Intoxicating liquors, § 38*—when revocation of signatures to application for original license invalidates renewal license. On an information in the nature of quo warranto questioning the validity of a renewal dramshop license in the Hyde Park district of Chicago, it appeared that the ordinances of the village of Hyde Park, before its annexation to Chicago, required that the application should be signed by a majority of the property owners according to frontage and that the time for which it was granted should not extend beyond the municipal year in which it was granted, the latter provision being also contained in the Cities and Villages Act, art. V, par. 46 (J. & A. j[ 1334); that the ordinances of the city of Chicago divide the saloon license year into two periods, from May to November and November to May, and provide that no .license shall extend beyond the 30th day of April next following its issuance; that the application for the original license on which the renewal license was based was filed April 2nd for a period from May 1st, following, to November 1st; that a license for that period, dated May 1st, was delivered to him on April 14th, after all the investigations had been made and acts performed which the ordinances required; that on April 25th two of the signers of the application withdrew, leaving less than the required number, and notified the mayor and city collector on April 25th and 26th of their withdrawal. Held, that as a consequence of such withdrawal the original license was improperly issued and invalid and the renewal license was, therefore, invalid.
    Error to the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed June 4, 1915.

      Maclay Hoyne, for plaintiff in error; Church & McMurdy, of counsel.
    George F. Barrett, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This was an information in the nature of a quo warranto tried before the court without a jury on an agreed state of facts and pleadings, which raised the question of the validity of a license for a dramshop in that part of Chicago that was formerly the village of Hyde Park.

The ordinances of that village, relating to the licensing of dramshops, have remained in force since its annexation to the city of Chicago. Under them an application for a license to keep a dramshop is required to be 1 ‘ signed by a majority of the property owners, according to frontage on both sides of the street in the block in which said dramshop is to be kept;” but a person making such application and receiving a license thereunder £ £ shall not be required to present an application as above in order to obtain a renewal of the license,” unless objection thereto is made as therein provided.

The license here attacked was for the period of November 1, 1913 to May 1, 1914, and was a renewal of a license issued May 1,1913 for the period of May 1 to November 1, 1913, on an application signed as above provided; and it is conceded that if the original license was invalid, then the subsequent license, depending, as it did, on the validity of the original license, was also invalid. While the period for the exercise of the privileges under the license attacked has already expired, it is recognized that the proceeding still has vitality in that it involves the right to successive renewals of the license provided for as above stated.

Said ordinances provide that “the license shall state the time for which it is granted, which shall not extend beyond the municipal year in which it shall be granted” and, unless sooner revoked, “shall expire with the end of the current fiscal year.”

The ordinances of the city of Chicago provide:

‘ ‘The saloon license year is hereby divided into two periods, from May 1 to November 1, and from November 1 to May 1. Licenses may issue for the full license year or for the unexpired portion thereof, or for any period of the unexpired portion thereof * * * provided that no license shall extend beyond the 30th day of April next following its issuance Paragraph 46, article V of the Cities and Villages Act (J. & A. 1334), prohibits the extension of a license “beyond the municipal year in which it shall be granted.”

The following facts calling for application of these various provisions were agreed upon: That Peterson filed his original application for a license April 2, 1913, for the period from May 1 to November 1, 1913; that a license for that period, dated May 1, 1913, was delivered to him April 14, 1913; that before it was delivered the official investigations were made and acts performed which the ordinances required; that the application was signed by the requisite number of property owners, but that two of them withdrew their signatures and consent on April 25th, notices of which were delivered to the mayor and the city collector, April 25th and 26th; and that the signature of each party was necessary to give the requisite frontage consent before a license 'could be legally issued.

The court found the issues for defendant.

The right to revoke one’s signature or consent to an. application or petition of such nature before it has been finally acted on by the proper tribunal to pass upon it is not questioned. The exercise of such right under the very ordinances under consideration was upheld in Theurer v. People, 211 Ill. 296. The subject and authorities relating to it were fully discussed in that case and Littell v. Board Sup’rs Vermilion Co., 198 Ill. 205. In each of the cases involving the question the withdrawal of signatures or consents requisite to confer jurisdiction on the tribunal required to determine the matter was deemed sufficient to deprive it of jurisdiction to issue the license or permit when such withdrawal was made before the petition had been finally acted on. And it unquestionably follows that where the jurisdictional facts exist at the time the tribunal finally acts upon the petition, a subsequent withdrawal of consent would not oust it of jurisdiction.

Whether the final act be the decision to issue the license, as defendant in error contends, or the issuance thereof, it will be conceded that all the jurisdictional facts necessary to authorize its issuance must exist when such action is taken, and that until then consents thereto are revocable. The pertinent question then is, was there jurisdiction to issue the license when it was delivered or when the revocations were made? That presents for inquiry whether the mayor had authority to issue the license before May 1st, when the period for which it was issued began.

The several provisions of the statute and ordinances above quoted contemplate, in our opinion, that a license shall not be issued until the period “in which” it is to be operative shall commence. The statute expressly provides that the license cannot extend beyond the municipal year in which it may be granted. In conformity therewith the Hyde Park Ordinance provides that the time for which it is granted shall not extend beyond the municipal year in which it shall be granted. The Chicago municipal year ends April 30th, and its ordinances - provide that no license shall extend beyond the 30th day of April next following its issuance. From such provisions it is manifest that licenses for any portion of the calendar year after April 30th must be issued after that time. Obviously it was for that reason that the license in question, be ing for such a period, was dated May 1st. That was the legal date of its issuance. It could not speak nor confer any right before the date it purported to be issued. Nor under the construction above given was jurisdiction complete for the issuance of a license for any part of the municipal year beginning May 1st, until that year had begun. It follows, therefore, that as final action on the application in question could not have been legally taken until May 1st, the right of revocation existed up to that time, and no vested right in the license resulted from its delivery before it could be legally issued. It did not purport on its face to have legal existence or official sanction before May 1st, and any attempt at final action before that time .was unauthorized and ineffectual either to confer rights upon the licensee or to defeat those belonging to the signers of the application and the property owners and householders they represented.

Against this conclusion we see little force to the argument of inconvenience. Whatever it might cause should be subordinated to the rights of the public as disclosed in the intent and purposes of the laws regulating the sale of intoxicating liquors. This construction does not prevent consideration of an application or taking the official steps preliminary to the issuance of the license, but renders delivery of the license ineffectual for any purpose before it can lawfully issue. Nor is one seeking the privilege a license, confers, which belongs to no one as a matter of right, in any position to urge the inconvenience he may be subjected to in acquiring such privilege or arranging therefor.

Inasmuch, therefore, as no final action could have been taken on such application before May 1st, when the license was in fact dated, and as the revocations of consent necessary to its issuance were made before that date, the license was unauthorized and invalid. It follows that there was no right to the renewal thereof and that the license attacked is invalid for any purpose. The court’s ruling to the contrary on the proposition of law submitted was error, and the judgment will, therefore, be reversed and a judgment of ouster entered in this court.

Reversed.


author: Mr. Justice Scanlan

text:
    Twentieth Century Letter & Advertising Bureau, Defendant in Error, v. National Art & Crayon Company, Plaintiff in Error.
    Gen. No. 20,139.
    1. Municipal Court op Chicago, § 32

      —when statement of set-off does not set up tort. Statement of set-off in a fourth-class case setting forth that a certain person wrongfully and without authority sold certain merchandise of a certain value owned by it to the plaintiff who paid him therefor, that said person took said merchandise from the possession of the defendant without its knowledge, and that plaintiff refused to pay defendant therefor, held not open to objection as setting up a claim in tort in an action upon a contract.
    2. Municipal Court op Chicago, § 32*—when statement of set-off sufficient. The formalities of pleading have been abolished in cases of the fourth class, and a statement of set-off is sufficient if it apprises the plaintiff of the nature and character of the demand against it.
    3. Principal and agent, § 191*—what not a ratification. Statement of set-off in a fourth-class case alleging that a certain person wrongfully and without authority took merchandise of a certain value owned by the defendant and Sold it to the plaintiff, collecting therefor, and that plaintiff refused to return such merchandise or to pay defendant for same, held not bad on the theory that defendant thereby ratified the wrongful act of such third person, and made him its agent.
    4. Municipal Couet of Chicago, § 32

      —what need not he alleged in statement of set-off. A statement of set-off averring that a certain person wrongfully and without authority sold merchandise owned by it to plaintiff and collected therefor, and that plaintiff refused to pay defendant for such merchandise or return the same, need not allege that the goods in question were converted into money or money’s worth by the plaintiff.
    5. Municipal Court of Chicago, § 32*—when statement of set-off does not claim unliquidated damages. Statement of set-off held not bad as claiming unliquidated damages.
    Error to the Municipal Court of Chicago; the Hon Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    W. Knox Haynes and Michael Feinberg, for plaintiff in error.
    Chester A. Macomic, for defendant in error.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The Twentieth Century Letter & Advertising Bureau, a corporation, defendant in error, hereinafter called the plaintiff, brought an action of the fourth class in the Municipal Court of Chicago against the National Art & Crayon Company, a corporation, plaintiff in error, hereinafter called the defendant, to recover $808.14, alleged in the statement of claim filed by the plaintiff to be due and owing it for the use and privilege of copying the names and addresses contained in certain letters, the property of the plaintiff. The defendant filed an affidavit of merits admitting that it received merchandise from the plaintiff to the value of $714.66, but claiming that it had a set-off against the plaintiff’s claim to the amount of $670, and that there was therefore due the plaintiff from the defendant $44.66. Thereafter, by leave of court, the defendant filed a statement of set-off (to which was attached an affidavit of defendant’s claim) in words and figures as follows:

“Statement of Claim for Defendant.
Defendant’s claim is for the following merchandise purchased by plaintiff from W. J. Pomeroy and by him delivered to plaintiff for which plaintiff paid to said W. J. Pomeroy the sum of $577.00. That defendant never authorized said W. J. Pomeroy to either sell said merchandise or deliver the same to plaintiff or collect said money therefor. That said Pomeroy took said merchandise without the knowledge or consent of this defendant from the possession of defendant. That immediately upon the discovery by this defendant of the unlawful and wrongful taking of said merchandise by said Pomeroy it notified the plaintiff that said merchandise belonged to defendant and demanded the same of plaintiff, but that plaintiff has refused to return the same or pay the defendant therefor; Which merchandise so delivered to the plaintiff by said Pomeroy, and the fair and reasonable
market value thereof is as follows:
August 1, 1912, 7000 National Art Letters at $15 per thousand........................ 105.00
August 1,1912, 8000 Martel Blow-out Protect- or Co. letters at $7.00 per thousand........ 56.00
September 11, 1912, 4500 Martel Blow-out Protector Co. letters at $7.00 per thousand 31.50 September 11, 1912, 5000 National Salesman
Letters at $7.00 per thousand............ 35.00
September 11, 1912, 3000 National Art letters at $15.00 per thousand.................. 45.00
July 2, 1912, 5,500 National Art letters at $15.00 per thousand...................... 82.50
July 2,1912, 45,000 Martel Blow-out Protector Co. letters at $7.00 per thousand........ 315.00
$670.00.”

The defendant also filed a demand for a jury trial. The plaintiff entered a motion to strike the statement of set-off of the defendant from the files, and the court sustained the said motion and also entered judgment in favor of the plaintiff for $714, and “the court reserves for future determination and adjudication the matter of the balance of the plaintiff’s demand claimed in said plaintiff’s affidavit of claim and the matter of whether further costs shall be allowed herein to either of the parties to this cause. It is further ordered that the court retain jurisdiction herein and that this suit proceed as to said portion of the plaintiff’s demand in dispute as if the suit had been brought therefor.” This writ of error followed.

The defendant contends, first, that the court erred in striking the defendant’s statement of set-off from the files and in entering judgment for the plaintiff; second, that even if it be held that the court was justified in striking the defendant’s statement of set-off from the files, still the denial by the court of the defendant’s motion for leave to file a new statement of set-off was a serious and prejudicial abuse of discretion; and third, in any event the court erred in entering judgment for a larger amount than $44.66— the amount admitted by the defendant’s affidavit of merits to he due the plaintiff.

After a careful consideration of the defendant’s first contention, we have reached the conclusion that it is meritorious and calls for a reversal of the judgment entered by the Municipal Court in this case. We see no good reason, nor has any been called to our attention by counsel for the plaintiff, why the defendant’s statement of set-off should have been stricken from the files and judgment entered in favor of the plaintiff for $714.

The plaintiff argues in support of the court’s action in striking the defendant’s statement from the files that ‘ ‘ the matter of set-off constitutes a tort which cannot be set off as against a contract. ” It is a sufficient answer to this (Contention to say, that even under the common-law rules of pleading, the defendant would have the right to waive the tort and to sue in assumpsit, and we are unable to see how it can be held, under the rules governing pleadings in fourth-class actions in the Municipal Court, that the defendant’s statement of set-off is predicated upon a claim in tort. The defendant did not name the form of its action nor was it obliged to. The formalities of pleadings have been abolished by statute in cases of the fourth class, and the defendant in its statement was simply obliged to apprise the plaintiff of the nature and character of the demand against it; it would not be precluded from recovering on its set-off merely because the facts alleged in its statement would support an action at common law, in some other form than assumpsit, nor would such circumstance justify the court in holding that the defendant’s set-off constituted a claim in tort.

The plaintiff insists that if it be held that the defendant’s statement of set-off is a waiver of the tort, then it must also be held that the said statement does not set up a good claim in assumpsit, because if the defendant in said statement relied upon the subject-matter of the tort as an implied or quasi contract, he would, by treating the transaction as a contract, not only ratify the sale of the goods by Pomeroy, but also the payment made to the latter by the plaintiff and, therefore, his claim in assumpsit would fail. This contention of the plaintiff is predicated upon the theory that the defendant’s statement of set-off (if it is held to be a claim in assumpsit) is an election by the defendant to treat Pomeroy as its agent in the matter of the sale. We think the plaintiff misinterprets the theory of the set-off. Giving the set-off the reasonable and liberal construction that should be accorded to statements in cases of the fourth class, we find that it alleges, in substance, that Pomeroy took certain merchandise (describing it), belonging to the defendant, from its possession without its knowledge or consent and sold it to the plaintiff; that the plaintiff received the merchandise and paid Pomeroy for the same; that immediately upon the discovery by the defendant of the said unlawful taking, it notified the plaintiff that the said merchandise belonged to it and that it had been unlawfully taken from it by Pomeroy; that the defendant demanded that the plaintiff restore the said property to it, but that the plaintiff refused to restore the same or to pay the defendant therefor, and that the fair and reasonable market value of the said merchandise (itemizing the various articles) is $670. The set-off presents a case of an owner of property, that has been unlawfully and wrongfully taken from him and sold by the wrongdoer to a third party, expressly repudiating the said sale and, as the owner of the property, demanding from the third party the return of the same or payment for it. There is a specific denial by the owner of the authority of the wrongdoer to sell the merchandise, and there is nothing alleged from which it could be held that there was a ratification of the said sale by the owner. The set-off treats the transaction, not as a sale by an agent of the defendant to the plaintiff, but as a wrongful appropriation of the goods- of the plaintiff by the defendant for which it is liable to the plaintiff in assumpsit ; nor was it necessary, to entitle the defendant to recover in assumpsit, that it should allege in its statement that the goods in question were converted into money or money’s worth by the plaintiff. City of Elgin v. Joslyn, 36 Ill. App. 308, affirmed in 136 Ill. 525; Toledo, W. & W. Ry. Co. v. Chew, 67 Ill. 378; Donovan v. Purtell, 216 Ill. 629. There is certainly no good reason why a less liberal rule should be adopted in a fourth-class case in the Municipal Court. If the statement of set-off were drawn on the theory that the defendant ratified the sale of the goods by Pomeroy to the plaintiff, the case of Bailey v. Pardridge, 134 Ill. 188, so strongly relied upon by the plaintiff in support of its contention, would apply and would control.

The plaintiff insists that the court’s action in striking the defendant’s statement of set-off from the files was justified, for the reason that the set-off of the defendant “was for unliquidated damages arising out of a different transaction from that for which suit was brought, and hence was properly stricken from the files.” There is no merit in this contention, as it is very clear from the defendant’s statement of set-off that the damages claimed are not unliquidated.

If we are correct in the conclusions that we have heretofore expressed, it follows that the court erred in striking from the files the defendant’s statement of set-off and in entering judgment for the plaintiff for $714, and, as this error requires a reversal of the judgment in this case, it is entirely unnecessary for us to notice the defendant’s other contentions. The judgment of the Municipal Court of Chicago will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    A. E. Bertling, Defendant in Error, v. Oxweld Acetylene Company, Plaintiff in Error.
    Gen. No. 20,175.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    Statement of the Case.
    The plaintiff was allowed to testify over the objection of the defendant that after the collision the chauffeur in charge of defendant’s automobile got out of his automobile and walked to where the plaintiff was standing by his own machine and said: “My steering knuckle broke and I couldn’t help it; send the bill to the Oxweld Company; I called the attention of my boss to the condition of the steering knuckle, and that it was defective; send in your bill to the Oxweld Company and they will fix it up all right.”
    Abstract of the Decision.
    Evidence, § 80

      —when declaration Toy employee not part of res gestw. Statement by chauffeur in charge of automobile colliding with another, attributing the collision to the defective condition of his steering knuckle, made after the collision and while plaintiff was standing beside his machine, held not part of the res gestee.

    Upon a trial without a jury, plaintiff recovered judgment for $112.50, from which defendant brings error.
    Sears, Meagher & Whitney, for plaintiff in error; Edwin Hedrick, Jr. and John W. McCarthy, of counsel.
    George H. Fenn and William M. Lawton, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Jones, Coates & Bailey, Appellant, v. Kellogg Switch-Board & Supply Company, Appellee.
    Gen. No. 20,261.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914. Rehearing denied May 8, 1915.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by Jones, Coates & Bailey, a corporation, against Kellogg Switchboard & Supply Company, a corporation, in the Municipal Court of Chicago, in an action of the first class to recover damages for the alleged failure of the defendant to perform a contract made with the plaintiff for “knock down boxes.”
    The correspondence constituting the contract was as follows:
    “Chicago, March 24, 1910. Kellogg Switchboard & Supply Co.,
    434 South Green St.,
    Chicago.
    Gentlemen:
    We beg leave to submit you prices upon knocked down boxes for your requirements for a year. These boxes to be the same as the ones we are delivering to you today; the lumber to be matched.
    In case you should require any wooden frame fibre boxes for express shipments, the price will be 5% more. In case you desire any boxes made from 1 inch lumber, for export and other shipments where you should have heavy lumber, our price for these boxes, knocked down and delivered at your place will be all figured upon a basis of $25 per thousand lumber feet, with 15% added for waste. These boxes are to be made of good solid lumber, free from knot holes and rot, and are to be dressed and matched.
    Tours truly,
    Jokes, Coates & Bailey, (Signed) B. B. Bailey.

      No. 91 25x11x13% ..........................244

    No. 92 25xl9%xll ..........................31*
    No. 93 25xl9y4xl9y2 ......■..................43¿
    No. 97 25xl2%xl3% ........................26<¡¡

    No. 98 25x19%xl2%.........................33^
    No. 99 25x21%xl9%........................45f”
    On the following day, the defendant, through its purchasing agent, handed to Mr. Bailey the following letter *
    “Chicago, March 25, 1910.
    Jones, Coates & Bailey,
    1014 N. Halsted St.,Chicago, 111.
    Gentlemen:
    We shall be pleased to purchase from you, our requirements of knock down boxes, styles as per sample submitted and at prices per list submitted March 24, for at least a year from date.
    Yours very truly,
    Kellogg Switchboard & Supply Co.
    By (Signed) O. C. Schoenwerk,
    , Purchasing Agent.”
    Thereafter plaintiff having received no orders for boxes wrote defendant as follows: .
    “Chicago, June 1, 1910. Kellogg Switchboard & Supply Co.,
    Congress & Green Sts.,
    Chicago.
    Gentlemen:
    We desire to call your attention to our contract for furnishing you with all your requirements in knock down boxes, per your acceptance of March 25, 1910, and request that we receive your specifications for delivery without further delay. It is now two months since you entered into this contract and since the date thereof we have continuously been ready to furnish you boxes according to the agreement, and have frequently called your attention thereto and requested your specifications. We shall expect to hear from you promptly, with directions.
    Yours truly,
    Jones, Coates & Bailey,

      (Signed) B. B. Bailey, Vice-President. ’ ’
    To the above letter the defendant replied as follows:
    “Chicago, June 2, 1910.
    Jones, Coates & Bailey,
    1014 Hooker Si,
    Chicago, 111.
    Gentlemen:
    Beplying to yours of the 1st would state that in our letter of March 25th, we merely agreed to purchase from you, our requirements of knocked down boxes of the style as per sample submitted by you and this would leave us the privilege of purchasing any other styles of boxes, which are different from said sample. We also state, merely our requirements and no specific quantity. Should we have any requirements of your style, we certainly shall purchase them from you.
    Tours truly,
    Kellogg Switchboard & Supply Co.
    By (Signed) O. C. Schoenwerk,
    Purchasing Agent.” No orders were ever received by the plaintiff from the defendant under the contract 'and this suit was commenced on October 24,1911.
    From a judgment for defendant upon a trial without a jury, plaintiff appeals.
    Joseph Cummins, for appellant; Michael Lyons, of counsel.
    Henry S. McAuley and Carleton A. Shults, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Sales, § 64 —when contract provides for supplying all requirements. A letter submitting an offer to furnish defendant with the “knock down boxes" it would need in its business for a year, stating the character of the boxes it proposed to furnish, the materials to be used in the same, the various sizes of the boxes to be furnished and the costs of each size, and a letter in reply thereto agreeing to purchase the defendant’s requirements of knock down boxes for one year from date, styles and price list as per samples and price list submitted, constitutes an unambiguous contract, the plaintiff thereby agreeing to furnish and the defendant agreeing to purchase all of the knock down boxes which the defendant would require from the date of acceptance of the contract.


text:
    Frank Keishkowski, v. Harry Bostrom, Appellant, on appeal of Harry Bostrom. John W. Sutton, Petitioner, Appellee.
    Gen. No. 20,308.
    (Not to he reported in full.)
    Appeal from the Circuit .Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Frank Keishkowski sued the appellant, Harry Bostrom, in the Circuit Court of Cook county and recovered a judgment ag’ainst him for seven hundred dollars. John W. Sutton was the attorney of record for Keishkowski in the said suit. The appellant took an appeal from the said judgment, and while the same was pending, Keishkowski, against the advice and wishes of Sutton, settled the judgment for one hundred and fifty dollars. Seventy-five dollars of this amount was offered to Sutton in full of all claims for legal services he might have against Keishkowski hut he refused the offer, staling that he had a contract with Keishkowski by the terms of which he was entitled to one-half of the amount of the judgment. Sutton then filed in the Circuit Court of Cook county a petition to enforce against the appellant, Harry Bostrom, a claim for attorney’s lien, under section 55, ch. 92, Hurd’s R S. (J. & A. 611). The appellant filed an answer to the said petition. A jury was waived and the cause was submitted to the court. Evidence was presented in support of the petition and the answer, and thereafter “the court listened to arguments of counsel * * * at the conclusion of which the court stated
    he would render his decision later.” Thereafter the court notified both parties that he would render his decision in the case on August 27, 1913. On" the last mentioned date, the parties to the proceedings being-represented in court by counsel, the court announced that he found that the petitioner Sutton had failed to prove his case, and that there wonld have to be a finding against the petitioner and in favor of the defendant. Thereupon, the attorney representing Sutton asked for a continuance of the case on account of the absence of Sutton, and the court granted the request. On October 16, 1913, the following occurred: “This case again was called for rendering of decision by the court; all parties present. John W. Sutton then asked leave of court to withdraw his petition and take a non-suit, to which request the defendant by his attorney objected, stating as grounds therefor, that as the petitioner and the defendant had both argued the case fully to the court, submitted their briefs and authorities, and that the case has been fully and finally submitted to the court for final decision which the court was now ready to render, the petitioner is not now entitled to withdraw his petition, dismiss or non-suit his case; and as the court had announced his readiness to render Ms decision, and even expressed what the decision would be, this case shouM now be decided by the court and not dismissed.” The trial court overruled the said objection of the defendant and granted leave to the petitioner “to withdraw and dismiss his petition and non-suit his case,” which was done over the objection of the defendant. This appeal followed.
    Abstract of the Decision.
    Dismissal, nonsuit and discontinuance, § 15*—when nonsuit must be talcen on trial by court. Under R. S., ch. 110, sec. 70 (J. & A. ¶ 8007), where a case is tried before the court without a jury and is submitted for final decision, the plaintiff cannot take a nonsuit.
    O. C. Peterson, for appellant.
    No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.