text:
    Rothschild & Company, Appellee, v. Steger & Sons Piano Manufacturing Company et al., Appellants.
    Gen. No. 18,785.
    1. Injunction—motion to dissolve. For the purpose of a motion to dissolve a preliminary injunction an answer substantially admits the essential allegations of part of the bill where it either expressly admits or neither admits nor denies them.
    2. Injunction—what matters of defense not considered on motion to dissolve. Upon hearing for the dissolution of a preliminary injunction the court will not consider new matters of defense which confess and purport to avoid the material allegations of the bill, where such new matter is controverted.
    3. Estoppel—when defendants cannot question right to use trade name. Upon motion to dissolve a preliminary injunction restraining defendants from using the name “Meister” as a trade name for pianos, defendants, in the absence of any serious or specific charge of fraud in the making of such a contract, are estopped from questioning complainants’ exclusive use of the name, where they, prior thereto, entered into a written agreement not to use the name in the piano business, conceded to complainants the sole and exclusive right to its use and agreed that such agreement should be considered as conclusive evidence by any court of equity of complainants’ right to a preliminary injunction, and that such an injunction should be made permanent on hearing.
    4. Trade-mark—when refusal to consider complainants’ right to use proper. Upon motion to dissolve a preliminary injunction the court may properly refuse to consider complainants’ legal right to use the term “Meister” as a trade-mark where defendants previously agreed by contract that it was a proper subject of a trade-mark and that they would not dispute it for the purposes of an injunction or the dissolution of an injunction restraining its use.
    5. Injunction—right to have motion to dissolve heard on bill and answer responsive thereto. Upon bill to enjoin the use of a trade name the complainant has a right to have a motion to dissolve a preliminary injunction heard on. the bill and on the answer and affidavits directly responsive thereto.
    6. Injunction—when complainant not chargeable with fraud because bill did not anticipate defense. Complainant is not chargeable with fraud and suppression of material facts or with fraud on the court in filing its bill and obtaining a preliminary injunction restraining defendants from using the word “Meister” in the piano business, because the bill did not anticipate the contention, denied by it, that defendants entered into a contract with it for the manufacture of such pianos, some of which it refused to accept.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 12, 1912.
    Frederick Mains, for appellants.
    Judah, Williard, Wolf & Reichmann and Alvin W. Wise, for appellee.
   Mr. Justice F. A. Smith

delivered.the opinion of the court.

This cause comes before us upon appeal by the defendants from an order of the Circuit Court of Cook County, entered July 12, 1912, overruling a motion of the defendants for the dissolution of the injunction issued by said court in this cause upon November 29, 1911, whereby the defendants were enjoined from selling, advertising or offering for sale pianos bearing the name “Meister” or pianos represented by them to be “Meister” pianos.

The bill of complaint sets forth facts showing, first, that by reason of appropriation, adoption and use for many years prior to the filing of the bill of complaint, the complainant had acquired, under the principles of the common law, the exclusive right to use the trademark and trade name “Meister” in the sale of pianos; that, afterwards, on the 25th day of December, 1906, the complainant caused said trade-mark to be registered and recorded in the United States patent office.

The bill then shows in the second place, that on the 8th day of April, 1907, upon a bill filed by the complainant in the Circuit Court the complainant secured an injunction against the defendant, Steger & Sons Piano Manufacturing Company, from using the word “Meister” as a trade-mark or trade name for pianos; and that afterwards, while the said suit was pending and the said injunction was in force, on September 2,1909, an agreement was made between the complainant and all the defendants whereby the complainant stipulated and agreed to release the defendants from all claim from damages for past unlawful use of said trade-mark “Meister” and to dismiss its said suit in consideration whereof all of the defendants stipulated and agreed that they would never at any time directly or indirectly infringe upon or use said word “Meister” in any way in the piano business, but would at all times concede and accord to the complainant the sole, absolute and exclusive right to use said name as a trademark or trade name' in the piano business; and further stipulated and agreed that should they or any of them at any time thereafter, either directly or indirectly, violate in any respect any of the .terms or the intent or spirit of said agreement, then the said agreement should in such event be considered by any court of equity, in which the complainant might cause its bill for an "injunction to be filed, as conclusive and indisputable evidence of the right of the complainant to a preliminary injunction immediately and without notice, enjoining the defendants from selling, advertising or offering for sale any pianos having thereon the name “Meister,” and from violating in any manner said agreement according to its true intent and meaning; and the defendants also thereby stipulated and agreed that upon the hearing, such injunction should be made permanent, and that they would never question complainant’s right to such injunction nor the jurisdiction of a court of equity to issue the same; and the bill shows that upon the execution of said agreement, copy of which is attached to the bill and pursuant to its provisions, the said prior suit was dismissed.

The bill in the third place shows, that nothwithstanding the complainant’s right to said trade-mark and their said agreement, the defendants were advertising and offering* for sale pianos bearing the name “Meister,” and pianos stated and represented to be “MeisT ter” pianos, and a copy of an advertisement inserted in Chicago newspapers by the defendants was attached as an exhibit to the bill; that the advertisement stated that the defendant Singer Piano Company, in November, 1909,- made a contract with a State street department store, meaning the complainant, under which it had made and delivered to said store over four thousand pianos, but that it had since discontinued manufacturing pianos for said store, and had on hand three hundred and fifty-two pianos manufactured for said store which the defendant, the Singer Piano Company, would sell at manufacturer’s price, as it was not looking for profit from said sale.

The foregoing allegations, together with the usual allegations showing the irreparable injury to the complainant, and that the complainant was without remedy except in a court of equity, are the substantial allegations of the bill.

The answer filed by the defendants to the bill expressly admitted, or neither admitted nor denied, and, therefore, for the purpose of a motion to dissolve, substantially admitted the truth of each and all the essential allegations of fact of the bill.

The answer expressly admitted the continuous use by the complainant in its piano business of the trademark “Meister,” and neither admitted nor denied the date of its adoption by the complainant, nor that the name, since its adoption, had been exclusively used by the complainant, and neither admitted nor denied the registration of said trade-mark by the complainant in the United States patent office; but the defendants claim in their answers as a matter of law that such trade-mark could not be: lawfully appropriated or registered by the complainant because it was descriptive.

The answer expressly admitted that the complainant oh or about April 3, 1907, filed its prior bill of complaint as alleged in the bill, and that an order for a writ of injunction was issued in said suit as alleged, and that on the second day of September, 190-9, the agreement was entered into as set forth in the bill of complaint.

The answer expressly admitted that the defendants at the time of filing of complainant’s bill for a short, time prior thereto were selling, advertising and offering for sale certain pianos bearing the name “Meister,” and that they had advertised as shown by the advertisement attached as an exhibit to the bill.

The answer, after thus admitting and confessing the essential averments and equities of the bill of complaint, set out that subsequent to the making of the contract of September 2, 1909. the complainant ordered from the defendants many pianos bearing the name of “Meister,” made pursuant to a written proposition containing specifications submitted by the defendants to the complainant on October 22, 1909, from which course of dealings defendants claimed that an implied contract arose, whereby the defendants were authorized to advertise and sell pianos bearing the name “Meister” made pursuant to said specifications; and the answer averred that the complainant had refused to accept a number of pianos made pursuant to said proposition, and the defendants claimed the right to advertise and sell “Meister” pianos, not generally but such as had been manufactured pursuant to said alleged contract.

The answer then avers that the complainant misrepresented the pianos sold by it under the name of “Meister” by reason of which defendants claimed that the complainant came into court with unclean hands.

In the next place the answer averred that, inasmuch as the complainant in its bill had not advised the court of its alleged unclean hands and of said alleged contract, claimed by the defendants to give them the right to sell “Meister” pianos manufactured pursuant to specifications submitted to complainant, complainant was guilty of a fraud upon the court in obtaining the issuance of the injunction.

The foregoing in substance sets out the substantial defenses alleged in the answer of the defendants.

After the answer was filed and the complainant had filed its replication thereto, the defendants entered a motion to dissolve the injunction. Prior to the hearing of the motion to dissolve, the complainant served upon the defendants a document termed an amendment to the bill, answering the new matters set up in the answers, which proposed amendment, however, was not filed, the complainant notifying the defendants that it would ask leave to read said proposed amendment as an affidavit upon the hearing of the motion for dissolution.

Numerous affidavits on behalf of the complainant and the defendants, bearing upon the new matter raised by the answer of the defendant, were marked for identification at the hearing of the motion to dissolve, and are contained in the record.

The chancellor, on the motion to dissolve, ruled as a matter of law that the matters of defense not traversing but purporting to confess and avoid the essential equities of the hill of complaint, were not competent for consideration upon the motion for dissolution of the injunction, and declined to consider all such affidavits bearing upon such new matter, it appearing to the court that the contentions of the defendant in the answer and affidavits in support thereof, were controverted and denied by the complainant.

In our opinion the chancellor properly held that upon a hearing for the dissolution of a temporary injunction, the court will not consider new matters of defense which do not traverse but confess and purport to avoid the material allegations and essential equities of the bill of complaint, where such new matter is not conceded to be true but is controverted and denied by the complainant. Mabel Min. Co. v. Pearson Coal & Iron Co., 121 Ala. 567; Armstrong v. Potts, 23 N. J. Eq. 92; Vreeland v. New Jersey Stone Co., 25 N. J. Eq. 140; 2 Spelling Extraordinary Relief, p. 858, sec. 1056; p. 860, sec. 1058’; pp. 862-863, sec. 1061; Johnston v. Corey, 25 N. J. Eq. 311; Lawrence v. Philpot, 27 Ga. 585; Fargo v. Ames, 45 Iowa, 494.

In our opinion the defendants are estopped and precluded by the stipulation and agreement made and entered into by them on September 2, 1909, from questioning the complainant’s right to the exclusive use of the name “Meister” as a trade-mark or trade name for pianos upon this motion. Ft. Stanwix Canning Co. v. McKinley Canning Co., 49 App. Div. (N. Y.) 566; People v. Spring Lake Drainage & Levee Dist., 253 Ill. 479.

We do not in thus holding intend to pass upon the question of estoppel arising upon the contract of September 2, 19091, any further than to hold that upon the hearing of a preliminary motion, such as a motion to dissolve, it should have the effect to estop the defendants from questioning the right of the complainant to the exclusive use of the name “Meister” as a trademark or trade name for pianos, in the absence of any. serious or specific charge of fraud in the mating of the contract. Our attention has not been called to any fraud shown in the .record in procuring the execution of the contract by the defendants. We are of the opinion that the chancellor properly refused, under the facts and circumstances set up in the bill of complaint, to go into and consider the question as to whether the term “Meister” is or is not subject to appropriation as a trade-mark. The defendants, on September 2, 1909, agreed that it was the proper subject of a trademark and that they would not dispute it for the purposes of an injunction or the dissolution of injunction restraining them from using it in any way; this stipulation was sufficient, and the court mig*ht reasonably,' on the preliminary motion before it, decline to consider the legal right of the complainant to appropriate the term “Meister” as a trade-mark.

We do not think that because the complainant did not anticipate in its bill the contentions and assertions of the defendants as to the existence of a contract, made subsequent to the contract of September 2, 1909, above mentioned, for manufacturing pianos for the complainant, which alleged contract it controverts and denies, it can be chargeable with fraud and suppression of material facts, or with fraud upon the court in filing its bill and obtaining a preliminary injunction. The material allegations of the bill are not denied. Matters outside of the rig’hts of the complainant as set forth in the material averments of the bill are set up in the answer and affidavits, which, on final hearing, may or may not affect the equitable rights of the complainant to a decree; but, pending the final hearing by the court, the complainant has a right, under the authorities cited above, to have the motion now before us heard upon its bill and upon the answer and affidavits directly responsive to the averments of its bill. It is therefore unnecessary for us to discuss the other propositions argued in the briefs. The facts alleged in the bill being in effect admitted, we think the chancellor did not err in denying the motion to dissolve. The order is affirmed. . Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Jane C. Vansant et al., Appellees, v. Alvida A. Rose and Frank A. Rose, Appellants.
    Gen. No. 18,931.
    1. Injunction—when decree is proper. Where the breach of restrictive building covenants has been enjoined and the case decided on a former appeal adversely to the defendants, if additional points raised by the defendants do not appear to be well taken the decree should be affirmed.
    2. Injunction—when decree enjoining breach of covenant should be limited. A decree enjoining the breach of restrictive building covenants may properly cover the term fixed in the covenants.
    Injunction. Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 12, 1912.
    Lee & Lee, for appellants; Albert M. Kales, of counsel.
    Hollett, Sauter & Henkel and Wilson, Moore & McIlvaine, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This cause was before this court at the last terra on an appeal from an interlocutory order granting an injunction, which order was affirmed on April 19, 1912.

In the meantime, on March 11, 1912, the defendants, appellants, filed their joint and several answer to the bill of complaint. To that answer the complainants filed nine exceptions. On May 18, 1912, by leave of court, the defendants filed certain amendments to their answer, and on the same day three exceptions were taken by the complainants to the amendments to the answer of the defendants. The cause proceeded to a hearing and a final decree on May 28, 1912, in which decree the exceptions filed by the complainants to certain portions of the answer as amended were sustained, and making findings in accordance with the averments of the bill, and adjudging and decreeing that the defendants be enjoined and restrained from committing any breach of the reservations, restrictions, conditions and covenants set forth in the bill of complaint, and from erecting or causing or permitting to be erected within thirty feet of the front or east line of said lots and within thirty feet of the side street line of said lot 1, namely, the north or Grlenlake avenue line of said lot, any wall of any building on said lots during a period of twenty years from and after the 6th day of September, 1901, and from erecting or causing or permitting to loe erected upon the said lots any flat or tenement building during the same period, or any building other than a single private dwelling house, except a stable which shall be built on the alley line of said lots.

From that decree this appeal is prosecuted. Errors are assigned upon the sustaining by the Circuit Court of the exceptions made to the answer and amendments thereto, and in entering the decree for injunction.

In the opinion filed by this court on the appeal from the interlocutory order granting the injunction, in Vansant v. Rose, 170 Ill. App. 572, the averments of the bill are set" out and the fundamental questions of law involved upon the averments of the bill are discussed, and that opinion is made a part hereof by reference.

The briefs of appellant filed on the present hearing contain, in addition to the points made on the injunction appeal, three points: First, that the injunction should have been denied because the facts set up in the answer and amendments show that it is entirely inequitable and unconscionable by reason of the changed condition of the neighborhood and other facts and circumstances that it should be granted; second, that there was no breach of the restrictive covenant in question by the erection of the high-class apartment building described in the answer; third, that the decree is erroneous in enjoining the defendants from acting in breach of the restriction during the entire period of twenty years from 1901. The decree at the most should be limited to an injunction to restrain building at the present time.

The findings of the decree appear to be based on the pleadings.

Upon a due consideration of the additional points made in the brief and argument of the appellants, we are of the opinion that the points against the decree are not well taken, and the decree is accordingly affirmed.

Affirmed.


author: Per Curiam.

text:
    Mary McCaffery et al., Appellants, v. John McAndrews et al., Impleaded with United Breweries Company, Appellees.
    Gen. No. 16,547.
    1. Dismissal and NONSUiT-^uAew dismissal for want of prosecution is proper. If, on a plaintiff filing a challenge to an array of jurors, a demurrer to the challenge is properly sustained and plaintiff elects to stand by the challenge and declines to proceed with the trial, the suit may be dismissed on motion of defendant for want of prosecution.
    2. Jury—when municipal court judges may not participate in selecting jury commissioners. On a challenge to an array of jurors in the circuit court of Cook county, it is no objection that the judges of the Municipal Court of Chicago did not participate in the selection of the jury commissioners drawing the panel.
    3. Municipal courts—status. The Municipal Court of Chicago is a court “in” Cook County but not “of” Cook County and the judges thereof are not entitled to participate in the selection of jury commissioners of Cook county:
    4. Jury—when acts of de facto commissioners valid'. If judges of the Municipal Court of Chicago are entitled to participate in the selection of jury commissioners of Cook county, but do not participate, the acts of such Ae facto commissioners in drawing a panel are not thereby invalidated.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 17, 1912.
    Carl A. Ross, for appellants.
    Rogers & Mahoney, for appellees; J. Kentner Elliott, of counsel.
   Per Curiam.

The plaintiffs, who are appellants

here, brought suit under the' Dramshop Act of Illinois, to recover damages against John McAndrews, Ellen McAndrews and The United Breweries Company resulting from the sale of liquor to one James McCaffery. John and Ellen McAndrews were served with process. The United Breweries Company was not. The suit was dismissed for want of prosecution under the following circumstances:

The cause was regularly reached for trial upon the trial calendar of Judge Baldwin in the Circuit Court. A jury was called into the box but not sworn. The plaintiffs filed a challenge to the array of jurors. The defendants, by leave of Court, demurrer ore term-s to the challenge to the array. The court sustained the demurrer. The defendants asked an immediate trial. The plaintiffs elected to stand by their challenge to the array and declined to proceed with the trial. The defendants then asked that the suit be dismissed at plaintiffs’ costs for want of prosecution, to which the plaintiffs objected. The court dismissed the suit for want of prosecution and gave judgment for costs against the plaintiffs. The plaintiffs have appealed to this court from this judgment. We affirm the judgment. There is nothing in any of the causes of challenge set forth in the challenge to the array which meets the tests laid down by the Supreme Court, of our State and cited by the appellants themselves in their argument, that an “irregularity in the drawing of jurors does not invalidate the panel unless fraud has been practiced or some great wrong done,” and that “an act required by the statute to be done is not deemed indispensable if it is but in the nature of a direction as to the course of the proceedings adopted by the legislature to be pursued in order to accomplish the ultimate object of the enactment, and the omission of such an act, or the defective execution thereof, will not work reversal of the verdict of the jury, unless it should appear the cause of the defeated suitor or defendant in a criminal case had been prejudiced by the failure to observe the statute in its strictness.” Healy v. People, 177 Ill. 306.

But we must not be understood as implying any belief that there were any irregularities in the selection of the jurymen in this case, or that the “causes” for challenge stated any. The methods pursued by the jury commissioners complained of in the “challenge” were, after its date, investigated and approved by a committee of judges appointed by the judges of the Circuit, Superior, County and Probate Judges of Cook County, and tlie report was accepted and approved in a joint meeting of all the judges of those courts.

Waiving the question whether a “demurrer to a challenge to the array” does away with the necessity of any proof of the irregularity charged, it is wholly needless for us to enter now into a further discussion of matters thus long since disposed of.

As to the objection that the judges of the Municipal Court of the City of Chicago did not participate in the selection of the jury commissioners drawing the panel, it may be noted that the jury commissioners are by the law to be chosen by the judges of the several courts of record “of Cook County,” not “by the judges of the several courts of record in Cook County.” The Municipal Court is a City Court in but not of Cook County.

Irrespective of this, the acts of de facto officers acting under the law would not be invalidated by the omission stated, even if such participation were allowed by the statute.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    United States Brewing Company, Appellee, v. Dolese & Shepard Company, Appellant.
    Gen. No. 16,460.
    1. Contracts—entirely void where void provisions are not severable. Where a corporation contracts to. build, maintain and operate a saloon and boarding house, and the undertaking as to the boarding is ultra vires and void, the entire contract as to operation is void, since it isi not severable.
    2. Corporations—contract of brewing company to maintain boarding house ultra vires. A corporation organized under the laws of Illinois to manufacture and sell beer, buy and sell brewers’ material and carry on a general brewing business, has no power, express or implied, to maintain and operate a building as a boarding house, even though it is also to use it as a saloon.
    3. Corporations—distinction between ultra vires contract and excessive use of corporate power. Where a brewing company contracts to erect and maintain a building the greater part of which is to be used as a boarding house and remainder as a saloon, such a contract is ultra vires rather than an abuse or excessive use oi corporate power.
    4. Corporations—recovery on implied contract. Where a brewing corporation enter's into an ultra vires contract to build and maintain a saloon and boarding house, it cannot recover on an implied contract while the property is still in its possession.
    Appeal from the Municipal Court of Chicago.; the Hon. Hosea W. Wells, Judge,- presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed November 18, 1912.
    William J. Pringle and Edwin Terwilliger, Jr., for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Walter H. Jacobs, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

On November 8, 1905, the appellant leased to the appellee “for and during a term conmencing on the first day of January, A. D. 1906, and ending the 31st day of December, A. D. 1930, and the said party of the first part” (appellant) “hereby receipts for the rent in full for said term,” certain described premises, being one hundred feet wide by two hundred feet deep on Kane Road in the Village of Hodgkins, Lyons township, Cook county, Illinois. In consideration therefor the appellee agreed “to erect at its own expense and maintain for the entire term aforesaid, unless sooner terminated as hereinafter provided, upon the premises above described, a certain building, and to use and operate the same continuously for the entire term aforesaid, as a saloon and boarding house; said building to cost the sum of six thousand and seven hundred dollars ($6,700).” Plans and drawings of which building were made a part of the contract.

It was further agreed that the appellant “may at any time cancel this contract in the manner following: The first party shall notify in writing the party of the second part of its intention to cancel this contract and each party shall within five (5) days after such notice appoint a representative who shall be known as an appraiser.” It is then stipulated how the said appraisers shall make their valuation of the said improvements ; and in case they cannot agree, for the appointment of a third appraiser, and, upon making theii award, for the payment thereof by appellant, etc., etc. It is then provided:

“It is hereby agreed, however, that in case said first party shall serve the notice above provided for, so that this agreement shall be terminated within three (3) years from the date hereof, or should the district, within which the premises herein demised are located, become a ‘Prohibition or Local Option District,’ so that, on account thereof, it shall be necessary to suspend the saloon business on said premises within three (3) years from the date of this contract, then no such appraisement shall be made, but said first party shall pay to said second party the cost price of the building and improvements on said premises, such cost price not to exceed, however, the sum of ten thousand dollars ($10,-000). Said second party shall deliver, immediately upon payment, all receipts or copies thereof for all expenditures which might be a part of the above mentioned cost price. And failure to so deliver any such receipts or copies shall preclude said second party from including the amounts of any such receipts in said cost price.”

It is also agreed that the appellee “may sublet said premises, but such sub-letting shall in no way release said party of the second part from any of the covenants or liabilties herein provided for.”

The other provisions of the contract are immaterial to a decision of the ease and need not be recited.

The facts material to the issues here considered are practically undisputed. The appellee erected upon the said premises so demised, as agreed, an L-shaped building 24 feet wide by 177 feet long, with the addition thereto 20x30 feet. The portion devoted to saloon purposes was 24x32 feet. The portion devoted to boarding house purposes consisted of a kitchen 24x24 feet, a dining room 24x80 feet and 43 double bedrooms, with wash rooms, etc., and there was also an apartment for the tenant. The appellee thereupon leased the said premises for a saloon and boarding house for a term of ten years at a monthly rental of $200, payable in advance, with a provision that if the lessee, or his assigns purchased from the appellee all beer sold on the said premises, and paid therefor in cash, etc., etc., the appellee would allow the said lessee a rebate of $120.00 on each month’s rent; and the said lessee conducted a saloon and boarding house on said premises.

At an election in the said township of Lyons on April 7, 1908, the said township became prohibition territory. On April 9, 1908, the appellee made a demand in writing upon the appellant that it pay the sum of $10,000.00 under the terms of the said contract by reason of the said territory becoming a prohibition district. The appellant not paying the same, the appellee on August 4, 1908, brought suit on the common counts with a special count declaring on the said contract, as a first-class case in the Municipal Court of Chicago. The cause being submitted to the court without a jury, the court found the issues for the appellee and entered judgment thereon for $8,490l.12, against the appellant.

The appellant contends that the said contract sued upon is ultra vires. The appellee is a corporation organized under the laws of Illinois “to manufacture and sell all kinds of beer, ale and porter; to buy and sell all kinds of brewers’ materials and supplies, and to carry on a general brewer’s business in all its branches.” The learned trial court held inter alia-.

“The Court holds as the law that if the contract of the plaintiff to build a building and operate it as a saloon and boarding house was ulta vires on its part in whole or in part, then such contract was void and could not be ratified by it nor could any performance on the part of the plaintiff give it validity or be the foundation of any right of action upon such contract.”

Also:

“The court holds as a proposition of law that the business of using and operating a building as a boarding house is a separate and distinct business from that of manufacturing and selling beer and buying and selling brewers’ materials and supplies, and carrying on a general brewing business, and that a corporation chartered to manufacture and sell beer and buy and sell brewers’ materials and supplies and carry on a general brewing business, has no powers to contract to use and operate a building as a boarding house, even' though it, as a part of the same promise, contract to also use and operate such building as a saloon.”

We are of the opinion that under the evidence the said contract is not severable as to the undertakings of the appellee to maintain and operate a saloon and boarding house, and if the same is void as to the undertaking by the appellee as to the boarding house, it not being severable as to these undertakings, the contract as an entirety is void. Corcoran v. Lehigh & Franklin Coal Co., 138 Ill. 390; People v. Smith, 130 Ill. App. 407.

In Fritze v. Equitable Building & Loan Soc., 186 Ill. 183, the court say: “Corporations can only exercise such powers as may be conferred by the legislative bodies creating them, either by express terms or by necessary implication. Implied powers are presumed to exist in order to enable such bodies to carry out the express powers granted and to accomplish the purpose of their creation. By an implied power is meant one that is directly and immediately appropriate to the execution of the specific power granted, and not one that has slight or remote relation to it. People v. Chicago Gas Trust Co., 130 Ill. 268; People v. Pullman Car Co., 175 Ill. 125.”

In Best Brewing Co. v. Klassen, 185 Ill. 37, the court say: “Many acts can be suggested which, though beneficial to the business of a corporation, are too remote from its general purposes to be deemed reasonably within its implied powers. What is and what is not too remote must be determined according to the facts of -each ease. The rule has been stated to be: In exercising powers conferred by its charter, a corporation ‘may adopt any proper and convenient means tending directly to their accomplishment, and not amounting to the transaction of a separate, unauthorized business. ’ Clark v. Farrington, 11 Wis. 340.” It is manifest from the evidence that the greater part of the building erected under the said contract was to be and was in fact used as a boarding house. And assuming, for the purpose of this decision, that the appellee was authorized and had the power under its charter to contract to erect and use a building as a saloon, the question is: Had it the right to contract to erect a building and maintain, use and operate the same continuously for twenty-five years as a boarding house ? It is probably true that the operation of the said boarding house would be very beneficial to its business of manufacturing and selling beer. So, too, would likely be the result of the operation in connection therewith of a theater, an amusement park, or many another business that would have the result of bringing to it the consumer. It would seem to us that the contract providing that the appellee maintain and operate a boarding house continuously for twenty-five years would be the undertaking on its part of transacting a separate, unauthorized business clearly within the definition of Best Brewing Co. v. Klassen, supra, and not within the implied powers granted appellee in its said charter, within the definition thereof in Fritze v. Equitable Building & Loan Soc., supra, and said contract was therefore ultra vires as to appellee.

In Steele v. Fraternal Tribune, 215 Ill. 190, the court say: “It is insisted, however, that even though the contract be regarded as ultra vires, yet defendant in error cannot avail itself of such defense, the contract having been performed in good faith by the other party and the corporation had the full benefit of such performance. We cannot agree with this contention. A contract of a corporation which is ultra vires in the proper sense of that term,—that is to say, outside the object of its creation, as defined by the laws of its organization, and therefore beyond the powers conferred upon it by the legislature,—is not only voidable, but wholly void and of no legal effect. The objection to the contract here is, not merely that the corporation ought not to have made it, but that it could not lawfully make it. The contract could not be ratified by either party because it could not have been authorized by either. No performance by the parties could give the unlawful contract validity or become the foundation of any right of action upon it. ’ ’ National Home Building & Loan Ass’n v. Home Sav. Bank, 181 Ill. 35; Best Brewing Co. v. Klassen, 185 Ill. 37; Leigh v. American Brake-Beam Co., 205 Ill. 147; Stacy v. Glen Ellyn Hotel & Springs Co., 223 Ill. 546.

The appellee seems to rely upon Kraft v. West Side Brewery Co., 219 Ill. 205, to sustain its contention that said contract was not ultra vires appellee. In that ease the appellee, the Brewery Co., loaned the appellant $4,000 to erect a building, wherein it was to have the exclusive sale of beer manufactured by the appellee. In that case the court held that under the circumstances the loan was within the implied powers of appellee' and the making of the said loan not ultra vires appellee, saying, “the appellee’s motive was clearly to extend the sale of its product and not to engage in the business of loaning money. ’ ’ The circumstances of that case seem to us quite different from those of the case at bar, where the appellee expressly undertook to maintain, use and operate the greater part of the said building as a boarding house continuously for twenty-five years.

In the consideration of this case the question has suggested itself to us, that if the appellee had the right to contract to erect a building and conduct a beer saloon therein, is not the said contract to be held rather an abuse or excessive use of its corporate powers, than an act unauthorized and ultra vires under the rule announced in Rector v. Hartford Deposit Co., 190 Ill. 380, and Keeley Brewing Co. v. Mason, 116 Ill. App. 603. We think not, for the evidence clearly shows that the greater part of the building was contracted for and used as a boarding house and was not used in the conduct of the saloon, and neither was it necessary therefor. Also the contract here considered was not merely a. contract to conduct a beer saloon for the purpose of promoting the business of the appellee, and under the same an abuse was made of its corporate powers; but the appellee by said contract expressly agrees to erect and maintain the said building and continuously for a term of twenty-five years use and operate the greater part of the same as a boarding house; at the end of which time the said improvements became the property of the appellant. In other words, for the entire term of the said contract the appellee expressly agreed to conduct a business separate from and unauthorized by its charter powers.

We conclude that the trial court was correct in holding the propositions hereinbefore quoted, and that the contract in question was ultra vires appellee and there could be no recovery thereon.

It remains to be considered whether the judgment may be sustained under the common counts. In their brief here counsel for appellee state that the appellee “stands squarely upon the contract itself.” On the trial of the case at the close of all the evidence, the court stated that there was no evidence that the cost price (the only evidence introduced as to the price or value of the improvements) was a fair and reasonable cost price, to which counsel for the appellee agreed and stated that same would have been immaterial, for they were suing on a valid and binding contract. It does not appear from the record, but the appellant states in its brief, that after the cause had been submitted to the trial court on the evidence and briefs, the counsel for appellee on an oral argument contended that even though the contract was ultra vires there was an implied obligation to pay appellee the value of the building. The court refused to hold that there could be no recovery under the common counts, and also refused to hold that there could be no recovery under an implied contract for the reasonable value of the building. It is therefore probable that this was the view taken by the court, finally considering the cost price sufficient evidence upon which to base its findings; in fact no other theory is. deducible from this record upon which a finding might be made for the appellee under the common counts.

There is no evidence that the appellant has served the appellee with any notice of forfeiture of the said contract, as provided therein, or made any attempt to secure the possession of the said premises, or made any demand therefor. On the contrary, the evidence shows, without controversy, that the appellee, by its tenant, was in possession of and conducting a boarding house on the said described premises both at the time of beginning the suit and at the time of the trial. The appellant further offered to prove that at said times the said tenant was in fact, and had at no time ceased, conducting a saloon upon the said premises. This evidence was excluded by the court and said ruling was complained of by appellant as error. Whether the said ruling was erroneous is immaterial for the reason that the evidence shows, without controversy, that the appellee, by its tenant, was in possession of the said premises, using and operating the same as a boarding house. We know of no principle of law that will permit the appellee to retain the possession and use of the said premises, receiving^ the benefit and profit therefrom, and recover from the appellant the reasonable value thereof on an implied contract under the common counts. We therefore disregard the question of the insufficiency of the evidence as to the reasonable value of the said improvements. The theory that the appellee, having paid out money under a contract, now held ultra vires, to avoid an injustice, should be allowed to recover same on an implied contract, is not here applicable, for the reason that the moneys so expended by the appellee is in another form, that is, in the improvements on the said, parcel of land, still in the appellee’s possession and use, with the benefits therefrom.

The facts herein stated are substantially uncontroverted and are in accord with the findings of fact by the Municipal Court.

The said contract being ultra vires appellee and therefore void, no recovery can be had thereon; and the appellee not being able to recover on the evidence under the common counts, the judgment is reversed in accordance with our view of the law applicable to the said facts.

Reversed.


text:
    John F. Devine, Administrator, Appellee, v. American Posting Service, Appellant.
    Gen. No. 16,476.
    1. Conflict of laws—settlement by foreign guardian no bar to action. In an action by an administrator for death of decedent caused by a falling billboard, a settlement by a foreign guardian of decedent’s daughter is no bar to a recovery in this state, since the authority of such guardian is strictly local.
    2. Appeals and errors—error need not be considered where cured by remittitur. The question as to whether the court erred in not permitting defendant to show payment to a foreign guardian need not to be considered where, if there was error, it was cured by remittitur of the amount.
    Action in case for death by alleged wrongful act. Appeal from the. Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 18, 1912.
    F. J. Canty, E. E. Gray and J. C. M. Clow, for appellant; E. Allen Frost, of counsel.
    John S. Hummer and Charles A. McDonald, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee brought suit against the appellant and The Gunning System, both Illinois corporations, to recover damages for the death of Thomas D. Henderson, caused by being struck by a falling sign or billboard from the roof of a building at Nos. 444 to 462% West Madison street, Chicago. The first amended count averred that the said defendants were possessed of and maintained said billboard and were negligent in that they “did not safely construct, securely fasten and maintain the said sign or billboard, but on the said day and for a long time prior thereto wholly neglected their duty in that behalf, and so carelessly and improperly constructed, secured and maintained this sign or billboard that by and through the negligence” the said sign or billboard fell and struck said Henderson, inflicting injuries from which he died. The decedent left surviving him Helen A. Henderson, an infant daughter, for whose benefit the suit was brought. The jury found The Gunning System not guilty and the American Posting Service guilty and assessed the damages at the sum of $5,000. A remittitur of $1,200 was filed, 'and the court denying a motion for a new trial entered judgment against the appellant for $3,800.

The appellant insists that there was no evidence that the sign or billboard in question was in its possession and control and by it maintained; also that there was no evidence that the said billboard was improperly constructed, secured and maintained, as charged in the aforesaid amended count; but if it be considered that there was competent evidence tending to prove the said averments, then it is clear and manifest that the verdict was against the weight of the evidence. We have made a careful examination of the evidence and think it clearly appears that there was sufficient evidence on which to submit the case' to the jury on both of the said averments; and, moreover, we are of the opinion that the verdict was not clearly and manifestly against the weight of the evU dence.

The decedent was a resident of Illinois. Caroline E. Henderson had been divorced from him and was residing in Massachusetts. No claim was made in this case for damages in her behalf. The appellant offered evidence by duly certified copies of the records to prove that the said Caroline E. Henderson, as a resident of Massachusetts, on June 11, 1906, petitioned the Probate Court of the County of Middlesex, said state, to be appointed guardian of Helen A. Henderson, residing at Cambridge in said county and state, the daughter of the said petitioner and the said decedent, born March 10, 1902; that the said petitioner was appointed guardian June 22, 1906, of the said minor, by the said Probate Court, with full power and authority to take possession of all real and personal estate of the said ward and manage and dispose of the same according to law and for. the best interests of said ward and make true account thereof, etc.; that the said petitioner assented to the said appointment and*on June 22, 1906, gave bond in the sum of $400, as such guardian, and same was duly approved, and with said bond was a declaration of the said guardian that to the best of her knowledge and belief there was no real estate or personal property of the estate of the said ward. There was also offered in evidence as a bar to the appellee’s claim a satisfaction piece dated August 24, 1909, duly signed and witnessed, wherein the said Caroline E. Henderson as guardian of the said Helen A. Henderson acknowledged the receipt of the payment of $1,200 by the appellant and thé said The Gunning System in full payment and discharge of all claims, demands, etc., of the said Caroline E. Henderson as guardian of the said estate of Helen A. Henderson against the said companies by reason of the death of the said Thomas D. Henderson. The court excluded all said evidence on the objection of the appellee, who offered, and the court admitted in evidence, Chapter 162 of the Revised Laws of the State of Massachusetts relating to probate Courts.

The appellant insists that said settlement and discharge by the said guardian was a bar to this action, and the court erred in excluding said evidence. The Massachusetts statute introduced in evidence provided: “He (the guardian) shall settle all accounts of his ward and demand, sue for and receive all debts due to him, or with the approval of the Probate Court may compromise the same and give a discharge to the debtor.” The appellant urges that the said settlement was valid because “it does not fall within that class which is supposedly prohibited from being settled without authority first obtained from the Probate Court,” relying upon Manion v. Ohio Valley R. Co., 99 Ky. 504; and also if the said provision of the statute was applicable to the case at bar, the appellant was entitled to the presumption that the guardian conformed her action to the law respecting the transaction when no showing was made to the contrary, and said settlement and release was a bar. Whether such positions might be sustained were this a suit pending in the State of Massachusetts under the statute of that State giving a cause of action therein, we do not stop to consider, for we hold that under the circumstances of this case the said action of the guardian in Massachusetts would not be a bar to the prosecution of the suit here by the appellee.

The appellee was the Public Administrator appointed by the Probate Court of Cook county to administer the estate of the deceased; and brought this action April 13, 1906, to recover on a right of action created by the statutes of this State. In March, 1908, the case was tried and a verdict returned against both of said parties defendant, assessing plaintiff’s damages at the sum of $9,000. This verdict was set aside and a new trial granted in July, 1908. In August, 1909, the representatives of the said defendants made the alleged settlement in Massachusetts with the said guardian.

In 13 Am. & Eng. Ency. of Law (2nd ed.) on page 965 et seq., it is said: “A foreign guardian is a guardian appointed in a country or state other than that of the forum. At the common law a guardian’s authority over both the person and property of his ward is strictly local, and does not extend beyond the state or country of his appointment. In the United States a guardian’s authority is restricted to the state in which the appointment was made, and strictly he can virtute ojficii exercise no rights or powers in any other state over either the person or property of his ward. As a matter of strict legal right a foreign guardian, as such, is not entitled to the custody and control of the ward; he cannot sue, nor as a general rule can he be sued, out of the jurisdiction in which he was appointed; nor is he as foreign guardian entitled to collect money due his ward, or to receive from an executor or administrator the ward’s legacy or distributive share, or to take the property of the ward which is in the possession of a domestic guardian, or to sell the ward’s estate,” citing many authorities in support of said various propositions. See also 21 Cyc., 263, et seq. The guardian in Massaschusetts is in this forum a foreign guardian; and no case has been cited by appellant, and we have found none, that holds, or tends to hold, that a foreign guardian has the legal right to settle and release a right of action created under the statutes of another state for the benefit of his ward, and on which a suit at law is being prosecuted in said other state for the benefit of said ward by an administrator duly appointed and authorized under the laws of the said state to prosecute the said suit. We think that the following authorities tend to support our view of this question: Illinois Cent. R. Co. v. Cragin, 71 Ill. 177; McCleary v. Menke, 109 Ill. 294, 301; Chicago & W. I. R. Co. v. Schroeder, 18 Ill. App. (Brad.) 328; and we hold that the said guardian had no power or authority to make a settlement of this action and her attempt so to do is no bar thereto.

Whether the court erred in not permitting the appellant to show the payment of said $1,200 to the said guardian, duly appointed and qualified under the laws of Massachusetts, for the purpose of receiving a credit therefor by the jury on an assessment of damages, need not be considered for the reason that even if said ruling was erroneous, it was cured by the remittitur of the said amount.

We do not think there is reversible error in the rulings of the court on the evidence, or in the giving or refusing instructions complained of. From the view we take of the case it is not necessary to consider the contention of the appellant that the second count of the amended declaration did not state a cause of action because it failed to state the survivorship of a beneficiary or the contention that the doctrine res ipsa loquitur is not applicable.

The judgment is affirmed.

Affirmed.


text:
    Charles O. Hayward, Appellee, v. The Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 16,499.
    1. Stbeet eailways—when evidence of negligence in operation is sufficient. A plaintiff testified that lie attempted to get on a car of an elevated railroad train nine feet from the end of a platform when the train was standing still, that the gate was wide open and not in motion and that a bell rang as he stepped on. He fell from the car and there was evidence that he was seen falling to the ground. The guards of the train testified that no one attempted to hoard the train in the manner described, that the train was not started until the gates were closed and the signal hell rung and that they were at their posts of duty and did not see any one fall. Held, a verdict for the plaintiff would be sustained.
    2. Damages—when proof of tuberculosis resulting from injury is sufficient. A man fell thirty feet from, a platform, sustaining great injury to his body, suffered great pain and was confined to his bed for four months. His prior health had been good, but since the accident it became poorer and he suffered pains in his head, arms, legs and chest, and lost weight. Four years later he had a severe cough and six hemorrhages of the lung. The attending physician at the time of the accident testified that he then had no lung trouble) but that he had tuberculosis at the time of the trial and that it was caused by a weakened condition from the injury. Held, whether the tuberculosis was the result of the accident was a question for the jury.
    3. Damages—when verdict based upon tuberculosis will not be disturbed. Where a man falls thirty feet from a platform and sustains severe bodily injuries resulting in a weakened condition, there is evidence that tuberculosis resulted four years later, the instructions for the defendant as to the disease resulting from the injury are positive and clear, and a judgment of $10,500 is reduced to $8,000, a verdict based upon his tubercular condition will not bo disturbed.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 18, 1912.
    Addison L. Gardner, for appellant; W. W. Gurley, of counsel.
    Thomas E. Rooney and Ferdinand Goss, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee brought this suit to recover from appellant damages for personal injuries sustained by appellee December 21, 1904, in attempting to board appellant’s train at Forty-second Court, Chicago. On a trial the jury returned a verdict for the appellee, assessing his damages at $10,500.00. A remittitur of $2,500 was filed by appellee, and the court, denying' a motion for a new trial, entered judgment against the appellant for the sum of eight thousand dollars.

In the various counts of the declaration the negligence alleged was, as stated by the appellant: “first, in suddenly and violently starting the train while plaintiff was attempting to board one of the cars thereof; second, in failing to stop the train a reasonable length of time to enable plaintiff to board the same; third, in failure to keep a proper watch or lookout from said train so that the same might not be started before plaintiff had safely entered; and, fourth, in carelessly, negligently, improperly and recklessly driving, managing and operating said car while plaintiff was attempting to board the same.”

The appellant urges here two grounds for reversal:

First: “The court erred in submitting the case to the jury.” The argument seems to be, not that there was no evidence introduced by the appellee tending to prove his cause of action, but that the verdict was clearly and manifestly against the weight of the evidence. The appellee testified that he was on his way to work and was injured about 6:45 on the morning in question. He said on direct examination, quoting from the. abstract of record: ‘ ‘ The front end of the second car was nine feet from the extreme east end of the platform. I started to get on; I stepped on with my left foot and as I stepped on firmly with my foot the car started up suddenly and threw me off my balance against the car and I tried to recover my fall, and at that time I fell, and that is the last I remember. At the time I stepped on the car it was standing still. The gate was wide open. The gate was not in motion. I heard a bell rung as I stepped on. At the time I heard the bell rung the gate was opened. The next thing I knew was the next day at about eleven o’clock, when my brother came from Wisconsin. At that time I was in the West Side Hospital, at Harrison and Ogden.” He fell from the car, near the east end of the elevated station platform, to the ground below,, some thirty feet, and was seriously injured. A witness called by appellee testified that he saw the appellee fallí rig and saw him strike the ground. None of the witnesses called by appellant saw the accident. The testimony of the witnesses for the appellant tended to show that the accident did not, and could not, have happened in the manner claimed by the appellee. The guards on the train in question testified that on the morning in question no one attempted to board the said train at Forty-second Court at their respective places on the cars in the manner described by appellee; that at said time and place after the passengers were all on the cars, the gates were closed and the signals given by bell to the motorman, and the train left said station without their seeing any man fall or any accident, and each remained at his said post of duty until after the train left the said station; that they knew nothing of the accident until told of the same later that day. It is argued that the appellee’s story is improbable and the appellant’s theory is that the appellee attempted to get on the car after the gates were closed and while the train was leaving the said station. We confess that on this record the question presented is a very close one, but after a careful examination of all the evidence we have concluded not to disturb the verdict of the jury on the ground that it is clearly and manifestly against the weight of the evidence.

The second ground for reversal urged by appellee is: “The court erred in not excluding"all testimony as to the tubercular condition of plaintiff.” The appellee testified that when he became conscious at the hospital he had severe pains in his head; that his head was packed in ice and his left arm was in a plaster cast (it was later found to have been broken), and his left' leg in a paralyzed condition; his upper front teeth were broken out, and the left side of his face and body scraped and bruised, and he suffered great pain; that on January 26, 1905, he was taken from the hospital to his brother’s home in Wisconsin; that he was confined to his bed until April; that in April he began to move about with crutches and then with a cane, and about May 1st came to Chicago and worked at odd jobs in the barber business. The sight of his left eye was destroyed; he was lame and weak and suffered much pain. He continued doing light work much of the time up to the time of the trial, but claimed he had been for some time growing weaker and poorer in health, and had much trouble with his eyes, head and lungs. Appellee testified that his left wrist was weak and out of shape and bothered him in change of weather; that his left arm was partially paralyzed and smaller than the right arm, and that he suffered from headaches and pain in the eyes, etc.; that just before the accident he weighed 160 pounds, and at that time was twenty-four years old and in good health, and had no previous trouble with his eyes nor pains in the head, arms, legs, chest or lung trouble, but had a small swelling on the right groin, on which he wore a flaxseed poultice, and thought the swelling had been caused by lifting heavy bolts of cloth. At the time of the trial he weighed 134 pounds. He also testified, over the objection of appellant, that from the spring before the trial, November, 1909, up to August, he had a severe cough, and about six hemorrhages of the lungs. The doctors’ and other witnesses’ testimony corroborated the testimony of appellee to a' great extent as to his injuries and condition, and Dr. Conley, who attended him at the hospital, testified that in his opinion the appellee at the time of the injury had no lung trouble, but at the time of the trial had tuberculosis of the left lung, and also, in answer to a hypothetical question, said: “My opinion is that the injury so weakened the patient that it made his cells susceptible to the invasion of tuberculosis, and the tubercular germs invaded that weakened system and gave the man the disease known as consumption; and that that disease was caused by his weakness, and that weakness is caused by the accident.”

In Chicago Union Traction Co. v. May, 221 Ill. 530, the court say: “We think it was a correct practice for the court to permit appellee to prove the condition of her health at and prior to the time she was injured, and then to follow up that proof by showing her physical condition from the time of her injury down to the time of the trial, and to submit the question of her then physical condition, as a question of fact, to the jury under proper instructions.”

The court, on behalf of the appellant, gave to the jury the following instructions:

“With respect to the ailments and disability claimed for the plaintiff in this case, the law requires him to show by the greater weight of evidence not only that such ailments really exist, but also that they are the result of the accident in question. You have no right to guess or conjecture merely that any ailments complained of by the plaintiff are the result of said accident, but before the plaintiff can recover for any of them he must show by the greater weight of evidence that they do proceed from and are the result of said accident. The burden is not upon the defendant company to show that they arise from any other cause, and even if the evidence is evenly balanced between the plaintiff and the defendant on that question, you cannot allow the plaintiff for any such ailments.”
“You are further instructed that you are not to understand from this instruction that the court intends to intimate that the plaintiff has such disabilities as he claims, or that the defendant is liable, or to intimate any opinion upon that or any other question of fact in this case.”
‘ ‘ The court instructs you that if as to any injury or item of damage claimed by the plaintiff in this case you are unable from the evidence to determine whether the same was proximately caused by the alleged accident in question or whether it arose from any other cause whatever, then as to either such claimed injury or item of damage the plaintiff is not entitled to recover and the jury should not allow the plaintiff anything whatever therefor.”

The testimony that the tubercular condition presented itself so long after the accident seems to raise a doubt as to its being a result thereof; but had a tubercular condition appeared shortly after the accident, would not some doubt also arise as to its being caused thereby? Just at what time and under what circumstances and how a tubercular condition appears as the result of an accident, seem to us rather difficult questions, and might very properly be the subject of expert testimony. Whether the tubercular condition of the appellee was the result of the accident may seem doubtful, but under the rule announced in Chicago Union Traction Co. v. May, supra, it was a question of fact for the jury under proper instructions. The instructions of the court were clear and positive and thereunder the jury could have assessed no damages against the appellant for the said tubercular condition of the appellee, unless the jury believed from the preponderance of the evidence that the said tubercular condition was caused by the accident. In view of the rule prevailing in this state, that it is a question of fact for the jury, and taking into consideration all the circumstances of the case, including the remittitur, we are not inclined to disturb the verdict, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    B. F. Johnson, Defendant in Error, v. The City of Chicago, Plaintiff in Error.
    Gen. No. 16,310.
    1. Municipal corporations—when liable for negligence of driver of public library automobile. Where a city in pursuance of authority conferred by law erects and maintains a public library which owns and uses an automobile in the distribution of books, the city is liable where, through the negligence of the driver, the automobile collides with another.
    2. Municipal corporations—duty in maintaining public library. A city erecting a public library in pursuance of legal authority is required to exercise reasonable care in the management and maintenance thereof, and it is liable for the negligent performance of such duty, which is ministerial and not discretionary.
    3. Municipal corporations—liability at common laio for negligence. A private action does not lie at common law against a municipal corporation for the negligent performance of any public duty which is imposed on it by general statute without its" request, unless it receives or is entitled to receive some privilege or profit in consideration of the duty.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Edward J. Brundage and Frank L. Childs, for plaintiff in error.
    Chatty Bros., Jarvis & Hudson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The Chicago Public Library owned and used in the distribution of books an automobile. Through the negligence of the driver the automobile collided with the automobile of the plaintiff on a public street of Chicago, causing $109.65 damages to plaintiff’s machine, and for this sum plaintiff had judgment.

The only question presented by the record is, whether the defendant, the City of Chicago, is liable for the damages caused by the negligence of the driver of the library automobile. The Act of 1872 gives to the city council of every incorporated city, “power to establish and maintain a -public library and reading room” and to levy a tax therefor. The statute does not impose on a city council the duty to establish a library, but only confers the power to establish and maintain a library for the free use of the public.

The ground of exemption from liability contended for by plaintiff in error is not that the establishing of a library is an exercise of the police power, nor that the duty or service is compulsory, but that a city, in performing it, under the authority given by the Act, is acting for the state or public in a matter in which it has no private or corporate interest and out of which it can derive no gain or profit; and that therefore, inasmuch as it can only act through its officers or servants, it is entitled to have them, while engaged in the performance of the duty or service, regarded as the officers and servants of the public and to be exempt from any private responsibility for them.

A private action does not lie at common law against a municipal corporation for the négligent performance of any public duty which is imposed on it by general statute without its'request unless the corporation receives or is entitled to receive some privilege or profit in consideration of the duty. Whether such action will lie when the duty is not imposed, but is voluntarily assumed under the general law of the state, is a question on which the authorities are conflicting. In Wixon v. Newport, 13 R. I. 454, it was held that there is no liability where the duty is voluntarily assumed any more than where it is peremptorily imposed. In Dickinson v. Boston, 188 Mass. 595, it was held that when a city under no obligation to light its streets voluntarily undertook to light a street, it is liable for negligence in the management of its corporate property when used for such purpose. The question here presented does not appear to have been expressly decided by any court of review in this state. In Kinnare v. City of Chicago, 171 Ill. 333, it was held that the doctrine of respondeat superior did not apply to the city in favor of the estate of a person killed through the negligence of the city while engaged in the construction of a school building, because the city was required nolens volens to perform a public service in which the city, as a corporation, had no interest. In City of Chicago v. Seben, 165 Ill. 371, 379, it was said: “It has always been the doctrine of this court, that, while the legal obligation of the city to construct gutters and grade and pave streets is one voluntarily assumed, yet that, when the city constructs these improvements for the benefit of the public, it then becomes the duty of the city to see that they are kept in repair. ’ ’

While the question is not free from difficulty, the cases in this state tend to support the doctrine that where the city, in pursuance of the authority conferred by law, erects a public library, it is required to exercise reasonable care in the maintenance and management of the library; that such duty is not discretionary but ministerial, and that the city is liable for the negligent performance of such duty. Chicago v. Seben, supra.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Arthur B. Mulvey et al., Appellants, v. James A. Charter, Appellee.
    Gen. No. 16,459.
    1. Landlord and tenant—joint lessor may accept surrender. Where a lease is made hy joint lessors and the rent reserved to them jointly, a surrender may be made to one only.
    2. Landlord and tenant—what constitutes a surrender. A surrender may be inferred where there is change of possession from the circumstances and conduct of the parties evincing that they both agree to consider a surrender as made, and where there has been a change of possession with the assent of both parties, it amounts to a surrender of the term by act and operation of law.
    3. Landlord and tenant—accepting rent from a new tenant as a surrender. Where a lease is made by joint lessors and one of them tells the lessee to allow a new tenant to move in and to turn the keys over to him, which is done, and rent is accepted from such new tenant, a jury may find that a surrender was made.
    4. Landlord and tenant—evidence of authority to accept surrender. Where a lease is made by joint lessors and one of them, having charge of the renting and repairs, makes an agreement with the old tenant in regard to a surrender and accepts a new tenant, collects rent from him and receives applications for repairs, a jury may find that he had authority to act and did act for the other joint lessors in accepting the surrender.
    Appeal from the Superior Court of Cook county; the Hon. Faklin Q. Ball, Judge, presiding. 'Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Statement by the Court. The plaintiffs, Arthur B. Mulvey, Bichará J. Mulvey and Julia F. M. Armstrong, owned jointly a dwelling house in Chicago. They joined in a lease of said dwelling to defendant Charter for a term beginning April 1, 1903, and ending April 1, 1906. The defendant occupied the house and paid the rent up to March 31, 1904. The evidence showed that about March 31, 1904, Arthur B. Mulvey accepted from defendant a surrender of the term and told defendant to allow a Mr. Bicket to move in and to turn the keys over to him. Pursuant to the agreement defendant moved out and Bicket moved into the house and paid the rent up to August 31, 1905. Plaintiffs brought suit to recover the rent under the lease to defendant for the months of September, October and November, 1905. There was a judgment of nil capiat and the plaintiffs appealed.
    A. B. Mulvey, for appellants.
    Hobart P. Young, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The lease was made by joint lessors and the rent reserved to them jointly, and in such case a surrender may be made to one only, as one of such lessors could discharge the rent. 18 Am. & Eng. Ency. of Law, 356. A surrender may be inferred where there is a change of possession from the circumstances and conduct of the parties evincing that they both agree to consider a surrender as made. Where there has been a change of possession, with the assent of both parties, it amounts to a surrender of the term by act and operation of law. From the evidence the jury might properly find that a surrender was made to Arthur B. Mulvey, and such surrender is a bar to the action. Churchill v. Lammers, 60 Mo. App. 244. The jury might also from the evidence properly find that Arthur B. Mulvey had authority to act for and did act for the other joint lessors in accepting the surrender of the term and possession of the premises. He had charge of the renting and repairs of the premises and with him Charter made the agreement in regard to the surrender; he accepted Bicket as a tenant in place of Charter and collected rent from him for a year and some months, and the applications of Bicket for repairs were made to him. Dodd v. Acklon, 6 Man. & Granger, 673; 46 En. Com. Law, 671.

We see no reason for disturbing the judgment, and it is accordingly affirmed.

Affirmed.


text:
    T. J. Holcomb and S. F. Holcomb, copartners as The Hollow Rock Produce Company, Appellees, v. George R. Linn, surviving partner of George W. Linn & Son, Appellant.
    Gen. No. 16,483.
    1. Contracts-—formation 6y telegrams. A telegram asking for an offer for eggs, an answer by telegraph, “Por good stock will give $8.25, Chicago, prompt acceptance,” and a reply the same day also by telegraph, “Accept offer of $8.25 per case,” constitute a contract.
    2. Judgments—verdict sufficient to support. A judgment cannot be attacked because among the names signed to the written verdict were certain names not contained in the panel of jurors sworn, since the recorded verdict pronounced in open court must be regarded as the verdict.
    3. Appeals and errors—error cannot 6e first urged on appeal. On appeal it is no ground of objection to a judgment that among the jurors who signed the written verdict were certain names not contained in the panel of jurors sworn, where the attention of the trial court was not called to the objection. • •
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    J. Marion Miller, for appellant.
    Hoyne, O’Connor, Hoyne & Irwin, for appellees; Harry D. Irwin and Carl J. Appell, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The plaintiffs at Hollow Bock, Tennessee, telegraphed the defendant Linn at Chicago asking for an offer for fresh eggs. Defendant answered by telegraph: “For good stock will give $8.25, Chicago, prompt acceptance,” to which plaintiffs on the same day, also by telegraph, replied: “Accept offer of 8.25 per case.” These telegrams made a contract for the purchase and sale of eggs, and the contention of appellant that there was no contract is without merit.

A case contains 30 dozen of eggs, so that the price agreed on was 27% cents per dozen. Plaintiffs shipped a carload of eggs to defendant the same day, which defendant refused to accept on the claim that the eggs were not good stock, but “stale and held stock.” The evidence as to the quality of the eggs was conflicting, but from it the jury might properly find that the eggs were “good stock” and of the quality specified in the contract.

We find no error in the rulings of. the court on questions of evidence or instructions.

Appellant further contends that the judgment must be reversed because among the jurors who signed the written verdict preserved in the bill of exceptions were certain names not contained in the panel of jurors sworn. The common-law record states, “that the jury impaneled herein” come, etc., and say, “We, the jury, find the issues for the plaintiffs and assess plaintiffs’ damages at the sum of four hundred dollars and fifty cents.” The recorded verdict pronounced in open court must be regarded as the verdict, and not the paper signed by the .jurors. Griffin v. Larned, 111 Ill. 432; Auerbach v. Arguelles, 80 Ill. App. 167; Seal Dock Co. v. Chicago Mfg. & Optical Co., 98 Ill. App. 638.

Again, the question cannot be raised here for the first time, and the attention of the trial court was not called to the objection here made. Brewer v. Hofmann Brewing Co. v. Hermann, 187 Ill. 40.

From the evidence the jury might properly find that the plaintiffs sustained damages to the amount of the recovery by the breach of the contract by the defendant.

We find no reversible error in the record, and the judgment is affirmed.,

Affirmed.


text:
    Horatio O. Stone and Thomas W. Magill, copartners as H. O. Stone & Co., Defendants in Error, v. Peter F. Deahl, Plaintiff in Error.
    Gen. No. 16,484.
    1. Brokers—evidence of employment. Where, on an issue whether a firm was employed by a joint owner to secure the extension or renewal of a mortgage loan, a witness testifies that defendant telephoned him that the commission was too high, that witness answered that it was impossible to make better terms, to which defendant replied “All right then, go ahead,” which conversation is denied by defendant, and there is some corroborating evidence on both sides, the question is one of conflicting testimony and a verdict for the plaintiff will not be disturbed.
    2. Brokers—liability of owner of half interest. The fact that a person employing a firm to secure the renewal or extension of a mortgage loan is the owner of only an undivided half of the mortgaged premises and has no authority to contract for the co-owner, does not relieve him of liability for commissions.

      Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Robert S. Iles and Robert D. Mabtin, for plaintiff in error.
    M. J. Dunne, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

The claim of the plaintiffs in this case was that the defendant, Peter F. Deahl, employed them to secure a renewal or extension for five years at five per cent, of a loan of $12,000, secured by mortgage on certain real estate, and agreed to pay them a commission of one and one-half per cent, therefor; that plaintiffs under such employment secured a person ready, able and willing to so extend or renew said loan, but defendant refused to carry out the agreement on his part. The defendant denied that he employed the plaintiffs to secure" an extension or renewal of said loan. The real estate on which said loan was secured was owned by defendant and his brother, Uriah S. Deahl, and on it there was a mortgage for $15,000, made by a former owner, which fell due November 1, 1909. The Deahls authorized one Durland to secure and submit to them propositions for a renewal of the loan, and he secured from the plaintiffs and submitted to the Deahls, September 1, 1909, an offer to secure a renewal for five years at five per cent, and one and a half per cent, commission if $3,000 was paid on the principal. Schweizer, assistant manager of the loan department of the plaintiffs, testified that September 21,1909, Peter Deahl telephoned him that he had received from Durland plaintiffs’ proposition for the renewal of said loan for $12,000 at five per cent, and one and a half per cent, commission, and thought the commission pretty high; that witness answered that it was impossible to make better terms and Deahl replied, “All right then, go ahead.” Peter Deahl denied that he had any such conversation by telephone or otherwise with Schweizer. There is in.the record some evidence tending to corroborate Deahl and other evidence tending to corroborate Schweizer. We think that the question whether Peter Deahl employed plaintiffs to secure a renewal or extension of the loan for $12,000 on the terms stated by Schweizer is one of conflicting testimony, where the finding of the court is conclusive.

The fact that Uriah S. Deahl was the owner of an undivided half of the mortgaged premises and that Peter had no authority to contract for Uriah does not affect the question of Peter’s liability on his contract.

Finding no error in the record,, the judgment is affirmed.

Affirmed.

Nunc pro tunc as of January 9, 1911.


text:
    Frederick Rohn and Franklin B. Gottschalk, Trustee, Appellees, v. Ida Heidrich and Mathias Heidrich, Appellants.
    Gen. No. 16,496.
    1. Tender—rules in equity. The rules in respect to tender are much more liberal and flexible in equity than in law.
    2. Tender—qualified by conditions. A tender of performance may be accompanied with such conditions as were, by the terms of the contract between the parties, conditions precedent to be performed by the party to whom the tender is made, and the same rule applies where the acts to be performed by the respective parties are concurrent acts.
    3. Mortgages—sufficiency of tender. Where a trust deed provides that a solicitor’s fee shall be paid if foreclosure proceedings are instituted, and that on payment of the indebtedness a reconveyance of the premises shall be made by the trustee, a tender before proceedings instituted need not include a solicitor’s fee for preparing a bill to foreclose, and it is not impaired by being accompanied by a demand for a release deed, and a refusal of the tender on the sole ground that it did not include a solicitor’s fee is a waiver of all other grounds of objection.
    Appeal from the Circuit Court of Cook county; the-Hon. Thomas G-. Windes, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed November 18, 1912.
    Rehearing denied December 2, 1912.
    Statement by the Court. Appellee Bohn was the holder of a principal note for $1,200 and an interest note for $36, given by appellants and secured by their trust deed in the nature of a mortgage to Franklin B. Gottschalk, trustee. July 21, 1908, said notes were due and with the trust deed were in the hands of Albert Wesley Gottschalk for collection. The amount then due on the notes was $1,251.44. The mortgagors tendered to Albert Wesley Gottschalk for Bohn $1,260 and requested him to deliver to them said notes, trust deed and a release deed. The amount tendered was more than sufficient to pay the amount due and the usual and reasonable charges for a release deed. Mr. Gottschalk refused to accept the tender on the ground that he had prepared a bill to foreclose and demanded $50 for his services in preparing such bill. This amount the mortgagors refused to pay and Gottschalk afterwards filed the bill in this case. The defense set up in the answer was the tender. The only provision in the trust deed as to solicitor’s fees is a provision that, “In case proceedings are instituted for the foreclosure of this trust deed in any court, etc., * *' * a reasonable sum shall be allowed for solicitor’s fees of the complainant in such proceedings.” The master in his report stated his conclusions that the defendants had the right, on the tender of the entire debt and the reasonable costs of a release deed, to demand the surrender of all the securities by which the debt was evidenced, including a release of the trust deed; that the tender- was sufficient and stopped the running of interest, and that the complainant was not entitled to be allowed any solicitor’s fees, because the tender was made before the bill was filed. The master recommended that a decree be entered requiring defendants to pay into court or to Bohn $1,251.44 as the indebtedness due on account of said notes, and to the trustee such fees as the court might deem reasonable for the making of a release deed, that on such payment being made to him, the trustee execute a release deed, and that in default of the mortgagors making such payments the premises be sold and the proceeds applied to the payment of the amount found due to Bohn and costs of this proceeding incurred by any failure of the defendants to comply with the decree requiring such payment by them. The chancellor sustained complainants’ exceptions to the master’s report, found that the tender was conditional and insufficient, that complainant Bohn was entitled to interest up to the date of the decree and $100 for solicitor’s fees, entered a decree in accordance with such findings, and the defendants appealed.
    William Slack, for appellants.
    Albert Westley Gottschalk, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

The only question presented is as to the sufficiency of the tender. The rules in respect to tender are much more liberal and flexible in equity than at law. The trust deed provides that on payment of the indebtedness a reconveyance of the premises shall be made by the trustee or the successor in trust on receiving his reasonable charge therefor. The tender was not impaired by the demand of a release deed, for the defendants did not insist on any condition except such as the complainant was bound to perform at the time of payment by the terms of the trust deed, and they tendered the reasonable charges of the trustee for making such release deed. Mankel v. Belscamper, 84 Wis. 218.

The word “tender” in the case of mutual and concurrent promises “does not mean the same kind of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, and the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.” Smith v. Lewis, 26 Conn. 110, quoted with approval in Clark v. Weis, 87 Ill. 438, 441.

A tender of performance may be accompanied with such conditions as were by the terms of the contract between the parties conditions precedent to be performed by the party to whom the tender is made. Wheelock v. Tanner, 39 N. Y. 481; Bailey v. Buchanan County, 115 N. Y. 297.

The same rule applies where the acts to be performed by the respective parties are concurrent acts.

The tender was refused on the sole ground that it did not include $50 for solicitor’s fees for Bohn’s solicitor, and this was a waiver of all other grounds of objection to the tender.

The decree will be reversed and the cause remanded to the Circuit Court with directions to overrule the exceptions to the Master’s report and to enter an order confirming the report and a decree in accordance with its findings and recommendations.

Decree reversed and cause remanded with directions.


text:
    In re Estate of Mathew Gordon, Deceased. Appeal of Henry Ades Fowler, Administrator, Appellant, v. Harry L. Gordon et al., Appellees.
    Gen. No. 16,506.
    1. Executors and administrators—when amended petition to sell real estate to pay debts is original petition. The filing of an •amended petition to sell real estate to pay debts of decedent amounts to a dismissal of all petitions previously filed, and such amended petition is to be considered as an original petition.
    2. Executors and administrators—when petition to sell real estate to pay debts must be filed. While there is no statute limiting the time for filing a petition to sell real estate to pay debts of a decedent, when it is not satisfactorily explained, a delay for seven years after the date of death, or the granting of letters of administration, in filing such petition, is such laches as will bar any relief under it.
    3. Executors and administrators-—date of starting of delay on petition to sell realty to pay debts. On a petition to sell real estate to pay the debts of a decedent, in determining when a delay of seven years started, it is' immaterial whether the date of the death or of the granting of letters be taken, where in either case about eight years intervened between such starting point and the filing of the petition.
    4. Executors and administrators—when filing bill for partition loill not excuse delay in filing petition to sell realty. Where a petition to sell real estate to pay the debts of a decedent alleges the filing by a devisee of a bill for partition and does not allege that process was issued or that any steps were taken, the filing of the bill does not excuse a delay of more than seven years in filing the petition.
    5. Executors and administrators—when application to probate court will excuse delay in filing petition to sell realty. That a creditor applied, after a lapse of seven years, to the probate cdurt for an order that an executor institute proceedings to sell real estate to pay debts, does not excuse or explain the laches in filing a petition to sell.

      6. Executors and administrators—when promise to pay claim will not' excuse delay in filing petition to sell realty. Where a petition to sell real estate to pay the debts of a decedent sets up as an excuse for a delay of more than seven years in filing, that the attorney of the executor and certain heirs promised the creditor, on behalf of the heir, that if a creditor would not force the sale of the realty the devisees would, on the coming of age of the youngest child, pay the claim, the facts do not show that the attorney had authority to make the promise, and the allegations as to such promise áre not sufficient to excuse the delay.
    7. Executors and administrators—provision of xoill which will not excuse delay in filing petition to sell realty. A provision of a will, “It is my wish that all my debts due by me at my death and my funeral expenses be first paid,” does not tend to explain or excuse a delay of more than seven years in filing a petition to sell real estate to pay the debts of a decedent.
    8. Executors and administrators — adjudication of claims. Claims against the estate of a deceased person cannot be adjudicated in partition proceedings.
    9. Appeals and errors—point not mentioned in brief or argument is abandoned. Where a petition to sell real estate to pay the debts of decedent sets up an excuse for not filing the petition in proper time, if the excuse is not mentioned in the brief or argument, it will be considered as abandoned.
    Brown, J., dissenting.
    Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 18, 1912.
    Lackner, Butz & Miller, for appellant.
    Rice & O’Niel, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the petitioner. Administrator de bonis ñon with the will annexed of Mathew Gordon, deceased, from an order of the Probate Court sustaining the demurrer of certain defendants, devisees under said will, to a petition by said administrator for leave to sell real estate to pay the debts of said testator and dismissing the petition. Mathew Gordon died testate July 11, 1898, and his will was probated and letters issued August 30, 1898. The original petition was filed August 1, 1906.

There is no statute limiting the time for filing a petition to sell real estate to pay debts, but it is the settled doctrine of the Supreme Court that when it is not satisfactorily explained, delay for seven years after the date of death, or the granting of letters of administration, in filing such petition, is such laches as will bar any relief under it. Goodrum v. Mitchell, 236 Ill. 186; Graham v. Brock, 212 Ill. 581; Kipping v. Demint, 184 Ill. 166, and cases there cited.

Appellant contends that our Supreme Court has also fixed the starting point at the date of the allowance of the claim. The cases cited do not support this contention, and besides it does not appear from the petition when the claims were allowed.

In this case it is immaterial whether the date of death or of the granting of letters be taken as the starting point of the seven years, for- in either case about eight years intervened between such starting point and the filing of the petition, and about seven years before any action was taken by the Pabst Brewing Company to compel action on the part of the executor. No matter which starting point is taken, the rule has not been strictly applied; each case must rest on its own merits, and where the delay is explained and no rights of third parties have intervened, a longer period will not bar the right to sell.

The record presents only the question whether the facts alleged in the last amended petition amount to a sufficient excuse or explanation of the delay in filing the petition. The filing of that petition amounted to a dismissal of all petitions previously filed, and such amended petition is considered an original petition. Bonney v. Lamb, 210 Ill. 95.

The facts alleged in the amended petition which are relied on as excusing and explaining the delay, are:

First: That one of the devisees filed a bill for the partition of the real estate in question October 21, 1904. The petition only alleges that the bill was filed, and there is no allegation that process was issued or any steps taken under the bill. Claims against the estate of a deceased person cannot be adjudicated in partition proceedings. Crane v. Stafford, 217 Ill. 21. The filing of said bill does not excuse the delay in filing the petition to sell.

Second: That the Brewing Company, September 19, 1905, applied to the Probate Court for an order that the executor institute proceedings to sell. This application was made after the seven years had elapsed and does not excuse or explain the laches.

Third: That the children of the testator had a homestead estate in a part of said real estate until the youngest of them became twenty-one years of age. This excuse, though set up in the petition, is not mentioned in the brief or argument, and must therefore be considered abandoned.

Fourth: That Charles B. Obermeyer, who, it is alleged, was the attorney of the executor and of certain of the heirs, one of whom was the complainant in the bill for partition, had promised the Brewing Company on behalf of the heirs of Mathew Gordon, that if the Brewing Company would not force the sale of said real estate to pay their claims, the devisees of Mathew Gordon would, on the coming of age of the youngest of his children, pay the claim of the Brewing Company. The facts stated in the petition do not show that Obermeyer had authority to make the promise he is alleged to have made, and the allegations as to such promise are not sufficient to excuse the delay.

Fifth: That in the will of Mathew Gordon is the following provision: “It is my will that all my debts due by me at my death and my funeral expenses be first paid.” We cannot see that this provision tends to explain or excuse the delay, in filing the petition.

We do not think that the facts alleged in the amended petition satisfactorily explain, excuse'or account for the delay in filing this petition, and that the Probate Court properly sustained the demurrer and dismissed the petition.

The order appealed from will be affirmed.

Order affirmed.

Mr. Justice Brown dissents.