text:
    John F. Reif, trading as Vortex Blow Pipe Company, Defendant in Error, v. Commercial Cabinet Company, Plaintiff in Error.
    Gen. No. 19,213.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 31, 1914.
    Rehearing denied April 15, 1914.
    Statement of the Case.
    Action by John H. Eeif, trading as Vortex Blow Pipe Company, against Commercial Cabinet Company, a corporation, to recover for work and materials furnished to defendant under a written contract. The contract was attached to plaintiff’s statement of claim and was written on a letter head of the defendant Company and signed by Louis Kirmse. The defense was that the contract was not the contract of the defendant corporation but the individual contract of Kirmse. To reverse a judgment in favor of plaintiff for $342.57, defendant brings error.
    Abstract of the Decision.
    1. Evidence, § 360

      —when parol evidence not admissible to show parties bound by contract. The rule as to the admission of parol evidence of prior conversations relates as well to the introduction of evidence for the purpose of showing who were the parties intended to be bound by a written instrument as to the meaning or intention of the language used in the instrument; and where there is no indication upon the face of the contract that any other persons than those who signed it are intended, the court will not permit extraneous evidence to show that other and different parties were intended to be bound.
    2. Evidence, § 355

      —when subsequent acts of party signing contract inadmissible to show who is bound. Admission in evidence of the subsequent acts of a party who signed the contract in his individual capacity to show the construction placed upon the contract by them as to parties intended to .be bound, held error.
    3. Contracts, § 207

      —when words in contract do not create ambiguity as to persons bound. Where a person signs a contract on the letter head of a company in his own name, the fact that in writing the contract he used the words “we” and “us” does not create such an ambiguity that evidence of preliminary conversation prior to and contemporaneous with the execution of the contract is inadmissible to show whether the company was the real party to the contract.
    4. Contracts, § 393

      —when instruction as to construction of contract erroneous. In an action against a corporation on a contract, an instruction submitting to the jury the question whether or not the contract was ambiguous and in effect telling the jury that a certain act of the person who signed the contract in his individual capacity was an act of the corporation, held erroneous.
    5. Contracts, § 187

      —when acts of the parties may be loohed

      to, to aid construction. When a contract is in writing it is for the court to state its meaning, and it is only where there is a doubt as to the proper meaning of the contract arising from the ambiguity of the words or phrases used that the acts of the parties are looked to for aid in construction.

      Miller, Gorham & Wales, for plaintiff in error.
    Charles B. Casler, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Pbesiding Justice Smith

license: Public Domain

text:
    Fred Kuhlen, Defendant in Error, v. Chicago Athletic Association, Plaintiff in Error.
    Gen. No. 19,226.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Fred Kuhlen against Chicago Athletic Association, a corporation, to recover sixty-five dollars as wages due the plaintiff from the defendant, and for ten dollars attorneys’ fees. The statement of- claim alleged that plaintiff was employed from month to month and that he was wrongfully discharged. The defense was that plaintiff was discharged for cause. From a judgment in favor of plaintiff, defendant brings error.
    Plaintiff in error urges: That the finding of facts by the court is contrary to the evidence that the court erred in admitting improper evidence on the part of plaintiff and in refusing proper evidence offered by defendant; and that the court erred in refusing to grant a new trial and in entering judgment.
    CrAnn, Peaks & Towhlbv, for plaintiff in error.
    William Bebda, for defendant in error.

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

   Mr. Pbesiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 82 —when written declarations of agent of employer inadmissible. In an action to recover wages where the defense was that plaintiff had been discharged for cause, a letter signed by an agent of defendant stating that plaintiff’s services were satisfactory and that he was considered honest, industrious and reliable, held improperly admitted in evidence as an admission of defendant, where there was no affirmative evidence establishing the agency of the person writing it other than the declaration of the agent.

2. Evidence, § 177 —declarations of agent. Declaration of an.'' agent to be admissible against his principal must be of his own ^ knowledge and not a mere expression of opinion.


author: Mr. Presiding Justice Smith

text:
    Amos H. Clark, Appellee, v. The Pacific Mutual Life Insurance Company of California, Appellant.
    Gen. No. 19,253.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Rehearing denied April 15, 1914.

      Certiorari denied by Supreme Court (making opinion final.)
    Statement of the Case.
    Action by Amos H. Clark against The Pacific Mutual Life Insurance Company of California, a corporation, to recover a sum claimed by plaintiff to be due him under an accident insurance policy issued to plaintiff by the defendant. The policy insured the plaintiff “ against bodily injuries effected directly through external, violent and accidental means,” and provided payment of a weekly sum for loss of time resulting from such bodily injuries causing immediate, continuous and total disability of the insured from the date of the injury. To reverse a judgment in favor of plaintiff for one thousand two hundred dollars and costs, defendant appeals.

      Abstract of the Decision.
    1. Insurance, § 433

      —effect of limitation of liability in accident policy to “continuous” disability. Where an accident insurance policy provided payment of a weekly indemnity for continuous disability, held that an interruption of eight days, during which the insured made an effort to work at his usual occupation on advice of a physician, did not destroy the continuity of his disability so as to preclude further recovery, it appearing that the general intention of the policy was to provide an indemnity .if by accidental injury the ability of the insured to earn money should be suspended by a disability to earn money by his personal exertions.
    2. Insurance, § 665— sufficiency of evidence to shoio waiver of provision limiting time to sue. Slight evidence is sufficient to establish a waiver of a condition in a policy as to the time suit must be brought on policy.
    3. Insurance, § 550

      —when provision limiting time to sue waived. A provision in an accident policy that suit cannot be brought thereon after a certain time from the date of filing proofs of disability, held waived where an officer of the insurance company requested the insured to wait and see the general adjuster and he was unable to see him until the limitation period had expired.
    4. Insurance, § 518

      —when terms of receipt for insurance money not conclusive. Signing of a receipt indorsed on the back of a check for money due under a policy, held not to have the effect in law of acknowledging full satisfaction and final settlement of all claims accrued or to accrue under the policy, and the terms of such receipt held subject to contradiction and explanation like any other receipt.
    George H. Mason, for appellant.
    William J. Lacey, for appellee.

      See niinoie Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Me?. Presiding Justice Smith

text:
    Wilhelm E. Krieger, Appellee, v. Chicago Carton Company, Appellant.
    Gen. No. 19,266.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Physicians and surgeons, § 24

      —when entitled to recover for services rendered on request. In an action by a physician against a company to recover for medical services rendered at the request •if officers of the company in treating an employe, held that the cornpany was liable on ah implied contract to pay for such services.
    2. Physicians and surgeons, § 24

      —admissibility of evidence. In an action by a physician against a company for medical services rendered at the request of officers of the company in treating an employe of the company, admission in evidence of a conversation, which was not communicated to the plaintiff, between an officer of the company and such employe, in which the officer of the corporation stated he would take care of the bill, held improper but not reversible error.

      Appeal from the County Court of Cook county; the Hon. W. F. Slates, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Wilhelm E. Krieger against Chicago Carton Company, a corporation, to recover for services rendered by plaintiff as a physician and surgeon at the request of the president and superintendent of the defendant Company in treating William Ulm, who was injured while in the employ of defendant. Prom a judgment in favor of plaintiff for five hundred dollars defendant appeals.
    John Clark Baker, for appellant.
    John W. Sutton and Martin L. Wilborn, for appellee.

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

   Me?. Presiding Justice Smith

delivered the opinion of the court.

3. Instructions, § 90 —when party not entitled to an instruction to disregard improper testimony. Where a party fails to make proper objections to improper testimony he has no right to have such testimony excluded from the consideration of the jury.

4. Appeal and error, § 1560 —when refusal of requested instruction not error. In an action to recover for medical services, refusal of defendant’s requested instruction to the effect that the jury must disregard testimony as to the value of the services not based upon charges customarily and ordinarily made by other surgeons in the vicinity, held not error for two reasons First, that the court gave an instruction at the request of the defendant disregarding évidence not based on customary charges; and second, that the evidence was improperly admitted without specific objection.

5. Appeal and error, § 508 —when objection to evidence admitted not preserved by general objection. On appeal from a judgment for medical services, an objection that testimony admitted on behalf of plaintiff as to the value of plaintiff’s services should have been directed to what was the customary and ordinary fee charged by physicians at the place for services of like character, cannot he considered where the objection to the questions asked was general and did not specify the particular ground.


author: Mr. "Justice Barnes

text:
    Lepman & Heggie, Defendant in Error, v. The Wabash Railroad Company and The Missouri Pacific Railway Company, Defendants. Missouri Pacific Railway Company, Plaintiff in Error.
    Gen. No.’s 19,123, 19,124.
    1. Dismissal, nonsuit and discontinuance, § 2

      —who entitled to dismiss party defendant. After the joinder of issue the plaintiff alone has power to dismiss a party defendant out of the case.
    2. Carriers, § 30

      —when initial carrier cannot complain of joint action under Garmaelc amendment. Where, in an action against both the initial and connecting carriers for damage to goods in transit, a dismissal was entered as to the latter, the former cannot complain of a judgment against it on the ground that under the Carmack amendment to the Interstate Commerce Act the action lies against the initial carrier alone, and that plaintiff, having elected to pursue both carriers jointly, was bound to establish joint liability, since on the dismissal of the connecting carrier the action stood as though based on a claim of single liability.
    3. Carriers, § 30

      —effect of Oarmack amendment. Since the Carmack amendment, a carrier undertaking the carriage of an interstate shipment cannot limit its liability to its own line but is liable for loss or damage occurring anywhere en route.
    4. Carriers, § 30

      —when initial carrier cannot complain of dismissal of connecting carrier in action under Oarmack amendment. Where, in an action against both the initial and connecting carriers for damages to goods in transit, a dismissal was entered against the latter, the former cannot complain of a judgment against it on the ground that plaintiff had elected to pursue both defendants jointly and hence it could not be held liable under the Carmack amendment, where it made no claim of surprise, but instead took issue on allegations warranting proof of liability under that amendment and introduced no evidence in defense.
    5. Carriers, § 30

      —effect of Oarmack amendment on burden of proof. In an action under the Carmack amendment for damage to an interstate shipment, principles governing the burden of proving on what line the damage occurred are inapplicable.
    6. Carriers, § 137

      —what creates presumption of injury during transit. Where the consignee of goods refused to accept the same from the connecting carrier on finding them damaged in part, because of the refusal of the carrier to deliver until a receipt reciting the property was received in good order was signed by the consignee, in an action against the initial carrier under the Carmack amendment the latter cannot complain that the act of the connecting carrier constituted a conversion for which it was not liable, since proof that the goods were in a damaged condition on arrival was sufficient to justify the presumption that they were damaged en route.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Jeeeery & Campbell, for plaintiff in error; Herbert J. Campbell, of counsel.
    Frank Schoenfeld, for defendant in error.

      See lUinoia Notes Digest, Veis. XI to XV, same topic and section number.

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

   Mr. "Justice Barnes

delivered the opinion of the court.

Two suits are here involved brought by defendant in error, as consignee and holder of two bills of lading, against the plaintiff in error, the initial carrier, that issued said bills, and the Wabash Railroad Company, the delivering carrier, for damages to eggs in transit on account of negligence of said carriers, and conversion of the damaged eggs to their own use. The two cases are consolidated for hearing, being alike in all matters essential to the consideration of the questions involved. The shipments were from Kansas City, Mo. to Chicago, Ill. As we view it, the record merely calls for consideration of the liability of plaintiff in error as the initial carrier for damages to the goods in transit received for transportation from a point in one State to a point in another.

The case was heard by the court without a jury and a finding of liability was made against both defendants. After “both sides” had rested, as stated in its motion, the Missouri Pacific Railway Company moved “to dismiss the cause of action” against it. Of course, after issue joined, plaintiff alone has the power to dismiss a party defendant out of the case. Presumably, the motion was intended and treated as one for a directed finding. At any rate, it was denied and said finding was entered. Each defendant then made a motion to vacate the finding against it. That of the Missouri Pacific Railway Company was denied, and that of the Wabash Railroad Company sustained. The record then shows an order dismissing the suit as to the latter, presumably, in the absence of a recital to the contrary, on plaintiff’s motion. A motion then made by the former in arrest of judgment was denied and judgment was entered against it on the finding as modified.

The main contention is that even though the proof would support a claim of liability against plaintiff in error under the so-called Carmack Amendment of June 29, 1906, to the Interstate ’ Commerce Act (34 Stat. at Large, p. 584, ch. 3591; U. S. Comp. Stat. Supp. 1909, p. 1149), yet a suit to recover under said act lies against the initial carier alone, and when plaintiff elected to proceed against defendants jointly, it took the burden of establishing joint liability and failed to do so. The theory is that the liability of the initial carrier under said Carmack amendment is that of principal for the negligence of its own agents, and that a judgment cannot be sustained against principal and agent jointly where the grounds of their liability are different. Assuming the theory to be correct and applicable to this case, yet as the action was for tort, dismissal as to one joint defendant would not of itself prevent judgment against the other.

Since the Carmack amendment, a carrier undertaking the carriage of an interstate shipment cannot limit its liability to its own line but is liable for loss or damage occurring anywhere en route. The allegations in the statement of claim, on which plaintiff in error took issue, were sufficient to raise the question of such liability, and the proof was sufficient to sustain them. It was not questioned at the trial that plaintiff in error issued the bills of lading, that defendant in error was the consignee and holder thereof, that the shipments were interstate, that the goods were found in a damaged condition in the hands of the delivering carrier on their arrival, and that there were damages to the amount assessed. The essential questions of fact were not controverted. The claim is that because joint liability was charged, plaintiff in error had no notice of a purpose to claim single liability under the Carmack amendment. In other words, it is the form of the action rather than the merits of the case that is questioned. Had the action been brought against the initial carrier alone, it would hardly be questioned that the statement of claim would have been sufficient to apprise plaintiff in error of its nature, and present the issue of its liability as an initial carrier under the Federal statutes. But when the joint defendant was dismissed out of the case, the aetion then stood as if it had been commenced against plaintiff in error alone. If, at that time, plaintiff in error had evinced surprise and sought to make defense against single liability and was denied opportunity to do so, another question might arise, but the record presents no such question. Plaintiff in error had an opportunity to introduce evidence but rested its case without doing so. It took issue on allegations warranting proof that established liability under the Carmack amendment, and, failing to introduce any evidence to the contrary, or ask leave to do so, it is in no position to complain of the judgment. The record, therefore, presents not a question as to the merits of the case, but one of practice in which it does not appear plaintiff in error was denied any substantial right.

This being a case where plaintiff in error received goods for transportation from one State to another, the questions argued as to the burden of proving on what line the damages occurred do not arise for consideration.

It appears that after an agent for defendant in error had examined the contents of the cars on their arrival in Chicago and found several cases of eggs were damaged, he refused to accept the damaged cases under the condition imposed by the Wabash Railroad Company, namely, that he must sign a receipt for the same with the recital therein stating that the property was received by defendant in error in good order. It is contended that this- was an act of conversion of said property by the latter company, and not an act of a common carrier, but one for which said company was responsible after the relation of carrier had terminated, and for which plaintiff in error could not be held liable. As before stated, the eggs were found in a damaged condition on their arrival. The proof is sufficient to justify the presumption that they were damaged en route. We'need not, therefore, consider the question of liability of plaintiff in error for alleged conversion, as the proof was sufficient to sustain that for damages to the goods in transit.

Other questions argued are not pertinent if, as we hold, the judgment can properly rest upon proof of liability under the Carmack amendment. If, as a matter of fact, the negligence complained of occurred on the Wabash line, there is nothing in the state of the record that precludes plaintiff in error from asserting its right of action against the Wabash Company for whatever amount it may be required to pay for such loss. The judgment in both cases will be affirmed.

Affirmed.


author: Mt¡- Justice Barnes

text:
    R. B. Farson, Defendant in Error, v. Curtis B. Camp, Plaintiff in Error.
    Gen. No. 19,161.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 31, 1914.
    Statement of tlie Case.
    Action by E. B. Farson against Curtis B. Camp on a promissory note executed by defendant and made payable to plaintiff. Defendant filed an affidavit of merits which was stricken from the files. Judgment was entered against defendant for $256.35 by default for want of an affidavit of merits. To reverse the judgment, defendant brings error.
    Lyman, Lyman & O’Connor, for plaintiff in error.
    Parker & King, for defendant in error.

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

   Mt¡- Justice Barnes

delivered the opinion. of the court.

Abstract of the Decision.

Municipal Court of Chicago, § 13 —when affidavit of merits in suit on note improperly stricken. In an action on a promissory note given for $250, defendant. filed an affidavit of merits stating that plaintiff and defendant jointly guarantied the payment of a certain note for $400, with the understanding that plaintiff was to get a third party to join in the guaranty; that the plaintiff forged the name of the third party to the guaranty, and after-wards paid the note; that the defendant, ignorant of the forgery and supposing he had the right of contribution from the third guarantor, by way of adjustment of his liability to plaintiff for paying said note, guarantied the payment of another note given to the plaintiff by the same maker for the same amount; that the defendant paid plaintiff $150 and claimed to owe him only $50 more on the transaction, making in all one-half of the original sum paid by the plaintiff on their joint guaranty. Held, that the court erred in striking the affidavit from the files, that enough appears in the affidavit to justify the conclusion that the note was given for a balance due on the note to plaintiff for $400 after defendant paid $150, and that there appeared to be no liability from the defendant to plaintiff except for what the latter could require by way of contribution for satisfying their joint guaranty.


author: Mr. Justice Barnes

text:
    City of Chicago, Plaintiff in Error, v. Thomas D. McGuire, Defendant in Error.
    Gen. No. 19,228.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverey, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by City of Chicago against Thomas D. McGuire for violation of an ordinance of the City of Chicago. The ordinance provides: “That no person, firm or corporation owning, in charge of or in control of any public lavatory or washroom shall maintain in or about such lavatory or washroom any towel for common use. The term ‘common use’ as used in this ordinance shall be construed to mean for use by more than one person.” The defendant was charged with maintaining roller towels for the common use of guests in a lavatory or washroom of his lodging house. The court found that the lavatory maintained by defendant was not a public lavatory and' entered judgment for defendant. To reverse the judgment, plaintiff brings error.
    Abstract of the Decision.
    Health, § 2

      —when ordinance prohibiting common use of towels in public lavatories applicable to lavatories in lodging house. A lavatory or washroom in a lodging house for men guests only, held to be a public lavatory within the meaning of an ordinance prohibiting persons owning or in charge of any public lavatory or washroom from maintaining towels therein for common use, it appearing that the lodging house was such that any one seeking lodging was invited and the lavatory or washroom and roller towels therein were for the common use of all guests on the same floor, and that the accommodations were open to the public with only such restrictions as are generally applicable to hotels and other similar public places.
    William H. 'Sexton and James S. McInernby, for plaintiff in error; Albert J. W. Appell, and L. B. Hoover, of counsel.
    Burke, Jackson & Burke, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    George G. Place, Appellee, v. Charles T. Gilmore, Appellant.
    Gen No. 19,290.
    (Not to he reported in full.)
    Abstract of the Decision.
    Bbokebs, § 88

      —when judgment for commissions not sustained hy the evidence. In an action to recover commissions for procuring a purchaser for the business, good-will, etc., of a certain company, a judgment for plaintiff held not sustained by the evidence,
      it appearing that the plaintiff did not find a purchaser for the purchase price agreed upon but that he procured a purchaser who made an offer of some kind, and there was no evidence to show an acceptance of the offer.

      Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 31, 1913.
    Statement of the Case.
    Action "by George G. Place against Charles T. Gilmore and Chicago Addition Mangle Company, a corporation, to recover commissions which plaintiff claims that the defendant Gilmore orally agreed to pay for procuring a purchaser for the business, goodwill, etc., of the said Mangle Company of which said Gilmore was the vice president and largest stockholder. The suit was dismissed as to the defendant company at the close of the evidence and then submitted to a jury on an amended count claiming a contract for commissions with Gilmore. From a judgment in favor of plaintiff, defendant appeals.
    IToyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    Beach & Beach, for appellee.

      8eo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Charles S. Quinlan and Howell N. Tyson, copartners as Quinlan & Tyson, Appellees, v. Mary E. Towle, Appellant.
    Gen. No. 19,295.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed on remittitur.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Charles S. Quinlan and Howell N. Tyson, copartners doing business as Quinlan & Tyson, against Mary E. Towle to recover commissions and certain expenses incurred in procuring a purchaser for real estate for defendant. The title to the property became vested in four heirs of Mrs. E. J. Towle, deceased, of whom defendant was one, each having an undivided one-fourth interest therein. At the time of the transaction in question, one of the heirs had died and her title was vested in her minor children subject to her husband’s dower rights. One Miss Bartelme was the guardian of said children. The defendant had a power of attorney for the management of the property, but not for its sale. One Mrs. Anderson, desiring to purchase the property, was referred by the defendant to plaintiff’s manager, as her agent, who took up and carried on negotiations resulting in a contract of sale, drawn by the manager and signed by the defendant and Mr. and Mrs. Anderson. Underneath defendant’s signature were the words, “Attorney in fact for the estate of Mrs. E. J. Towle, Dec’d.” Plaintiff’s recovered a judgment for two hundred and seventy-five dollars, including a bill of forty dollars for a guaranty policy paid for by the plaintiffs, and a claim for two hundred and thirty-five dollars as commissions. From the judgment, defendant appeals.
    Abstract of the Decision.
    1. Brokers, § 33

      —right to commissions when principal has no authority to sell. Decisions holding that one contracting to sell real estate he does not own may become liable for commissions for procuring a purchaser are distinguishable from a case where the broker assists his principal in making a contract which he knows his principal has no power to carry out.
    2. Brokers, § 33

      —right to commissions when brokers know of principal's want of authority to sell. In an action to recover commissions for procuring a purchaser of real estate in which the principal and others, some of which were minor heirs, had an interest, held that a judgment for plaintiff could not be sustained, the evidence showing that the plaintiffs knew of the interest of the minor heirs and was chargeable with knowledge of the principal’s want of authority to sell and convey the interests of all the parties, and it appearing that the plaintiffs proceeded in the negotiations not upon the assertion of any claim by the principal that she had authority to convey their interests but upon the contingency of her ability to acquire leave to sell the minors’ interests and to obtain a conveyance from the other tenants in common.
    Frank W. Swett, for appellant.
    George W. Hess, for appellees.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Bertha Rohn, Appellee, v. Robert F. Rohn, Appellant.
    Gen. No. 19,335.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divorce, § 141

      —when allowance of temporary alimony and solicitor’s fees authorized by defendant’s answer. Allowance of five dollars per week for temporary alimony and twenty-five dollars for solicitor’s fees, held authorized by defendant’s answer, without any testimony, where his answer showed he owned a lot worth two hundred dollars and received five hundred dollars a year to attend to his mother’s investments, it not appearing that it took all his time or that he had any one but his wife to support.
    2. Appeal and error, § 726

      —when order for temporary alimony and solicitor’s fees sustained by answer in absence of preservation of testimony. Allowance of five dollars per week for temporary alimony and twenty-five dollars for solicitor’s fees, held authorized by defendant’s answer, though the testimony was not preserved in the record.
    3. Appeal and error, § 1170

      —moot questions. On appeal from an order allowing temporary alimony and solicitor’s fees, where it appears from the record that a final decree has been entered reserving to the court for future consideration the question of alimony and solicitor’s fees, held that the question presented was largely a moot question.

      Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Bill by Bertha Bohn against Bohert Bolin for divorce on the ground of impotency of defendant. From an order for temporary alimony and solicitor’s fees based on the pleadings and testimony of defendant, defendant appeals.
    Albert Wesley Gottschalk, for appellant.
    Frank S. Bigheimer, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Bertha Rohn, Appellee, v. Robert F. Rohn, Appellant.
    Gen. No. 19,336.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Divorce proceeding by Bertha Rohn against Robert F. Rohn. From an order for five dollars a week temporary alimony and for twenty-five dollars for solicitor’s fees pending an appeal from a previous order, defendant appeals.
    The previous order appealed from was entered October 15, 1912 and the order in question was entered November 29, 1912, both orders being entered for the same amount of alimony and solicitor’s fees. The appeal from the previous order is reported in Rohn v. Rohn, ante, p. 594.
    Albert Wesley Gottschalk, for appellant.
    Frank S. Righeimer, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Divorce, § 141*—when allowance of temporary alimony and solicitor’s fees pending appeal authorised. An order for five dollars a week temporary alimony and twenty-five dollars attorney’s fees pending an appeal from a previous order of the court, held authorized by the defendant’s answer upon which the order was based, it appearing therefrom that defendant had no one to support but himself and wife, that he had a lot worth two hundred dollars, and was receiving five hundred dollars a year for attending to his mother’s investments, and it not appearing that such duties took all his time.


author: Mr. Justice Clark

text:
    Arthur H. Soden, Appellee, v. John Claney et al. On Appeal of John Claney and Willis P. Dickinson, Appellants. Soden v. Claney et al. On Appeal of Citizens Bank of Mukwonago.
    Gen. No. 18,923.

    Gen. No. 18,914.
    1. Fraud, § 115

      —when evidence sufficient to show conspiracy to defraud party furnishing money at foreclosure sale. A person desirous of bidding in property at a foreclosure sale furnished an other party with the money to bid in the property. Such party bid in the property and had the certificate of sale made out to a friend of his representing to the party procuring him to make the bid that it would be to his interest and that the deed should also be made in his name. The deed was thus taken in the name of the bidder’s friend who afterwards refused to recognize that the person furnishing the money had any interest in the premises. The person furnishing the money brought suit in equity alleging he was the owner and entitled to premises and that the party bidding in the property and the party in whose name the deed was taken had conspired to defeat his interest in the premises. Held that a decree finding that the defendants had conspired together to defraud the complainant and that they had no interest in the property and ordering an accounting and conveyance of the property to complainant was sustained by the evidence.

      2. Fbaud, § 37

      —when parties not in pari delicto. Where a person made inexcusable statement upon the advice of another as a part of a plan to put the former in a false position, held that the parties were not in pari delicto.

    3. Equity, § 254

      —when granting leave to amend hill after hearing not an abuse of discretion. Granting leave to complainant to amend his bill after the hearing and before the decree, held not an abuse of the chancellor’s discretion.
    4. Estoppel, § 42

      —/iohat necessary for party to urge estoppel. “It is essential to the application of the principle of equitable estoppel that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the state of facts, but also was destitute of any convenient and available means of acquiring such knowledge.”
    5. Estoppel, § 77

      —when hank advancing money on representations as to title cannot assert estoppel: Where a person furnishing the money to bid on property at a foreclosure sale permits another to bid in the same and permits the certificate of sale and the master’s deed to be taken in the name -of a party other than the one who bid in the property, held under the evidence that the party furnishing the money was not estopped in equity to claim his interest in the property as against a bank which had advanced to the person bidding in the property on his representations as to his interest therein.
    i.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 31, 1914.
    Rehearing denied April 15, 1914.
    Fla, Grover, March .& Eckert, for appellant Citizens Bank of Mukwonago; Frank R. Grover, of counsel.
    Helmer, Moulton, Whitman & Whitman, for appellant John Claney; Frank A. Helmer, of counsel.
    A. A. Rolf, for appellant Willis P. Dickinson.
    Hoyne, O’Connor & Irwin, for appellee.

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

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

   Mr. Justice Clark

delivered the opinion of the court.

Two appeals have been perfected in this case, one by Claney and Dickinson, defendants, and one by the Citizens Bank of Mnkwonago, another defendant and also the complainant in a cross-bill. The appeals were consolidated for argument and will be considered together.

The essential provisions of the decree follow:—

The cross-bill of the bank was dismissed for want of equity.

The defendants John Claney and Willis P. Dickinson were ordered to surrender possession of the premises in question, consisting of a building formerly known as the “Concord Apartment House” and later as the “Kingsbury,” together with a leasehold interest in the ground upon which the building stands; that within ten days after the entry of the decree Claney and Dickinson reléased to Arthur H. Soden, the complainant, all right, title and interest in and to the premises, and on their failure to' do so that a master’s deed thereof be made by a designated master; that the defendants and all persons claiming through and under them since the commencement of the suit be forever barred and foreclosed, etc.; that the defendant Claney account to the complainant for rents and profits received by him since he entered iuto the possession of the premises, and a reference to a master is provided for to take an account; that Claney and Dickinson pay the costs of the suit; that in lieu of the appointment of a receiver of the premises, as prayed for by the complainant, that the defendant Claney retain possession of the premises as had been provided for under an order entered earlier in the case; that he should hold possession of the premises subject to the orders of the court, etc.; that jurisdiction of the case be retained so that any of the parties to the cause might apply for the appointment of a receiver upon proper notice, etc.

Prefacing the decretal order thus epitomized the decree contains exhaustive tradings, the substance of which may be stated as follows: The court finds that the complainant, Soden, on July 31, 1903, was the owner and holder of certain bonds of the Concord Apartment House Company, a corporation, which bonds were secured by trust deed to the Northern Trust Company, upon a certain leasehold estate described; that the said company having made default in the payment of the interest upon the bonds so held by the complainant, as well as upon other bonds the trustee had commenced suit to foreclose; that such proceedings had been had that a decree of sale had been entered May 26,1903, directing a master in chancery of the Superior Court to sell said premises; that the complainant being desirous of protecting his interest in said premises conferred with the defendant, Willis P. Dickinson, in regard to said sale, with the purpose of bidding in the premises; that the defendant, Willis P. Dickinson, and his brother, John W. Dickinson, doing business under the firm name of W. P. Dickinson & Company, had sold through said John W. the said bonds of the said Apartment House Company, and that Willis P. Dickinson informed complainant that he would act for him in bidding at said sale and securing the title in the name of Charles A. B Soden; that prior to said sale Dickinson advised complainant not to bid for said premises in his own name but in the name of his son, Charles A. B. Soden, and that complainant was also advised by legal counsel not to bid for the premises in his own name; that acting upon the advice of his counsel and Dickinson, complainant authorized Dickinson to attend the sale and bid in the property in the manner described, complainant placing in the hands of Dickinson a draft for $5,000 payable to the master in chancery to be taken as a deposit on any bid that might be made, and complainant agreed with Dickinson to furnish him with sufficient money to complete the purchase; that complainant having full faith and confidence in the integrity of Dickinson and his representations, did not attend the sale but relied wholly upon Dickinson to represent him; that on July 31st a master’s sale was had, at which the building’, together with the leasehold for the unexpired term of ninety-nine years and nine months,' was sold; that Dickinson attended the sale and made a bid of $48,000 in the name of the defendant, John Claney; that the amount of the deposit required was paid to the master; that Dickinson advised complainant that he had bought the property in the name of John Claney for $48,000 and paid $5,000 in cash; that John Claney was a friend of his, admitted that he had acted contrary to instructions and stated that he had a letter from Claney to the master in chancery to the effect that Claney had bid in the property and paid the money for the account of Charles A. B. Soden, and that when the master was ready to issue his certificate it should be issued to Charles A. B. 'Soden; that Dickinson also represented to complainant that the buying of the property in the name of Claney would put complainant in a better position.

The next finding is that the complainant believed the statement of Dickinson to be true and that Dickinson was acting wholly in the interest of complainant, and therefore consented that the certificate should be issued to Claney; that the certificate was issued, and at the request of complainant was by written assignment thereon, in August, 1903, transferred to complainant’s son, Charles A. B. Soden, and delivered to complainant; that after the issuance of said certificate of sale by the master, Dickinson represented to complainant that it was better for him to allow the title to the premises to stand in the name of Claney, and advised complainant to let it appear that Claney was the bona fide purchaser and owner of the premises, and represented to complainant that Claney was a responsible business man and a friend of Dickinson who was willing to hold the title for the complainant at the request of Dickinson and as an accommodation to him, and that Claney was an honest man and would turn over said premises to complainant when requested, which representations the complainant relied upon and believed to be true, returned the certificate of sale to Dickinson and consented that the deed issue to Claney.

The next finding is that at the time of the master’s sale said premises were in the possession of a receiver appointed in the foreclosure suit; that on November 1, 1904, no redemption having been made, the master executed a deed to Claney, who entered into possession and has ever since continued in possession; that subsequent to the sale complainant was compelled to pay and did pay out large sums of money to protect the premises from liens and claims thereon; that Dickinson, pretending to be still acting in the interest of complainant, continued to write him assuring him that he was acting for complainant’s best interests and that he held a declaration of trust from Claney for the benefit of complainant; that complainant made repeated demands upon Dickinson for the declaration of trust, but Dickinson made excuses for the delay in sending it and represented to complainant that the declaration had already been executed by Claney; that complainant was induced to believe and did believe that the representations of Dickinson that Claney recognized the rights of complainant, etc., were true, and that complainant therefore delayed any action to compel Claney to convey to him.

It is next found that the statements and representations of Dickinson as to the execution and delivery to Dickinson by Claney of the declaration of trust were false and fraudulent and made with the purpose and intent of deceiving and defrauding the complainant and inducing him to allow the title to remain in the name of Claney; that the defendant Dickinson has no right or equitable claim to the property but that his pretense that he has some equitable claim is a part of the conspiracy between Dickinson and Claney; that Claney did not believe that Dickinson had an equitable interest in the property and did not advance any moneys to Dickinson because of any such belief; that Dickinson and Claney conspired together to obtain title to said premises in the name of Claney and to hold the same in his name for the purpose of defrauding the complainant; that for the purpose of enabling Dickinson and Claney to carry out their fraudulent scheme Claney pretended that Dickinson was indebted to him and that the premises were put in his name by Dickinson to secure such indebtedness; but it is further found that the alleged claims of Claney against Dickinson were part of the fraudulent scheme of Claney and Dickinson to defraud the complainant.

The next finding is that Claney pretends to have received from Dickinson an assignment of two certain contracts purporting to have been signed by complainant, under and by which Dickinson claims to have acquired some interest in the premises, but that the alleged signature of the complainant to each of the said alleged contracts is a forgery.

It is further found that the defendant, Claney, knew from the beginning that the complainant was the owner of said property, and had advanced all the money to purchase same at the master’s sale and to remove the liens; and further that Claney had actual notice of the rights of complainant when the bid was made in his name and when the deed was issued to him; that Dickinson and Claney were associated in the transaction relating to the premises and in the acquiring of the title, and from the beginning intended to induce the complainant to permit the title to said premises to be taken in Claney’s name, and in pursuance of the fraudulent purpose falsely represented to complainant that it was for his best interest to allow the title so to remain.

It is then found that Charles A. E. Soden had no interest in the premises or in money advanced to purchase the same; that this fact was well known to Dickinson and Claney; that although Charles A. R. Soden had no interest in the premises, etc., he did in fact execute and deliver to complainant, before the filing of the bill, a written instrument transferring and assigning to him all rights, title, etc.

Further findings are that Claney has no equitable interest in said premises and holds the legal title in trust for complainant, and that complainant is the equitable owner thereof and entitled to a conveyance from Claney; that the defendant, Claney, had been receiving the rentals since November 1, 1904, and had been repeatedly called upon by complainant, before the filing of the bill, to render an account, which he has failed and refused to do, and that he has failed to turn over to the complainant any money whatever received from the premises, except the sum of $689.90, which was a balance in the hands of the receiver on November 1, 1904, which sum the receiver paid to Claney; that in 1904 and prior thereto the defendant Dickinson was engaged in business as a broker, and as such sold to the cross-complainant the bank notes of various persons, indorsed by Dickinson, and upon which he had become liable as indorser, as well as a note of John Claney & Co., a firm of which Claney was a member, the latter note being guarantied by Claney ; that on or about June 30, 1904, Dickinson desiring to obtain an extension of time for the payment of said notes, made to the bank a written statement of his assets, in which he mentioned among other things an “interest in real estate northwest corner of Indiana Avenue and Twenty-fourth Street, clear $100,000, ’ ’ referring to the premises involved in this suit, and on or about July 1, 1904, represented to the bank that he owned a one-half interest in the premises and that Claney owned the other half; that on or about September 7, 1904, Dickinson, at the request of the bank, delivered to it his note bearing that date, for the sum of $11,060, payable six months thereafter, and at the same time made a written assignment to one J. 1ST. Crawford, of Mukwonago, an officer of the hank, of all his right, title and interest in and to the premises in question, together with certain notes and stock described in the assignment; and that said note of Dickinson was not given for any new indebtedness but was given to secure an indebtedness contracted and existing prior to the making of the note, and that the bank afterwards made substantial advancements to Dickinson, and took additional security; that on September 21, 1904, the defendant, Claney, in answer to an inquiry in regard to the real estate in which Dickinson claimed an interest (Dickinson having referred the bank to Claney), wrote a letter to the cashier of the bank as follows:

“In August, 1903,1 bought the property in question at Master’s sale, and paid something like $50,000 for the same on Mr. Dickinson’s order, and I am still the record holder of same. The property is well located and the building, I think, originally cost for construction in 1896 about $300,000, and certainly could not be built for less than original cost. Rentals are about $2,500 per month gross; building is in good repair, etc.; insurance $150,000.
I do not know what Mr. Dickinson’s interest is, but we have always understood it was large.”

It is further found that on February 20, 1904, Claney received a sheriff’s deed purporting to convey the premises in question under a judgment described in the evidence as the Tobey judgment; that some time in the summer of 1905, Dickinson sent to the bank a copy of an alleged contract between the complainant and John W. Dickinson and Willis P. Dickinson; that the bank and its officers never made any inquiry of Soden in regard to the property or his interest in it, nor the interest of Willis P. Dickinson nor Claney therein, nor communicated with him in any way, and that the complainant had no knowledge or information as to any claim of said cross-complainant to a lien or interest in said premises, until a short time prior to the filing of the bill.

It is next found that after the year 1904 the bank continued for several years to extend the time for payment of the indebtedness of said Dickinson, and that collaterals securing said indebtedness were changed from time to time with the consent of the bank; that the bank made no further investigation or inquiries as to the title to said premises at the time of such extensions or changes of collaterals; and it is further found that the evidence as to the acts and conduct of the bank, its officers and of the complainant is not sufficient to create an estoppel as to Soden, and that as against him the bank has no right, title or interest in said premises and no equitable lien or claim whatever upon the same.

We are of the opinion that the findings of fact are fully warranted by the evidence contained in the record. The defendant Dickinson did not offer himself as a witness, but rests upon the proposition that the complainant did not establish the case charged in the bill. The asserted dignity of this attitude is only equalled by the discretion which it displays. The huge record in the case so teems with written and other evidence of his untruthfulness and his fraudulent and dishonest practices and acts, as to have made any other course extremely inadvisable. We do not understand it to be claimed by his counsel that he now has or ever had any interest in the property which is the subject of the litigation. In any event it is clear the evidence in the case would not warrant the assertion of such a claim. In his answer the claim is made, but the fact is not asserted, that he at one time had an interest which was assigned to Claney. The language is: “This defendant further answering claims that he did have an interest in said premises and that said interest was assigned to said John Claney.”

As to the defendant Claney, it was admitted by his counsel in the oral argument that indebtedness for some amount existed in favor of the complainant and against him, for which a judgment at common law might properly be entered, but in the oral as well as well as the printed argument it was and is strenuously maintained that the acts and conduct of the complainant were such that he is not entitled to equitable relief. It is said that the bill should have been dismissed on the ground that the complainant, Soden, caused the property in question to be placed in the name of another than himself for the purpose of hindering and delaying his creditors and avoiding anticipating vexatious litigation.

Among the findings in the decree which, as heretofore said, we feel are fully warranted by the evidence, is one to the effect that Claney did not believe that Dickinson had an equitable interest in the property and did not advance any money to Dickinson because of such belief; that Dickinson and Claney conspired together to obtain title to the premises in the name of Claney and to hold the same in his name for the purpose of defrauding the complainant. We are of opinion that counsel for the complainant has made a correct deduction from the evidence, to wit, that the complainant was weak enough to be led into the folly of making untrue statements as to his interest in the property; that inexcusable as these statements were, they were advised by Dickinson as a part of his plan to put Soden in a false position. The parties are not in pari delicto. Dickinson and Claney were in Chicago, and Soden in Boston. Dickinson was the confidential agent and adviser of Soden. Dickinson is in no position to shield himself behind the contention that the complainant because he did the foolish things he was advised by Dickinson to do has no standing in a court of equity; nor is Claney in a different position, having conspired with Dickinson, as he was found to have done, to bring about the situation as it now exists. Pomeroy’s Equity, sec. 916; Herrick v. Lynch, 49 Ill. App. 657; affirmed in 150 Ill. 283.

The evidence tends to show that Soden was financially responsible; there is no proof that any creditor of his was hindered or delayed. Dickinson persuaded him that it was best for him to let the property rest in the name of someone else, and apparently created doubts in Soden’s mind as to the intentions of different ones who had or were said to have claims against the property of Soden, upon which attachment proceedings might be brought if the property stood in the name of Soden.

From the findings with reference to the cross-bill filed by the Citizens Bank of Mukwonago, which findings, as heretofore stated, we are also convinced are supported by the evidence, we are of the opinion that the cross-bill was properly dismissed. The purpose of the cross-bill was to establish as a subsisting, equitable lien upon the premises, the claim of the bank consisting of the assignment of Dickinson’s interest referred to in the findings. The letter of Claney to the bank, dated September 21, 1904, and above set forth, was in" our opinion sufficient in itself to put the bank upon inquiry as to what interest, if any, Dickinson had in this property. The assignment of Dickinson’s alleged interest was given September 7, 1904. At that time merely a master’s certificate of sale had been given to Claney; it was not until November 1, 1904, that the master’s deed was issued to him. More than two years thereafter, on May 20,1907, the bank placed on record the assignment of Dickinson?s alleged interest which it now asserts should be treated as an equitable mortgage binding upon all.

“It is essential to the application of the principle of equitable estoppel that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the state of facts, but also was destitute of any convenient and available means of acquiring such knowledge.” 11 Am. & Eng. Encyc. of Law, 434; Gallagher v. Northrup, 215 Ill. 563.

As was said in Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567: “A party desiring to claim the benefit of an estoppel cannot shut his eyes to obvious facts or neglect information easily obtainable, and then charge his ignorance to others.”

The acts and conduct of the bank, as set forth in the decree, were of such a character that, in our judgment, it cannot now claim the benefit of an estoppel as against the complainant.

It is alleged that the court erred in allowing the amended bill to be filed after the hearing and before the decree; that the court abused its decretion in ruling that the answers to the original bill should stand to the amended bill, and in refusing to permit other answers to be filed. It was held in Gordon v. Reynolds, 114 Ill. 118, that the granting of leave to amend the pleadings in chancery cases rests in the discretion of the court, and unless there is an abuse of discretion the action of the court will not be subject of review; that the amendment of a bill in chancery is properly allowed on the hearing, in furtherance of justice, to avoid the effect of a variance from the proofs; that it is not material when amendments are permitted to be made, except as to the terms the court may impose as a condition thereto; that the practice is highly commendable and absolutely necessary in a great many cases to a proper administration of justice. We are not satisfied that it was necessary in the present case that the bill be amended. Whether that be so or not the discretion vested in the chancellor was not abused. Booth v. Wiley, 102 Ill. 100; The Tremolo Patent, 23 Wall. (TI. S.) 518.

The decree entered is, in our opinion, fully justified by the record and is affirmed.

Affirmed.


text:
    Alfonso G. Mahony, Plaintiff in Error, v. Charles F. Van Winkle and Inter Ocean Newspaper Company, Defendants in Error.
    Gen. No. 19,189.
    (Not. to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Alfonso Gr. Mahony against Charles F. Van Winkle and Inter Ocean Newspaper Company, a corporation, for a libelous publication concerning plaintiff in a newspaper called the Inter Ocean, which charged the plaintiff with asking payment of a bribe as building inspector. A demurrer to the original declaration was sustained. Thereafter an amended declaration was filed, the first count of which was substantially the same as the original declaration, which was in one count. The amended declaration was filed after the statute of limitations had run. Demurrers to the first count of the amended declaration were sustained and demurrers to pleas of the statute of limitations filed to the second count were overruled. To reverse the orders sustaining the demurrers to the first count and overruling the demurrers to the pleas of the statute of limitations, plaintiff brings error.
    Edward J. Kelley and Charles C. Spencer, for plaintiff in error
    Edward H. Morris and James J. Barbour, for defendants in error.

      See Illinois Notes Digest, Vois. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

Abstract of the Decision.

1. Libel and slander, § 100 —when count in declaration demurrage. In an action for libel, a count in the declaration alleging that the libel accused plaintiff of asking payment of a bribe as a building inspector, held demurrable for the reason that it contained no inducement or colloquium, and lacked the averments that there was an office in the city of building inspector; that the plaintiff was such inspector and had such duties to perform; that the building was in the city and that a permit was necessary; and that the city had provided by ordinance rules relating to the erection or alteration of buildings, and there was no averment that any fee was required for a permit.

2. Libel and slander, § 96 —necessity of inducement. Where a count is totally lacking in the inducement, the requirement of an inducement cannot be supplied in those portions of the count called the innuendos.

3. Limitation oe actions, § 67 —when amended count in declaration does not set up new cause of action. An amended count in an action for libel does not set up a new cause of action where the cause of action stated in both the original and amended counts refers to the publication of the same alleged libelous matter.


text:
    United Flour Mills Company, Defendant in Error, v. Vaclav C. Kryda and George F. Kryda, (Defendants). Vaclav C. Kryda, Plaintiff in Error.
    Gen. No. 19,221.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Rehearing denied April 15, 1914.
    Statement of the Case.
    Action by United Flour Mills Company against Vaclav C. Kryda and George F. Kryda for loss of profits on account of refusal of defendants to take two lots of flour under a contract of sale between the parties. To reverse a judgment in favor of plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Sales, § 284

      —remedies of seller. One of the courses open to a vendor where the vendee of goods refuses to take and pay for them is to keep the goods and recover the excess of the contract price over the market price.
    2. Sales, § 341

      —when recovery for loss of profits for refusal of buyer to receive flour sustained by the evidence. In an action to recover for loss of profits caused by refusal of defendants to take flour contracted for, held that the question whether defendants were justified in refusing to take the flour because other flour taken was not of the quality required by the contract was passed upon by the jury, and that the finding of the jury was sustained by the evidence.
    3. Sales, § 342

      —when instruction allowing seller to recover difference between contract price and cost of manufacture proper. In an action by a milling company to recover for loss of profits for refusal of defendants to take flour contracted for, where the case was tried upon the theory of plaintiff that it was entitled to the difference between the contract price and the cost of manufacture, and plaintiff showed there was a market for the flour at the place of delivery and what the market price was at the time fixed for delivery, held that the case should have been submitted to me jury on that basis.
    4. Damages, § 244

      —when improper instructions harmless. Error in instructions as to the measure of damages, held harmless where the result reached by the jury was correct.
    A. Zeman and Q. J. Chott, for plaintiff in error; Frank H. Culver, of counsel.
    George E. Dawson, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Western Reserve National Bank of Trumbull County, Ohio, Appellee, v. Supply Manufacturing Company, Appellant.
    Gen. No. 19,277.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 246

      —defenses as against assignee when note secured by chattel mortgage. Under section 25, ch. 95, R. S., J. & A. 1i 7602, where notes are secured hy a chattel mortgage and have been assigned, they are subject to the same defenses as they would he if suit were brought thereon by the payee.
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Western Reserve National Bank of Trumbull County, Ohio, against Supply Manufacturing Company on several of a series of promissory notes given a manufacturer of printing presses by the defendant. The notes were secured by a chattel mortgage upon a press sold to the defendant and were assigned by the manufacturer to the plaintiff. Defendant filed special pleas setting out by way of recoupment a claim for damages suffered on account of a breach of warranty in the contract of sale. Demurrers were sustained to the pleas and judgment entered in favor of plaintiff. From the judgment, defendant appeals.
    Foreman, Levin & Robertson, for appellant.
    Lavern W. Thompson, for appellee.

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

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

   Mr. Justice Clark

delivered the opinion of the court.

2. Set-off aisfd eecotjpment, § 28 —when pleas for recoupment in suit on notes demurrable. In an action on promissory notes given in settlement for a printing press sold to the defendant under a contract of sale which contained a guaranty that the press would produce certain results after a test and provided that settlement should be made upon fulfillment of the guaranty by payment of a certain amount in cash, a used press and the balance in notes secured by chattel mortgage, special pleas setting up by way of recoupment a claim for damages for breach of the guaranty held to be no defense to the action and demurrable, it appearing that settlement was to be made only after the press was demonstrated to do the work guarantied, and the pleas not alleging that the defendant delivered the old press or made the cash payment in accordance with the contract.


text:
    The People of the State of Illinois ex rel. Albert D. Wolf, Appellant, v. The New Illinois Athletic Club of Chicago, Appellee.
    Gen. No. 19,307.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Chames M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Appeal dismissed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Petition for mandamus by The People of the State of Illinois eco rel. Albert D. Wolf against The New Illinois Athletic Club of Chicag’o, a corporation, not formed for profit, to compel defendant to restore the relator to membership. The relator was suspended for an alleged infraction of the rules of the defendant for six months, the date of his suspension beginning July 30, 1912, and the period of suspension expiring January 30, 1913. A demurrer was sustained to the petition and from the order the relator appeals.

      Abstract of the Decision.
    Mandamus, § 187

      —when appeal from order sustaining demurrer to petition will he dismissed. On appeal from an order sustaining a demurrer to a petition for mandamus to compel a club, a corporation formed not for pecuniary profit, to restore petitioner to membership after he had been suspended, the appeal was dismissed for the reason that a copy of the record was not filed in the Appellate Court until after the period of suspension had expired.
    Friedman & Ader, for appellant; William Friedman, of counsel.
    Harry P. Simonton, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Emma J. Herzog, Appellee, v. German National Life Insurance Company, Appellant.
    Gen. No. 19,344.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Emma J. Herzog against German National Life Insurance Company to recover on a policy of reinsurance issued upon the life of John A. Herzog, plaintiff, the wife of the insured, being named beneficiary therein. From a judgment in favor of plaintiff, defendant appeals.

      Abstract of the Decision.
    Insurance, § 706*—when evidence sufficient to sustain recovery on policy of reinsurance. In an action by a beneficiary on a life insurance policy where the facts showed that a policy had been issued by another company and that the defendant Company had taken over the business of the former company and reinsured its policy holders, and had issued the policy sued on, held that there was sufficient evidence to show that the policy upon which the judgment was based was in force as a reinsurance of the insured by the defendant in pursuance of its contract with the former company, and that a judgment in favor of plaintiff was sustained by the evidence.
    Samuel Shaw Parks, for appellant.
    George A. MgCorkle, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.


text:
    J. C. Shaffer & Company, Appellee, v. The Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 19,358.
    Carriers, § 168

      —when limitation of liability in bill of lading governs as- to measure of damages in interstate shipments. Limitation in a bill of lading limiting the value of goods shipped in case of loss or damage to the value thereof at the place and' time of shipment, held controlling as to the measure of damages for the negligence of a carrier in an interstate shipment coming within the provisions of section 20 of the Interstate Commerce Act as amended by the Carmack Amendment in 1906, where the shipper chooses to take the reduced rate provided in the uniform bill of lading.

      Appeal from the Circuit Court of Cook county; the Hon. Paul McWilliams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 31, 1914.
    M. L. Bell and A. B. Enoch, for appellant.
    Chester Arthur Legg, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.

This case was heard in the Circuit Court upon a stipulation of facts as follows:

“On December 24, 1909, plaintiff purchased from John I. Clover, of Kansas City, Mo., 5,000 bushels of wheat at 99.5 cents per bushel delivered Chicago. December 27, 1909, Clover delivered to the defendant at Kansas City, Mo., said 5,000 bushels of wheat in various cars, including car C. R. I. & P. No. 34217, containing 1433 bushels and 20 pounds. This car was shipped by said Clover to ‘shipper’s order, notify J. C. Shaffer & Company, Chicago, Illinois,’ but owing to the negligence of the defendant the car was diverted and misdelivered, and plaintiff, the owners of the wheat in said car and the holders of the bill of lading, endorsed, never received the same. When the wheat in said car was delivered to the defendant at Kansas City, the latter issued a bill of lading acknowledging receipt of the wheat, and undertook to transport the same to Chicago and there deliver to the shipper’s order. Among the conditions printed on the bill of lading was the following:

‘The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper, or has been agreed upon, or is determined by the classifications or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such, computation, whether or not such loss or damag’e occurs from negligence.’

The attention of plaintiff was not called to conditions on the bill of lading, nor was the attention of the shipper called to same. In the tariffs of defendant, which were filed with the Interstate Commerce Commission and posted as required by law, the,. following was contained:

‘4. A. Unless otherwise provided, when property is transported subject to the provisions of the Western Classification, the acceptance and use are required, respectively, of the “Uniform bill of Lading”, “straight” or “order”, as shown on pages 10 and 12.

B. Paragraph B. gave an option to the consignor of shipping his property either subject to the terms and conditions of the Uniform Bill of lading1, or under the liability imposed upon common carriers by the common law or Federal and State statutes applicable thereto. It stated that this Western Classification provided for different rates and for different forms of bills of lading, to be used as the consignor may elect to have a limited liability or a common carrier’s liability service.

C. Paragraph C. stated that property would be carried, unless otherwise provided in this classification, at the reduced rate specified if shipped subject to all the terms and conditions of the Uniform Bill of Lading. It further stated that if the consignor did not wish to ship subject to the terms of the said uniform bill of lading, he should notify the agent at the time of shipment, and that if he did not give such notice it would be understood that he desired the property carried subject to the terms and conditions of the Uniform Bill of Lading, in order to secure the reduced rate.

D. This paragraph stated that property not carried subject to the terms of the Uniform Bill of Lading would be carried on basis of carrier’s liability limited as provided by common law and by the laws of the United 'States and of the several states, in so far as they apply, but subject to the terms of the uniform bill of lading, in so far as said terms are not inconsistent with said carrier’s liability. This paragraph further provided that the rate charged for property not shipped under the said terms of the Uniform Bill of Lading would he 10 per cent, higher than the rate charged for the property shipped subject to said terms of the Uniform Bill of Lading.

E. This paragraph provided that when the consignor gave notice to the agent of the forwarding carrier that he did not elect to accept the Uniform Bill of Lading, but desired carrier’s liability service at the higher rate, the carrier must stamp upon the bill of lading a clause signed by the agent, reading: “In consideration of the higher rate charged the property herein described will be carried at the carrier’s liability, limited only as provided by law, but subject to the terms and conditions of the Uniform bill of Lading in so far as they are not inconsistent with such common carrier’s litbility.” ’

The bill of lading in this case was a Uniform Bill of Lading straight, and was published in full, including the above mentioned conditions on the back thereof, in the tariffs of the defendant. At the point of shipment the consignor did not give notice to the agent of defendant that he elected not to accept all the terms of the Uniform Bill of Lading, and consequently the shipment was shipped at the reduced rate provided in the tariffs for shipments moving on said Uniform Bill of Lading.

The shipper paid the freight on this car of wheat, based on a rate of 12 cents per 100 pounds. This rate of 12 cents was the proportional Missouri river rate on grain to Chicago, effective July 1, 1907. The Uniform Bill of Lading, with the provision set out in full above, substituting the invoice price of shipment as the measure of damages in case of loss or damage, in place of the value at destination, the measure of damages at common law, went into effect December 1, 1908. The rate of 12 cents above mentioned has not been changed since July 1,1907, (defendant makes the admission in this paragraph subject to its objections for materiality and relevancy).

When the car failed to arrive in Chicago, plaintiff notified defendant that it was compelled to purchase another car in place of same in order to fill outstanding contracts which it had made for the delivery of the car in question. The market having risen, the plaintiff was compelled to pay $1.03% per bushel and present claim for the loss occasioned thereby, being the difference between 99% cents per bushel and $1.03% per bushel, in addition to the invoice price remitted to said shippers.

The defendant concedes its liability for $1,322.96, being the invoice value of the wheat at Kansas City, to-wit: 99% cents per bushel, less the freight charges, 12 cents per 100 pounds. This sum plaintiff refused to acept.

Additional stipulation of facts. After the original stipulation of facts hereinbefore mentioned was signed, defendant paid to the plaintiff $1,322.96, which was the amount for which the defendant conceded its liability under the original stipulation of facts, and the plaintiff accepted this sum under an agreement between the parties that the payment would be without prejudice to its rights to recover from defendant the damages claimed in the declaration and in the original stipulation of facts.”

Judgment was entered in favor of the plaintiff for $57.33. The only question presented for review is whether the measure of damages as fixed by the bill of lading shall control, or the measure of damages as fixed by the common law. If the bill of lading controls, then the loss or damag'e for which the defendant is liable is to be computed on the basis of the value of the wheat (being the bona fide invoice, if any, to the consignee, including the freight charges if prepaid) at the place and time of shipment. If the latter view is to control, then the measure of damages is the value of the wheat at Chicago less freight charges.

The case comes within the provision of section 20 of the Interstate Commerce Act as amended by the Car-mack Amendment in 1906. We have had occasion to consider the effect of this amendment. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 180 Ill. App. 256. The case referred to has been reviewed by the Supreme Court and affirmed in 262 Ill. 400. We said in that case that the law respecting the duties and responsibilities of common carriers of interstate shipments is now to be found wholly in the acts of Congress as construed by the United States Supreme Court; that as declared by that court, Congress has so manifested a purpose in the Carmack amendment to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment as to supersede all State regulation upon the same subject, including the provisions of State constitutions or laws invalidating contracts limiting the carrier’s liability. Adams Express Co. v. Croninger, 226 U S. 491; Chicago, St. P. M. & O. R. Co. v. Latta, 226 U. S. 519; Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513; Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657. The rule laid down in the case last cited we think is applicable to the case now before us. It is there said:

“The liability imposed by the statute (referring to the Interstate Commerce Acts and particularly to the Carmack amendment) is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.”

Prior to the rendition of the decision last referred to the Court had said in the Croninger case, supra:

“It has therefore become an established rule of the common law, as declared by this court in many cases that such a carrier may by a fair, open, just and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage, to an agreed value made for the purpose of obtaining the lower of the two or more rates of charges, proportioned to the amount of risk.”

In the brief of plaintiff it is said: “It has further been demonstrated that the stipulation in the Uniform Bill of Lading limiting the measure of recovery from a carrier to the invoice price at the time and place of shipment even for loss due to its negligence is not an effort to agree upon a bona fide valuation of the commodity shipped, hut, is hoth in fact and on principle, an attempt to impose upon the shipper an arbitrary and unreasonable amount as a measure of his recovery from the carrier even for the latter’s negligence.” This was the contention also of the plaintiffs when the matter now before us was before the Interstate Commerce Commission. J. C. Shaffer & Co. v. Chicago, R. I. & Pac. Ry. Co., 21 Interstate Commerce Commission Reports 8. (Prior to this decision the uniform bill of lading had been approved by the Interstate Commerce Commission.) In dismissing the complaint the commission said: “After a careful consideration of this subject, which is in effect a reconsideration on our part of this section of the uniform bill of lading, we are not convinced that the provision assailed in this proceeding has been shown to have operated in an unreasonable or unlawful manner in connection with complainant’s shipment.” The tariffs were published and filed as required by law, and the Uniform Bill of Lading was printed upon them. This publication and filing made the tariffs binding upon the shipper as well as the carrier. The case of Plaff v. Pacific Exp. Co., 251 Ill. 243, referred to by plaintiff, was decided before the determinative decisions of the United States Supreme Court heretofore referred to were made, and in our opinion, as heretofore expressed, is no longer authoritative. Gamble-Robinson Commission Co. v. Union Pac. R. Co., supra. It is admitted that by paying an additional amount the plaintiff might have held the defendant to its common-law liability; that is to say, for the full value of the wheat at Chicago less the transportation charges. It chose, however, to take the reduced rate, and the case of Adams Exp. Co. v. Croninger, supra, is controlling.

The judgment of the Circuit Court is reversed.

Beversed.


author: Mr. Presiding Justice Graves

text:
    Alfred E. Croft, Plaintiff in Error, v. Samuel E. Beecher, Defendant in Error.
    Gen. No. 18,541.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by Alfred E. Croft against Samuel E. Beecher to recover an amount claimed to be due on a subscription agreement for stock. The agreement was signed by the defendant and assigned to the plaintiff. To reverse a judgment in favor of defendant, plaintiff brings error.
    The instrument sued on is set out as follows:
    “Application Blank No.......
    Par Value $1.00 per share.
    Dated, Sept. 22nd, 1910.
    No stock sold Less Than Par.
    Subscription for Capital Stock
    Professional Investment Company.
    To Messrs. Pratt and Company,
    Fiscal Agents,
    79 Dearborn Street, Chicago.
    You are hereby authorized and empowered to purchase for me, 100 shares of the common stock of the Professional Investment Company, for which I agree to pay to your order, the sum of One Hundred Dollars, payable in the following manner, to-wit; $10.00 down and $10.00 per month until paid for.
    SPECIAL NOTICE.
    All payments on account of this subscription must be in New York or Chicago Exchange drafts or Post Office Orders made payable to the Professional Investment Co. care of Messrs. Pratt & Co., Fiscal Agents.
    Samuel E. Beecher.
    Applicants Name in full.
    1021 Masonic Temple.
    Address.”

      Abstract of the Decision.
    1. Contracts, § 192

      —when memorandum following signature or appearing on baclc of instrument construed as part of the agreement. In construing a contract any memorandum either following the signature or on the back or margin of the instrument, made by the agreement of the parties or with their knowledge and acquiescence, contemporaneously with its execution must be treated as forming part of the contract, the same as if it was in the body of the instrument; and where there is no claim or proof that such memorandum was not on the instrument when it was executed and delivered, it will be presumed to have been made contemporaneously with the instrument.
    2. Corporations, § 113

      —assignability of subscription agreement for stoclc. A subscription agreement for stock in which payment tor the stock is conditioned upon the issuance of the stock, held not a negotiable instrument so that upon assignment thereof the assignee would acquire a legal interest enforceable in courts of law.

      On the back of this instrument the following appears :
    “In receiving this subscription, the Fiscal Agents, their agents or employes, or companies they represent, make no statements or representations other than what appears in the printed literature issued by the companies which speak for themselves.
    No contract, agreement or statement made by our agents or employes are valid, other than written in this blank and approved of by the secretary to the company in writing.
    Messrs. Pratt & Company,
    Fiscal Agents.
    For value received, the within contract and all the payments due or to become due thereunder are hereby assigned to Alfred B. Croft.
    (Signed) PEAT.T AND COMPANY.”
    Samuel Shaw Parks, for plaintiff in error.
    Ela, Grover, March & Eckert, for defendant in error.

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

      See Illinois put! oído) ornes ‘AX °I IX 'SPA ‘ísoSiq sojo.fi siomni eog*

   Mr. Presiding Justice Graves

delivered the opinion of the court.

3. Bills and notes, § 100 —essentials to negotiability. In order that an instrument shall be negotiable it must amount to an independent promise to pay at all events, at a certain time, to a definite person, a definite amount without condition.

4. Bills and notes, § 129 —sufficiency of indorsement to transfer negotiable instrument. An assignment of a negotiable instrument by a written indorsement of the agents of the owner without signing as agents of the owner, held not to transfer title.

5. Appeal and ebbor, § 969 —when certificate of stock not presented for review. A certificate of stock cannot be considered on review where it was not introduced in evidence or in some way preserved in the record.

6. Contracts, § 358 —when affidavit of merits insufficient to put in issue execution of instrument. An affidavit of merits stating that “said alleged contract was never fully executed’’ because a certain payment was not made, held not to put in issue the execution of the contract.


text:
    Welsbach Street Lighting Company of America, Defendant in Error, v. Julia K. Burdick, Plaintiff in Error.
    Gen. No. 18,601.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by Welsbach Street Lighting Company of America against Julia K. Burdick to recover for rental for certain street lamps installed by the plaintiff. The action was based on an instrument in writing1 purporting on its face to be a contract between a certain “Business Men’s Association” and the plaintiff Company, wherein the plaintiff Company agreed to furnish and install certain lamps for street lighting and the association agreed to pay for the lamps at the rate of ■ sixty dollars per post per year in monthly payments. The instrument was never executed by the Association but was duly executed by the plaintiff Company. Between the attesting clause and the signature of the plaintiff Company a list containing the names of forty persons and business houses appeared, and following the signature a second list of names of persons appeared, the last name on the list being that of defendant. There was no evidence in the record to show how any of the names came to be on the list, excepting that of the defendant. As to her name it appeared that the chairman of a committee of the association procured her signature. The proof showed that she was not a member of the association and there was nothing in the record to support a finding that the persons composing the lists signed as and for an unincorporated association of individuals. To reverse a judgment recovered against the defendant for thirty dollars, defendant brings error.
    Abstract of the Decision.
    Contracts, § 207

      -—when person signing written instrument not bound thereby. When an instrument in writing purports on its face to be made by certain parties named therein and the signature of a party not named therein appears to the instrument, it is not the deed or contract of such last named party, and parol testimony is not admissible to show that he intended to bind himself thereby.
    P. H. Bishop, for plaintiff in error.
    Goodrich, Vincent & Bradley, for defendant in • error; Joseph M. Grifpin, of counsel.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Charlotte Hirschl, Appellant, v. Estate of Isabella G. Meeker, Appellee.
    Gen. No. 18,645.
    (Not to be reported in full.)
    Abstract of the Decision.
    Executors and administrators, § 211

      —when estate of a grantee in a conveyance assuming a mortgage not liable on note. Where a person in her lifetime by warranty deed took a conveyance of certain real estate subject to a trust deed, there being a provision in the warranty deed that the grantee did not assume or become personally liable for the payment of the note secured by the trust deed, held that such person not having signed the note and not having assumed or undertaken to pay the same in the transaction in which she became owner of the real estate, her estate was not liable thereon, and this although she had signed an agreement for extending the time for the payment of the note.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Proceeding in Probate Court in which Charlotte Hirschl filed a promissory note, secured by a trust deed, as a claim against the estate of Isabella Gr. Meeker, deceased. The claim was disallowed in the Probate Court and on appeal to the Circuit Court the claim was again disallowed. From the judgment of the Circuit Court, the claimant appeals.
    Hirschl & Hirschl, for appellant.
    Bradley, Harper & Eheim, for appellee; Thomas E. D. Bradley, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Illinois Publishing and Printing Company, Appellee, v. The Peoples Gas Light and Coke Company, Appellant.
    Gen. No. 18,662.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 29

      —when striking affidavit of merits and claim for set-off from files is error. In an action to recover pay for publishing advertisements, defendant filed an affidavit of merits alleging that the defendant in pursuance of a written contract with plaintiff purchased a contract for advertising space in another publication subsequently absorbed by plaintiff and alleging that it was the duty of plaintiff to publish advertisements for defendant and apply the charges on the contract for space purchased by defendant. Defendant also filed a claim of set-off for breach of contract. Held that the court erred in striking the affidavit of merits and the claim of set-off from the files.

      Appeal from the Municipal Court of Chicago; the Hon. Habry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by Illinois Publishing and Printing Company against The Peoples Gas Light and Coke Company to recover pay for publishing advertisements in the Chicago Examiner at the instance of the defendant,' the plaintiff being a corporation engaged in printing and publishing a newspaper' known as the Chicago Examiner. Judgment was entered in favor of plaintiff on a directed verdict for $1,767.40. From the judgment, defendant appeals.
    Sears, Meagher & Whithey, for appellant; James G. Meagher and Edwih Hedrick, Jr., of counsel.
    Boy D. Keehh, for appellee.

      Sea Illinois Notes Digest, Veis. XI to XV, same topic and section number.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Set-oee and recoupment, § 10 —when claim for set-off not for unliquidated damages. A claim of set-off for breach of contract to publish advertisement held not for unliquidated damages, where there was no conflict as to the value of the space used or as to how much in dollars and cents the space used represents, and the amount still due under the contract being a mere matter of subtraction.

3. Appeai and ebror, § 969 —when written instrument not presented for review. A writing which was not introduced in evidence and nowhere preserved in the record is not presented for review.


author: Mr. Justice Baume

text:
    N. Landon Hoyt, Defendant in Error, v. Schillo Motor Sales Company, E. W. Schillo and A. G. Schillo, Plaintiffs in Error.
    Gen. No. 18,721.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by N. Landon Hoyt against E. W. Schillo and A. G-. Schillo, copartners doing business as Schillo Motor Sales Company, to recover damages for failure of defendants to comply with the terms of a contract for the exchange and sale of two automobiles. To reverse a judgment in favor of plaintiff for six hundred dollars, defendants bring error.
    Rice & O’Neil, for plaintiffs in error.
    Wabben Pease, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and garages, § 4*—when automobile firm liable on unsigned contract for sale and exchange of machines. A person desirous of trading his automobile for another negotiated with an automobile firm and a written proposal was submitted to him in which he was to be allowed a certain amount for his machine. Such party on inspection of the papers made some changes and interlineations as to matters of minor consequence and the proposal was signed by him and by a salesman in the trade name of the firm with the understanding that because of the changes and interlineations the papers should be rewritten and returned to the purchaser for signature. The corrected copy was never delivered and the members of the firm refused to comply with the agreement claiming they were not hound by the signature of the salesman. Held that the members of the firm were hound by the proposal though they had not affixed their signature thereto, it appearing that they affrmatively expressed their assent thereto and had acted thereon in negotiating with a customer for the sale of the contemplated purchaser’s machine.

2. Contracts, § 53*—when party not signing is bound. A contract signed by only one of the parties is mutual and binding on both, if the other party, upon its delivery to him, assents to its terms and holds and acts upon it as a valid agreement. *