text:
    Peter C. McArdle, Petitioner, Appellant, v. City of Chicago et al., Defendants, Appellees.
    Gen. No. 16,503.
    1. Civil service — increase in salary and volume of work does not constitute creation of new office. Where the duties of a city cement tester are increased in volume but not in kind together with a raise in salary, which is appropriated and paid for a number of years under the title “One Chief Tester in Charge,” this does not constitute the creation of a new office.
    2. Civil service — effect of approval of increased pay roll tty commission. Where the civil service commission approves and certifies the increased pay roll attached to an office without requiring an additional examination, it amounts to a finding that such change in salary did not involve such a change in duties as to require an examination.

      3. Mandamus — when demurrer to petition will he overruled. Where a petition for mandamus shows that the complainant is entitled to some of the relief prayed for, a demurrer thereto will be overruled.

      Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed August 12, 1912.
    Rehearing denied June 24, 1912.
    McArdle & McArdle and John A. Watson, for appellant.
    Edward J. Brundage, Clyde L. Day and William H. Sexton, for appellee; Herbert J. Friedman, of counsel.
   Mr. Justice Graves

delivered tlie opinion of the court.

On May 11,1908, appellant filed in the Circuit Court of Cook county his petition for a writ of- mandamus to he directed to the City of Chicago, its mayor and certain other officers, commanding that he he restored to the honors, duties, responsibilities and emoluments of the office of “Cement Tester” of the City of Chicago, from which office he avers he had been previously ousted. A demurrer was interposed to the petition. Upon a hearing the demurrer was sustained and the petition was dismissed. This is an appeal from that order.

Appellees contend that the petition does not disclose a clear right in the petitioner to have the relief prayed for and that the demurrer was properly sustained.

The following allegations appear in the petition, i. e.:

“That prior to May 23, 1898, the City of Chicago, which is hereby made party defendant hereto, maintained in its Public Works Department a branch or bureau, which was then termed Testing Laboratory, Bureau of Engineering’, in charge of one Charles J. Kelly, who enjoyed the title of Chief Cement Tester, and in said laboratory, cements, sands, brick and other building material furnished by contractors on municipal work were subjected to tests to ascertain if they conformed to the terms of contracts and specifications under which they were furnished to the City of Chicago.
“That said Charles J. Kelly held his position as such Chief Cement Tester as a temporary appointee and he had sole charge of the laboratory and had one assistant under him.
“And on or about June 1, 1898, the said Commissioner of Public Works by.one H. J. Spengler, Assistant Engineer of Tunnels, assigned yonr petitioner to the position theretofore held by said Charles J. Kelly as Cement Tester, the said assignment being made by letter, which your petitioner prays may be taken as part hereof and is in the words and figures following:
‘June 1,1898.
Mr. Charles J. Kelly,
Cement Tester.
Dear Sir:
As per Civil Service certification, the bearer, Peter C. McArdle, is assigned as cement tester to take your place. Will you kindly turn over to him all your records, and other material, and show him every courtesy?
J. H. Spengler,
Asst. Eng. Tunnels.’
“That your petitioner on such assignment immediately took charge of said laboratory and the one assistant therein employed at the time of said assignment and has ever since until the receipt of the communication hereinafter set forth, of March 12, 1908, from John Ericson, City Engineer, continuously, uninterruptedly and without question from any source, remained in charge of said laboratory and all the tests made therein, and was during all said period the Chief Tester thereof and in charge thereof.
# * * # * # * # * *
• “That at said last mentioned time (December, 1905) your petitioner filled the highest position in said testing laboratory which was open; that he could achieve no promotion and no higher salary than he had, by any promotional examination under the Civil Service Law and the Rules of the Civil Service Commission.
“That by reason of the work as added from time to time to said laboratory, the labor and responsibility of your petitioner as the person in charge thereof increased and your petitioner was informed of the further contemplated increase and in and about said month of December, 1905, he applied to his superior officers to recognize his increased labor and responsibilities and added professional attainments, as well as his faithful service in said laboratory and the efficiency to which he had brought it, in an increase of salary, and your petitioner having theretofore qualified for appointment to service under the United States of America in support of his request for this recognition, submitted to his superior officers the evidence of his qualifications for such service and also a communication from the Chief Engineer of the Geological Survey, Department of the Interior, United States, offering to your petitioner the position in the United States Service of Cement Expert.
“That the then City Engineer, Commissioner of Public Works and Mayor took the matter under consideration and recognizing the facts aforesaid, on or about December 15, 1905, came to a decision which, reduced to writing and signed by the then acting City Engineer, was in writing also approved by the then Commissioner of Public Works and Mayor, which decision is hereby made part hereof and is in the words and figures following, viz:
‘Chicago, Dec. 15, 1905.
J. M. Patterson,
Commissioner of Public Works.
I deem it advisable and practicable to enlarge the work now covered by P. C. McArdle, Cement Tester, Burean of Engineering, to the extent of adding to his duties which he is now performing the testing of all oils used for pumping machinery, the testing of brass and cast iron castings used in the water works shops, the testing of brick, sand, paints, varnishes, and all other materials that are used in construction, and ultimately instead of hiring inspecting engineers to send to the various shops where machinery is under construction, to send men directly from this Bureau.
I am fully satisfied that Mr. McArdle is fully capable, and has the knowledge to take hold of this class of work, and to make a success of it, and his honesty and integrity are highly recommended. If you approve of this plan it will add to Mr. McArdle’s duties and responsibilities, and I recommend that his salary be made $250 per month and arrangement be made at once to carry out the above suggestions.
Tours truly,
W. A. Shaw,
Engineer in Charge.’
“That at the time of the said decision and approvals thereof, there were in full force and effect certain rules oí said Civil Service Commission known as Bules II., V. and IX., which were and are in the words and figures following, viz:
‘Bule II.
**********
Divisions and Grades.
Sec. 5. Change of Compensation: Increasing the compensation of any position in the classified service, whereby the grade of such position as established by the classification is changed, whether done by ordinance or otherwise, shall not affect the tenure of the incumbent of such office or place of employment, unless in the opinion of the Commission such changes shall involve a change' in duties requiring a different examination.
Bule V.
Sec. 6. Duties Bather Than Name to Be Considered: In certifying to requisitions, the duties of the position to he filled, rather than the name by which it is called, shall be considered, and it shall be the duty of the Commission to inquire into the requirements of the position for which a requisition has been made and to certify from that list of eligibles which shall, in its judgment, nearest conform to the requirements of the position to be filled.
Bule IX.
Beports to be Made.
Sec. 1. Appointing Officers to Beport: For the purpose of certification to the Comptroller for the payment of salaries, as required by Section 30 of said Act, and in order that the Commission may keep proper record of changes in the service, each appointing officer shall immediately report to the Commission, as required by Section 13 of said Act:
(c) Every change in the compensation of any officer or employee serving under him.
* * * * * * * * * *
Sec. 2. Change or Abolition of Office or Compensation : "When any office or place of employment is created or abolished, or the compensation attached thereto altered, the officer or board making such change shall immediately report it, in writing, to the Commission.
Sec. 3. Civil List:. A list to be known as the Civil List of the City of Chicago, shall be kept in the office of the Commission, to contain the name of every person employed in, or receiving compensation in, the classified service. The list shall show respecting every officer and employe: The title of his office, the time he has held such office, the time he has been in the service of the City of Chicago, and the places in that service he has filled.
Sec. 4. Payments of Salaries: As provided in Section 31 of said Act, no payment in compensation for services rendered, after the taking effect of these rules, can be made by the City, or any of its officers, to a person holding a position in the classified service until it appears either that he was employed in such position before these rules took effect, or that he has been employed under the provisions of the same, and is holding his position in accordance therewith. ’
“That the foregoing rules are all the rules of said Commission bearing upon the subject therein treated, and the statute creating said Civil Service Commission and in force at the time aforesaid, provided as follows, viz:
‘Sec. 13. _ Reports to Commission: Immediate notice in writing shall be given by the appointing power, to said Commission, and all appointments, permanent or temporary, made in such classified Civil Service, and all transfers, promotions, resignations, or vacancies from any cause in such service, and of the date thereof; and a record of the same shall be kept by said Commission. When any office or any place of employment is created or abolished, or the compensation attached thereto altered, the officer or board making such change shall immediately report in writing to said Commission.’
“That in accordance with the provisions of said rules and the said statute in such case made and provided, the appointing officers of the department in which your petitioner held his said place of employment, immediately and on or about December 18, 1905, reported in writing to said Civil Service Commission the alterations of the compensation to your petitioner as Cement Tester, viz: Salary increased from $125 per month to $250 per month, on City Engineer’s Miscellaneous Roll.
“That at its meeting of the 18th of December, 1905, said Civil Service Commission received said report and spread a minute thereof on the records of said meeting.
* * # # # * # * * *
“That in-each and every appropriation made for said Testing Division since your petitioner’s salary was so increased as aforesaid, an appropriation has been made for $3,000 for the the salary for the fiscal year appropriation of your petitioner under the title of ‘Chief Tester in Charge.’
* * * * * * * * * *
‘ ‘ That all payments made out of said appropriations of $3,000 for the years 1906, 1907 and 1908, for ‘Chief Tester in Charge,’ up to and including the February, 1908, payment, have been paid to your petitioner, and to him alone, and on his said salary of $3,000 per year, or $250 per month, and never until the occurrence hereinafter set forth has any officer of the City or any other person questioned your petitioner’s right to have his said salary of $3,000 per year or $250 per month paid from and out of said sums of $3,000 each in, said respective appropriation bills for ‘Chief Tester in Charge,’ and in each and every payroll from December, 1905, to and including February, 1908, your petitioner’s salary at $250 per month has been set off to him under the designation ‘ Cement Tester,’ and the Comptroller of the City of Chicago has during said period honored said payrolls, and they were each duly approved by the Civil Service Commission, and out of said appropriations of $3,000 for Chief Tester in Charge, the City Treasurer has paid your petitioner’s said salary on said payrolls.
* # & # # # * * * #
“That said sum of $3,000 in said appropriation bill of 1908 for ‘Chief Tester in Charge,’ was expressly inserted therein for your petitioner’s salary; that the members of the City Council Finance Committee, when said item was under consideration, were informed and knew that the said item was for your petitioner’s said salary, and for none other; that the City Council when passing, and the Mayor of the City of Chicago when signing said appropriation bill, knew and were and had been publicly informed on the floor of the council chamber that said appropriation was for your petitioner’s said salary and for none other.
“That ever since the said 18th of December, 1905, and until the occurrence hereinafter mentioned, the City Engineer has in the monthly payrolls of his bureau set forth your petitioner’s monthly salary at the sum of $250 and returned his, your petitioner’s title in such payrolls as ‘ Cement Tester; ’ that the Comm issioner of Public Works has monthly approved said payrolls and your petitioner’s salary therein stated, and submitted the same with his approval thereof to the Civil Service Commission, and that said Civil .Service Commission has monthly during that period certified the same to the City Comptroller, and the said City Comptroller has at all times during the period last aforesaid, recognized the said appropriation of $3,000 for ‘Chief Tester in Charge’ as being the fund from which your orator’s salary as ‘Cement Tester’ is payable, and the said City Treasurer has paid his, your petitioner’s, said monthly salary from said appropriation of $3,000.
‘ ‘ That there was not in existence at any time during the period covered by the matters herein alleged, either de jure or de facto, any office, in or under the City of Chicago called or known by the name of ‘ Chief Tester in Charge,’ or of any similar designation, nor was there in existence during said period either de jure or de facto any position or place of employment in the official or classified service of the City of Chicago called or known by the name of ‘Chief Tester in Charge,’ or of any similar designation, nor was there during said period anywhere on the records of the said Civil Service Commission of the City of Chicago the record of any position or place of employment either de jure or de facto, called or known by the title ‘ Chief Tester in Charge,’ or by any similar designation and your petitioner further alleges and charges that when and wherever said title of ‘Chief Tester, in Charge’ or any similar title was used in the departments of the City of Chicago and in the records and ordinances of the City of Chicago, it was used exclusively to designate the position of Cement Tester, to which your position had been as aforesaid certified and appointed.”

The demurrer admits these averments to be true.

It is inferentially conceded by appellees, and indeed cannot be denied, that the petition sufficiently discloses that the office of “Cement Tester” existed in Chicago as a branch of its Public Works Department, called Testing Laboratory, Bureau of Engineering, from and including 1898, until and including 1908; that it was within the City Civil Service Law then in force in the City' of Chicago; that in 1898 petitioner was duly and regularly appointed to that office under the City Civil Service Law and the rules, practices and usages of the City Civil Service Commission, and that he continued to hold and fill that position, at least until December, 1905; that petitioner and his predecessor in office, while in charge of the office of Cement Tester, was, in fact, chief of that laboratory. It is not claimed by appellees that any proceeding, conducted for the ostensible purpose of creating a new or higher position in that department, or in connection with that laboratory, to be known as ‘ ‘ Chief Tester in Charge, ” or of promoting appellee to a new or higher position to be known by that title, was ever had, but it is strenuously insisted by them that the proceedings that took place in December, 1905, by which additional duties were imposed on petitioner and additional compensation was provided for him, and the subsequent proceedings by which appropriations were made in 1906, 1907 and 1908 for a “Chief Tester in Charge,” and such funds paid to petitioner, amount, by implication, to the creation of a new position superior to the position of Cement Tester and the promotion of petitioner to such position without a compliance with the Civil Service Laws and Rules, and that such promotion was, therefore, void.

From the averments of the bill it is manifest that in December, 1905, it was intended by the persons then acting in the premises to increase the duties and pay of petitioner as “Cement Tester,” but not to create any new position or to promote petitioner to a new position. It is further manifest that no new position was formally created and no promotion of petitioner was formally made. Before a court can hold that such was the unintentional and inadvertant result of the acts of the parties, such acts must have been of a character to preclude any other construction. Otherwise, the specific and positive averments in the petition that there never was such an office or officer as ‘ Chief Tester in Charge, ’ ’ and that the petitioner from the time he was first made “Cement Tester” continued to be such, and such only until unlawfully ousted in 1908, must prevail.

To promote is, according to Webster’s International Dictionary, “To exalt in station, rank or honor; to elevate, raise, prefer, advance.” As applied to the Civil Service Laws of New York, the courts of that state have defined the term to mean the advancement of an official or employee to a higher position who had previously been appointed to one of an inferior degree. McGuire v. Byrnes, 70 Hun, 760.

The acts disclosed by the petition, which appellees claim amount to a promotion, are the assignment to petitioner of additional duties to perform, the raising of petitioner’s salary, and appropriation of the sum of $3,000 for the years 1906, 1907 and 1908 under the title “One Chief Tester in Charge,” and the payment of the money so appropriated to petitioner.

The work of the Cement Tester in the Testing Laboratory, when petitioner was inducted into that position, was, as shown by the petition, the testing of cements, sands, brick and other building materials (not enumerated), furnished by contractors on municipal work, to ascertain if they conformed to the terms of contracts and specifications under which they were furnished to the City of Chicago. The added duties recommended by the engineer in charge were, “the testing of oils used for pumping machinery, the testing of brass and iron castings used in the waterworks shop, the testing of brick, sand, paint, varnishes and other materials, that were used in construction, and ultimately, instead of hiring inspecting engineers to send to the various shops where machinery is under construction to send men directly from this Bureau.” So far as the materials to be tested are concerned, there is nothing added. Every one of the materials included in this recommendation, namely, oils, brass and iron castings, brick, sand, paints, varnishes and other materials that are used in construction are “building materials” and are included in the list of materials being tested when petitioner first became Cement Tester, namely, “cements, sands, brick and other building material,” and those not so used were of the same general character as those, so used. The difference between the added and the original duties being that the original duties required the testing of only so much of such materials as were furnished by contractors on municipal work, while by the recommendation all such materials used in construction, whether furnished by contractors or obtained from other sources were to be tested by petitioner. The added duties were, therefore, in volume and not in hind of work. It certainly has never been, and cannot be, held that increasing the amount of work to be done by an officer of a given class is a promotion.

It must be conceded that a promotion involves not only the induction of the one promoted into the higher position, but likewise the removal of such one from his former subordinate position, so that it goes without saying that if petitioner was promoted from “Cement Tester” to “Chief Tester in Charge,” he was, after such promotion, no longer “Cement Tester.”

By Section 5 of Bule II of the City Civil Service Commission, quoted above, it is expressly provided that increasing the compensation of a position shall not affect the tenure of office of the incumbent of such position, wnless in the opinion of the Civil Service Commission such changes shall involve a change in duties requiring a different examination. The petition in this case shows that after the salary of petitioner was changed from $1,500 to $3,000 per year in December, 1905, this change was duly reported to the City Civil Service Commission under Section 13 of the City Civil Service Laws, and Buie IX of that Commission, above quoted, and that the Commission required of petitioner no other, different or additional examination, but on the contrary, from month to month from December, 1905, to March, 1908, that Commission approved and certified petitioner’s pay rolls for $250 per month under the title of “Cement Tester,” thereby approving in the most unqualified manner the increase in petitioner’s compensation, without requiring the additional examination required if the Commission was of the opinion that such a change in salary involved such a change in duties as to require an additional examination. This amounted to a finding that the Commission was not of the opinion that the change in salary involved such a change in duties as to require such an examination. Such a determination involved the judgment, opinion and discretion of the Commission, and is not subject to review here. County of St. Clair v. People, 85 Ill. 396; Kelly v. City of Chicago, 62 Ill. 279; People v. Dental Examiners, 110 Ill. 180; City of Chicago v. People, 114 Ill. App. 145-155. That being the finding of the Civil Service Commission, it follows that the tenure of office of petitioner as “Cement Tester” was not affected by the increase in his salary, and that when he was ousted in March, 1908, he was still holding and filling that position.

It is true that for three years an appropriation ordinance was passed including an appropriation of the sum of $3,000 for “One Chief Tester in Charge.” The object and office of an appropriation ordinance is to set aside such “sums of money as may be necessary to defray all necessary expenses and liabilities” of the city. An office cannot be filled, created or abolished by an appropriation ordinance. The fact that no appropriation is made to pay the salary of a certain officer of a city might prevent for a time such officer from collecting his salary, but it would in no way affect his tenure of office. Neither would the fact that an appropriation ordinance includes an appropriation for an office that does not exist create such office. We think no inference can be drawn for or against the petitioner in this case from the appropriation ordinances referred to. Neither is the fact that the money appropriated for “One Chief Tester in Charge” was paid to petitioner, significant in determining the question before us, in view of the fact that the averments of the petition show that the appropriation was in fact intended for and paid to him as, and by, the title of “Cement Tester.” Chicago v. Luthardt, 191 Ill. 516.

The contention of appellee that there was a promotion of petitioner from the office of “Cement Tester” to the office of “Chief Tester in Charge,” by implication or in effect, is not supported either by the isolated or combined averments of the petition. On the contrary, we think the petition clearly shows not only that petitioner was never promoted from the office of “Cement Tester,” but that no such office as “Chief Tester in Charge,” so called, existed in the City of Chicago during the time in question.

It is further urged by appellees that the petition is faulty because more relief- is prayed for than the petitioner is in any event entitled to, and that for that reason the demurrer was properly sustained. Waiving the question as to whether the petitioner can obtain all the relief prayed for, if, in his petition, he has asked for some relief that he has shown himself clearly, entitled to, the petition is still good, even though he may have sought some relief he can not obtain. Illinois Watch Case Co. v. Pearson, 140 Ill. 423.

After a careful consideration of the petition in question in the light of the objections made to its sufficiency by appellees, we are forced to the conclusion that it discloses a clear right in petitioner to at least part of the relief prayed for, and that the demurrer to it should have been overruled.

The order of the Circuit Court, sustaining the demurrer and dismissing the petition, is, therefore, reversed and the cause is remanded to that court with directions to overrule the demurrer.

Order reversed and cause remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    Chicago & Western Indiana Railroad Company, Appellant, v. Chicago & Eastern Illinois Railroad Company, Appellee.
    Gen. No. 16,153.
    1. Chancery — who are necessary parties. On bill against a railway company to enforce alleged covenants to use the terminal facilities of another incorporated company exclusively, such terminal company is a necessary party to the bill though the “tenant” companies owning all the stock therein are before the court.
    2. Chancery — when corporation not estopped by decree against its owning corporations. An incorporated railway company is not estopped from bringing a bill to enforce alleged covenants to use its facilities exclusively, though its stock is owned by five companies, and on action by four of such companies against the fifth to enforce the same covenants a decree was entered against the complainants.
    3. Laches — what constitutes. It would seem that laches depends on whether the complainant is chargeable with want of due diligence in not instituting proceedings sooner and not on whether any definite time has elapsed since the cause of action accrued.

      4. Laches — when not waived. Where a railway company alleged to be bound by covenant to use the terminal facilities of another company is permitted by contract by the terminal company, though under protest, to construct connecting tracks with another company and to use other facilities without prejudice to rights under the covenants, such terminal company must bring its action on the covenants within a reasonable time, though possible future litigation is mentioned in the contracts but no waiver of the defense of laches is mentioned therein.
    5. Contracts — when cannot be implied. No implied promise to use a terminal company’s station permanently by a railway company which owns part of the stock of the terminal company can be deduced from the fact that tracks connecting with those of another company were not built when the terminal station was constructed and that at the time of such construction the railway company intended to use the station permanently.
    6. Covenants- — what considered in construing. Where action is brought by a railway company, all the stock of which is owned by five other companies, to enforce an alleged covenant against one of such companies to use its terminal facilities exclusively, the fact that such terminal company is independent only in name should be considered in construing the covenants.
    7. Corporations — when action is practically that of majority of stockholders against minority. Where a railway company, all of the stock of which is owned by five other companies, brings action against one of such companies to enforce alleged covenants to use the terminal facilities of such railway company exclusively, the litigation is practically that of the owners of four-fifths of the stock against the owner of one-fifth.
    8. Courts — when expressions of federal court in action on same subject-matter not “gratuitous.” Where the same contracts which were before the federal court in a former action are before the Appellate Court and the decree sought is practically the same, the expressions of the federal court as to such contracts are not “gratuitous” and if dicta are judicial dicta and not obiter dicta.

    Appeal from the Circuit Court of Cook county; the Hon. G. A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 1, 1912.

      William S. Kies, Kretzinger, Rooney & Kretzinger, and Scott, Bancroft & Stephens, for appellant; George W. Kretzinger, Frank H. Scott, W. O. Johnson and W. H. Blodgett, of counsel.
    Calhoun, Lyford & Sheehan, for appellee; Will H. Lyford, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The appeal in this case brings up for review the action of the Circuit Court of Cook county in sustaining a demurrer to a bill in chancery filed by the appellant against the appellee, and dismissing the bill for want of equity.

The appellant, the Chicago & Western Indiana Railroad Company, is a corporation organized under the • laws of the State of Illinois, the stock being held in equal amounts by the appellee, the Chicago & Eastern Illinois Railroad Company, also an Illinois corporation, and four other companies, the Grand Trunk Western Railway Company, Chicago & Erie Railroad Company, Chicago, Indianapolis & Louisville Railway Company and the Wabash Railroad Company, commonly known as the “Grand Trunk,” “Erie,” “Mo-non” and “Wabash,” respectively, all of the capital stock having been acquired by these five companies in 1882. These five companies are referred to in the briefs, and will be hereafter referred to in this opinion, as the “tenant companies.” For some time prior to 1882, and until August 1, 1904, the Eastern Illinois used in conjunction with the other four railroads the Dearborn Station, so-called, in the City of Chicago. In August, 1904, the control of the Eastern Illinois having passed into the hands of the Chicago, Rock Island & Pacific Railway Company, .the Eastern Illinois abandoned the use of Dearborn Station and began to use the same passenger station as the Rock Island Company. A few months prior thereto suit was brought in the Circuit Court of the United States for the Northern District of Illinois by the Grand Trunk, Erie, Monon and Wabash companies against the Eastern Illinois, seeking a decree by which the Eastern Illinois would be enjoined from the threatened breach of its alleged obligation to use Dearborn Station for its passenger traffic at Chicago. Upon hearing, this bill was dismissed for want of equity by the United States Circuit Court, and its action on review was sustained by the United States Circuit Court of Appeals. Grand Trunk W. Ry. Co. v. C. & E. I. R. Co., 141 Fed. Rep. 785. In that case thirteen agreements were before the court for consideration, being the same agreements upon which the bill of complaint in the case before us is based. A careful analysis of them has been made by Mr. Justice Jenkins in the statement of facts preceding the opinion of the Court of Appeals.- We shall not undertake herein to make another analysis of these agreements, which are of great length, but shall refer to such statement. A note to the opinion sets forth the views expressed by Judge Seaman when disposition was made of the case in the United States Circuit Court. In both of the opinions it was held that the contracts before the court contained no covenant which expressly or impliedly bound the Eastern Illinois to use the tracks and facilities during the term (except the so-called exclusive property), but that they merely granted the right to such use. Both courts, however, expressly held that the Western Indiana Company was a necessary party to the bill, and that in its absence no relief could in any event be granted the complainants.

The bill prays for a perpetual injunction restraining the appellee from continuing to divert its business, or any part thereof, from the demised premises, or from any part thereof, and from failing or refusing to operate its passenger trains over the complainant’s tracks between Dolton and the terminus of said tracks at Dearborn Station; that appellee be restrained from using the terminal tracks or passenger station of any other corporation for its traffic at Chicago; that it be decreed to perform the covenants of the leases for the entire term, and that damages be awarded the appellant by reason of the diversion of the appellee’s business ; that the court ascertain the monthly sum claimed to be due appellant from appellee for its proportion.of the costs and charges paid out by the appellant by reason of the diversion of its business from August, 1904, and that the appellee be decreed to pay to the appellant the sum of $551,246.50, with interest thereon, from the date of the delivery of certain bonds to the appellee, and that the interest on such bonds be capitalized to the date of their maturity, and the appellee be decreed to pay the capitalized account thereof.

The contentions of the appellee are substantially as follows: That there are no express covenants contained in any of the leases or agreements, which require the Eastern Illinois to use any part of the track or railroad facilities, or any station, of the complainant for any length of time or to any given extent, after the first day of July, 1902; that no covenants for such use can reasonably be implied from any express covenants in the instruments or by the mortgages given by the complainant; that the bill shows no damages of any kind suffered by the complainant; that if there had been express covenants in the leases and agreements they cannot be enforced, being contrary to public policy; that the complainant has been guilty of laches in bringing the suit, and that it is now estopped also by reason of the decree entered in the United States Circuit Court and heretofore referred to.

The appellant company is described by its counsel as “ah agency, owned and controlled by appellee and the other tenant companies, whose function was to operate and maintain the,terminal properties, for their benefit.” It is described by appellee’s counsel as being a mere “paper company.” These descriptions are evidently suggested by the very unusual manner in which the affairs of the appellant are conducted. The stock is held in equal proportion by the five tenant companies, each of which companies is also obligated to pay one-fifth of the interest and principal of the bonds issued by the appellant. By contract it is arranged that this interest and principal be paid direct to the trustees under the trust deed by the tenant companies, and not through the appellant. Under various contracts, the maintenance expenses of the appellant are to be met by the five tenant companies and divided among them on the basis of wheelage. Any “surplus earnings” received for the use of its tracks from others than the five tenant companies, together with those from other sources, are paid quarterly direct to the five tenant companies in equal proportion, apparently without the formality of a dividend being declared. No one of the five companies under the contracts may dispose of its stock in the "Western Indiana without offering it first to the other tenant companies. No company other than the five may be allowed by the Western Indiana to use its tracks, except with the unanimous consent of all five companies. Each of the five companies has representation on the board of directors. At directors ’ meetings, if the minutes of one which appear in the record correctly show the practice, the directors vote not in their individual names as directors, but in the names of the companies which they respectively represent. It was provided in one of the contracts that while the Western Indiana should have the general control and management of all the common property, and the employment and supervision of officers and employes, its acts and doings should be such only as the lessees should unanimously approve. In this way the appellant has by contract attempted at least to place limitations upon itself in the performance of its corporate functions. Unlike an ordinary corporation, the conduct of its affairs, if the contract is enforceable, is not to be what a majority of the board of directors or a majority of the stockholders deem proper for its best interest, but its actions are limited to such as are approved by its so-called tenants, who must act unanimously. The tenants are the stockholders, and under the contracts a proposed action by the company might be blocked by the holder of one-fifth of the stock. Whether a corporation, such as the appellant, may thus limit itself by contract is, in our opinion, a question of great doubt, but one not necessary to be passed upon in this • opinion. The appellant is a corporate legal entity, created as such under the laws of the State of Illinois. No decree, therefore, could properly be entered affecting its corporate rights in a suit to which it was not a party. Hence the Federal Circuit Court and the Court of Appeals properly held, we think, that the objection raised by the Eastern Illinois in that case, that the Western Indiana Company was a necessary party to the bill, was well taken. This conclusion was reached notwithstanding the fact that the owners of all the stock of the Western Indiana Company, to-wit, the five tenant companies, were before the court. It must logically follow, in our opinion, that the appellant is not estopped by the decree entered against the four of its stockholders who appeared as parties complainant in the suit referred to.

The question of laches of the appellant presents a somewhat more difficult question. The Eastern Illinois had run its passenger trains into the Eock Island station for three years before this suit was brought. It was enabled to do this by reason of a contract entered into between it and the Western Indiana made in 1904, whereby the latter granted a temporary license to the Eastern Illinois to construct tracks connecting the Western Indiana with the Eock Island tracks. By a provision of the contract, no advantage was to be obtained, or even claimed, by the Eastern Illinois because of this license, in the case then pending in the Federal Court, and the Western Indiana reserved to itself all rights under the various contracts, without prejudice. In January, 1907, nearly two years after the decision was rendered in the. United States Circuit Court of Appeals, the Western Indiana served notice upon the Eastern Illinois that under the contract of February 23, 1904, it would proceed to remove the connecting tracks between the Western Indiana and the Bock Island sixty days from the date of the service of the notice. On March 12th, of the same year, a contract was entered into between the parties, wherein it was recited that the Western Indiana was about to file a bill to enjoin the Eastern Illinois from diverting its passenger trains, and provision was made for .the continued use by the Eastern Ulinois of the connecting track between the Western Indiana and the Bock Island during the pendency of the suit. A constructive compliance with the resolution passed by the board of directors of the Western Indiana was arranged for by the agreement that a rail or frog might be removed by the Western Indiana and thereafter restored.

It has been held that the question of laches depends not upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether under all the circumstances the complainant is chargeable with want of due diligence in not instituting the proceedings sooner. (Townsend v. Vanderwerker, 160 U. S. 171.) The complainant having aided in what is now claimed to be a violation of contract by permitting, though under protest, the construction of the connecting tracks and the use thereof pending a judicial test as to the construction of the various agreements, in our opinion it was incumbent upon it to bring its action in a court of competent jurisdiction within a reasonable time. We do not lose sight of the fact that possible future litigation was mentioned in the two contracts with reference to the construction and use of the connecting tracks, but we find in neither of the contracts any hint of a waiver on the part of the Eastern Illinois of a defense of laches.

If a decree should be entered in the present case in accordance with the prayer of the bill, the Eastern Illinois would be required to pay to the Western Indiana an amount equal to what its proportion would have been if it had continued to use the station, such amount to be measured by its passenger traffic in the City of Chicago. It is apparent that this sum for the period of three years during which the Western Indiana refrained from beginning suit would be very large.

Has the Eastern Illinois by its action in ceasing to use the Dearborn Station and the tracks therein and those leading thereto, violated any provisions of the contracts between it and the complainant. In the contracts made with Brown, wherein he agreed to construct the terminals, through a corporation by him to be formed, there is a distinct provision requiring the use of all the property during the full term covered. In the contract made shortly thereafter between the Western Indiana and the Eastern Illinois such a provision is absent. In all the subsequent contracts which were made from time to time between the Western Indiana and the Eastern Illinois, individually, and with it in connection with the other four tenants, we are also unable to find any express provision requiring a continuance of the use of any portion of the common property by all or any one of the tenants during the period covered by the contracts or leases. The various instruments bear evidence of such careful preparation and they are so explicit in their terms as to preclude entertainment of the idea that such omission was not by design. The optimistic presumption was apparently indulged in that the use of the terminal in all its parts would always be sought.

Counsel for appellant lay great stress upon the proposition advanced, that under the various contracts “the extent of the use to which appellee is bound is measured by its legitimate traffic in the City of Chicago, and the amount of its payments must be in proportion to the wheelage of all that traffic.” It is argued that “no one of the tenants could conduct its Chicago traffic without using Dearborn Station, which was erected specially to accommodate the business of each.” It is quite apparent that each of the tenants could conduct its freight traffic without the use of the station, and that the passenger traffic of appellee could otherwise be accommodated is made clear from the contract entered into just prior to the beginning of the present suit, in which it is recited that the Eastern Illinois had established connections with the Bock Island and was able to bring in its passenger trains via Oakdale and South Englewood to the Bock Island station. It may be that these connections had not been made at the time the Dearborn Station was constructed and that it was the then intention of the Eastern Illinois to use that station permanently, but we are unable to deduce from that fact any implied promise on its part so to continue its use. On the other hand, we think the deduction might fairly be made that the Eastern Illinois and the other tenants refused to be bound to a continuous use in order that they might' make other arrangements if the station facilities became inadequate, or if for any other reason a change of passenger terminal by any one of them should in the future appear to be advantageous.

It has heretofore been pointed out that the Western Indiana is independent only in name, and this fact we think should be considered in construing the various contracts. If one of the five limited its use of some portion of the common property, or ceased entirely to use such portion, it was still obligated to pay its proportion of the cost and interest thereon. The additional burden cast upon those who continued to use it was the possibility of having to pay severally a larger proportion of the cost of maintenance. It is easy to be supposed that they might willingly do this if by the withdrawal of one of the number the facilities accorded to them were increased. The "Western Indiana would not be the loser; its maintenance would be assured, unless all five of the tenants deserted it, and this was evidently not considered as a possibility.

The litig’ation, so far as practical results are concerned in this court, as in the Federal Court, is really that of the stockholders owning four-fifths of the stock of appellant against the stockholder owning the one-fifth.

We are admonished by counsel for appellant not to be influenced by the “gratuitous expressions of opinion nsed by the Federal Court.” The same contracts were before that court for construction as are now before us, and the decree sought practically the same. The expressions used are therefore not “gratuitous.” If dicta, they are judicial dicta, as distinguished from obiter dicta. (Rhoads v. C. & A. R. R. Co., 227 Ill. 328.) They are not in any sense controlling, but are entitled to great consideration.

As we find nothing in the contracts, either express or implied, requiring the continued use of the passenger terminal, it becomes unnecessary to discuss the proposition advanced by the appellee that if they could be said to contain such provisions the provisions would be void as being against public policy. The same observation might be made as to many propositions advanced by appellant.

Without prolonging the opinion to greater length, we state it as our conclusion that the demurrer to the bill of complaint was properly sustained. It follows, therefore, that the decree of the Circuit Court must be affirmed.

Affirmed.


text:
    George Zoeller, Plaintiff in Error, v. Henry Schmitz, Defendant in Error.
    Gen. No. 16,895.
    1. Weapons — burden of proof in action for injuries from negligent use. The burden is on one having entire control of a gun, which is discharged and injures another, to prove that the gun was not fired by him either intentionally or negligently, but that the result was inevitable and without the least fault on his part in a case where the gun was only resting in his lap as well as when it was actually in his hands.
    2. Teiap — improper Iinstructions. An instruction that if the jury believe from the evidence that any witness had wilfully and knowingly sworn falsely to any material fact in the case, or that any witness had wilfully and knowingly exaggerated any material fact or circumstance for the purpose of deceiving, misleading or imposing on the jury, the jury might reject the entire testimony of such witness, unless corroborated by other evidence or by facts and circumstances appearing in the case, is improper as requiring the entire testimony to be corroborated.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    Foell & Barnhart, for plaintiff in error.
    O’Donnell, Dillon & Toolen, for defendant in error.
   Mr. Presiding Justice Clark

delivered tlie opinion of the court.

Suit was brought by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, hereinafter called the defendant, for damages on account of injuries received through the discharge of a gun belonging to the defendant.

It would seem from the record that the plaintiff and defendant had been hunting and sat down to rest near a ditch. They were about four or five feet apart, facing east or northeast, and defendant being a little southeast and in front of plaintiff. The plaintiff sat with his feet pulled up against his body. They were in this position when a third person, named Conner, came up to them from the south. Conner stopped in front of them, and was about four or five feet away, facing west. At this time the defendant’s gun was in front of him, lying across his knees, the muzzle being about four or five feet from plaintiff’s feet and pointing about a foot and a half or two feet in front of him. The plaintiff asked the defendant if the gun was safe, and the defendant said it was, and after picking it up laid it back in the same position. The defendant then asked to examine Conner’s gun. The latter took the shells out of it and handed it to the defendant. While defendant was examining Conner’s gun the defendant’s gun was discharged, the shot striking plaintiff’s right leg just above the ankle, necessitating its amputation between the ankle and the knee.

The case was tried before the court and a jury, the verdict of the jury was in favor of defendant. Judgment for costs was rendered against the plaintiff, from which judgment this appeal has been perfected.

At the request of the defendant the court gave the following instruction:

“The court instructs the jury that the burden of proof in this case is not upon the defendant to show that he is not guilty of the specific negligence charged in the declaration, but that the burden is upon the plaintiff to prove that the defendant was guilty of the specific negligence charged in the declaration, and this rule as to the burden of proof is binding in law and must govern the jury in deciding this case. The jury have no right to disregard said rule or to adopt any other in place thereof, but in weighing the evidence in coming to a verdict the jury should apply the rule as above stated and adhere strictly to it. No presumption that the defendant was guilty of any negligence arises from the mere fact that the accident happened,”

We think the instruction erroneous. The rule is that if a person is injured by the discharge of a gun in the hands of one who has entire control of it, the burden is upon the latter to prove that the gun was not fired by him either intentionally or negligently, but that the result was inevitable and without the least fault upon his part. Atchison v. Dullam, 16 Ill. App. 42; Cole v. Fisher, 11 Mass. 137; Bahel v. Manning, 112 Mich. 24; Morgan v. Cox, 22 Mo. 373. In the cases cited it would seem that the weapon was in the hands of the defendant, but we think the rule should be the same whether the gun was actually in the hands of the defendant or in his lap, as in the case before us.

A second instruction which is objected to is as follows :

“The jury are instructed that it is a principle of law that if you believe from the evidence that any witness has wilfully and knowingly sworn falsely to any material fact in the case, or that any witness has wilfully and knowingly exaggerated any material fact or circumstance for the purpose of deceiving, misleading or imposing upon the jury, either as to the nature or extent of the injury, or as to the manner of the alleged accident in question, then the jury have the right to reject the entire testimony of such witness unless corroborated by other evidence which you believe, or by facts and circumstances appearing in the case.”

This instruction in substance seems to have been condemned in C. & A. R. R. Co. v. Kelly, 210 Ill. 449, as requiring credible evidence to be believed. It is also erroneous in requiring the entire testimony to be corroborated. It is urged by the appellee that the instruction is approved in Chicago City Ry. Co. v. Bundy, 210 Ill. 39. In the latter case, however, the point made in the former case and in the one which we are now considering does not appear to have been raised, and the form was different,in other respects.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Me. Presiding Justice Clark

text:
    Morris Levy, Plaintiff in Error, v. J. Frohlich & Co., Defendant in Error.
    Gen. No. 17,201.
    1. Appeal and eeeoe — sufficiency of record. Under Municipal Court Act, § 23, par. 6, which provides for the making up of the record for appeal hy the judge’s approving a' statement of facts prepared hy counsel, or a stenographic record, and adding a statement of all questions of law involved in the case, a document filed as a “stenographic report,” which is neither a statement of facts proved on the trial nor attempts to set out all questions of law involved in the case, is insufficient for appeal and should he stricken from the files.
    2. Appeal and eeeoe — sufficiency of record. No questions are presented for determination on appeal from a judgment of the Municipal Court where the record does not contain a “statement of facts proved on the trial” and “all questions of law involved In the case” or a “stenographic report” of the proceedings as required by Municipal Court Act, § 23, par. 6.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Max Luster, for plaintiff in error; J. Ambrose Gearon, of counsel.
    Moses, Rosenthal & Kennedy, for defendant in error.
   Me. Presiding Justice Clark

delivered the opinion of the court.

The writ of error in this case presents for review a judgment entered in the Municipal Court of Chicago in favor of the defendants in error, who were the defendants in the court below, upon a claim of set-off. A motion was made hy the defendant in error to strike from the record, amongst other things, an instrument alleged to be a stenographic report. This motion was reserved to the hearing of the case.

The document referred to is shown by the record to have been filed as a “stenographic report.” The certificate of the judge is in the following language: .

“And inasmuch as the foregoing proceedings do not sufficiently appear of record the plaintiff tenders this his statement of facts proved upon the trial, in accordance with the statute in such case made and provided and prays that the same may be signed and sealed by the judge of the Municipal Court before whom such case was tried and made a part of the record which is done accordingly * * * .”

Apparently an attempt was made in this way to comply with the 6th paragraph of section 23 of the act creating the Municipal Court. An inspection of the document shows that it is not a “statement of facts proved upon the trial,” nor does it attempt to set out “all questions of law involved in the (such) case,” as required by the statute. Seehausen Wehrs & Co. v. Interstate S. & I. Co., 150 Ill. App. 179. The motion to strike it from the files is therefore allowed.

No questions of law or fact are presented which can be considered by us in the absence of such a statement or stenographic report, and the judgment is therefore affirmed.

Affirmed.


text:
    Rudolph S. Blome and William J. Sinek, Trading as Rudolph S. Blome Co., Defendants in Error, v. Illinois Portland Cement Paving Company, Plaintiff in Error.
    Gen. No. 17,217.
    1. Estoppel — necessity of encouraging prejudicial acts. Though persons licensed to lay pavement containing an invention covered by letters patent wrote letters to the licensors which stated the amount of pavement laid under the terms of the contract, they were not thereby estopped, in an action for sums due under the contract, from showing that the letters were written under a misapprehension as to what the terms of the contract covered and that the material laid was not the substance covered therein, as there was no misrepresentation of fact which either induced or encouraged the licensors to act differently than they otherwise would have acted.
    2. Contracts' — construction. Under a contract which licensed persons to lay pavement containing an invention covered by letters patent, requiring the making of reports to the licensors of the laying of any pavement containing the invention, the paying therefor of a certain sum per square yard, and reserving to the licensors the right to contract to lay pavements and to license others, the licensee is not required to use the patent of the licensor in all the pavement constructed, but merely to do the things agreed on in case it does so use the material.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    S. E. Lambert, for plaintiff in error.
    Perley H. Bishop, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In December, 1908, the defendants in error, hereinafter called the plaintiffs, issued a license to the plaintiff in error, hereinafter called the defendant, to lay pavements in the City of Chicago, “embodying and containing the invention of said letters patent,” the letters patent being described as No. 855,105. In the contract granting the license it was provided that the defendant should make full and true reports in writing to the plaintiff, under oath if required, within thirty days after the completion of the laying by it of any pavements “containing the invention of said letters patent,” and to pay within thirty days after the completion of the work twenty-five cents per square yard. The plaintiffs reserved to themselves the right to enter into any public or private contracts for the laying of pavements, and also the privilege of licensing any other person, firm or corporation to lay pavements in the City of Chicago by public contract. The plaintiffs further agreed to use their best efforts to secure any permits from the City of Chicago that the defendant might desire.

The record shows that in July, 1909, a statement of the indebtedness admitted to be due to the plaintiffs was made by the defendant, detailing the number of yards of pavement said to have been laid and to be subject to the terms of the contract, and a remittance was made for the amount at twelve and one-half cents per square yard. The change from twenty-five cents to twelve and one-half cents per square yard is apparently not explained. In December, 1909, a similar statement was made showing, as expressed, “a total yardage of 6,661% square yards.”

There was a trial before the court without a jury, and a finding for a portion of the amount claimed, and a judgment entered thereon.

It is insisted by the'defendant, first, that the pat-" ent No. 855,105 was not issued to the plaintiffs and did not cover improvements in pavements and methods of making the same. There was,' however, introduced in evidence patent No. 856,105 and it is evident that the court rendered the finding upon the assumption that the latter patent was the one intended to have been referred to in the contract and the one the parties had in mind when the contract was entered into. At the .trial the defendant attempted to show that the letters written, which included a statement'of the amount of pavement admitted therein to have been laid under the terms of the contract, were written under misapprehension; that the defendant did not know at the time it entered into the contract what was covered by patent No. 855,105 or by No. 856,105; that after writing the letters it discovered that the pavement which it had been laying was not covered by tbe letters patent, bnt was of a very different mixture and very different construction. Tbe court'held that it was estopped by the letters it had written from making this defense. In this we think the court erred. There was no misrepresentation by the defendant, and there is nothing which it did which either induced or encouraged the plaintiffs to act differently than they otherwise would have acted. Weaver v. Peasley & Co., 163 Ill. 251.

Defendant was not required by the contract to use the patent of the plaintiffs in all the paving which it constructed. The contract merely provides that when pavement was laid by the defendant of the kind protected by the plaintiffs’ patent (wrongly described) it should pay the amount specified. We think the evidence with reference to the matter should have been received. The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Max Herman, Defendant in Error, v. Wolf Herman, Plaintiff in Error.
    Gen. No. 17,235.
    Bills and notes — sufficiency of evidence in action oil. In an action on a collateral promissory note tried by a court without a jury, evidence held to sustain a finding for plaintiff.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Samuel J. Richman, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion, of the court.

Suit was brought upon a collateral promissory note. After a default was claimed to have been made in the payment of instalments due upon the note in accordance with its terms, the collateral was sold or alleged to have been' sold by the plaintiff. A claim of set-off was interposed by the defendant. Judgment was rendered in favor of the plaintiff in the sum of $50.

From the record it would appear that the note was for the sum of $435; that $10 was paid upon it soon after its date; that the court allowed the defendant $300 as for the amount received on the sale of collateral, and also allowed $75 upon the claim of set-off. The argument presented rests entirely upon the questions of fact.

We have carefully examined the record, and are unable to say that the conclusion reached by the trial court was against the weight of the evidence, and the judgment will therefore be affirmed.

Affirmed.


text:
    J. P. Grier, etc., Plaintiff in Error, v. Thomas A. McClory, Defendant in Error.
    Gen. No. 17,255.

      Sales — default of buyer in continuing contract as excusing seller. Though a seller of milk, under a contract providing that payment for all milk delivered in one month should be made on the fifth day of the next, did not furnish the amount of milk contracted for during a certain month, where the buyer neither paid the amount due nor made a distinct offer to do so by setting off his damages.for the failure of the seller to fully perform, on the date payment was due, the buyer could not recover damages for a failure to deliver after a repudiation of the contract by the seller on account "of such nonpayment.

      Error to the Municipal Court of Chicago; the Hon. John C. Scovkl, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    Harry M. Rosenblum, for plaintiff in error.
    Stedman & Soelke, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, hereinafter called the defendant, for the value of 112 cans of milk claimed to have been delivered by the plaintiff to defendant during the months of June and July, 1910, the amount of the claim being $116.20. This was at the rate of one dollar per can for the June deliveries and one dollar and ten cents for the July deliveries. The defense was that plaintiff and defendant had entered into a written contract for the purchase and delivery of milk, and that plaintiff did not deliver all the milk contracted for, and by reason thereof the defendant sustained damage to the amount of more than $500. No dispute, except possibly as to one can, was made by the defendant to the plaintiff’s claim, and the case was tried upon the claim of recoupment and set-off interposed by the defendant.

A written contract purporting to have been made April 1, 1910 was introduced in evidence. In this contract it is recited that the plaintiff sells and the defendant buys nine to twelve eight-gallon cans of whole milk each and every day during the period beginning April 1st and ending October 1,1910, the milk to be delivered at the Green street milk platform of the Chicago, Milwaukee & St. Paul Railway; prices being fixed at from one dollar to one dollar and twenty-five cents per can and payment to be made at the office of the plaintiff on the fifth day of every month for all milk sold and shipped during the preceding month.

Plaintiff testified that defendant asked Mm if lie would not take Stanford’s dairy, from Eound Lake, and lie said lie would if lie could get a contract for a specific amount, and that the contract was then given. It would appear that the first deliveries were made before the contract was executed, as it is uncontradicted that the contract was signed by the defendant, or his wife in his behalf, some time after April 20th, wMle deliveries began the early part of the month. The full minimum of nine cans per day was not delivered during the months of April and May, hut the defendant testified that he bought milk from others on the same platform at the same prices. During the latter part of May the defendant received from the Stanford dairy and the Mailfald dairy ten or eleven cans per day. On May 27th the defendant requested the plaintiff to notify Stanford not to ship any milk on the Sunday and Monday following, as he was going away and could not use it. Plaintiff testified that he called defendant’s attention to the contract and said: “I will notify Mr. Stanford not to ship, hut I fear he will stop shipping altogether. This will be at your own peril and risk, and I will not he responsible to furnish you that amount of milk after that date in case Stanford refuses.”’ That this statement was made is denied by the defendant. After May 28th there were no shipments made from the Stanford dairy, hut from other sources plaintiff delivered to the defendant about two cans per day until about July 20th. Between the 5th and 20th of July plaintiff on several occasions demanded the amount due for the June shipments, which under the terms of the contract was payable July 5th. Not receiving this amount he ceased delivering, and thereupon brought suit.

The court before whom the case was tried allowed the defendant $309.17 on his claim of recoupment, and deducted therefrom the claim of the plaintiff, and gave judgment in favor of the defendant against the plaintiff for $192.97.

It is insisted by the plaintiff that the contract was modified on May 17th by the action of the parties; that it was terminated at the instance of the plaintiff on July 20th or thereabouts because of the refusal of defendant to pay for June deliveries; that the claim of set-off is based upon matters entirely distinct from the subject-matter of the suit, and should therefore have been disregarded, being for unliquidated damages; and that the finding of the court was against the evidence.

There is evidence in the record that the defendant repeatedly demanded from the plaintiff during the months of June and July that there be delivered to him each day the amount called for in the contract.

It is stated by the counsel for defendant in his brief that it is conceded that unliquidated damages arising out of an independent and different contract than that sued upon cannot be claimed by way of set-off, but that it is the settled law that such damages may be claimed by way of recoupment if they arise under the same contract, where the party claiming same is not in default.

Was the defendant in the present case in- default? On his theory the plaintiff was in default during the whole of the month of June, but during that month the defendant accepted the milk that was delivered to him, and under the terms of the contract this should have been paid for on July 5th. It was the duty of the defendant at that time either to pay the amount due to the plaintiff, or to make a distinct offer to do so by setting off Ms damages. According to defendant’s testimony, it was not until the latter part of July and after deliveries had ceased that he made any such offer.

In the case of Bradley v. King, 44 Ill. 339, the court had before it a suit brought by the vendee for failure to deliver a quantity of lumber in accordance with the terms of a written contract. It appeared, however, that the plaintiffs had refused to pay for the last cargo of lumber delivered to and accepted by them. The court held: “If the plaintiffs sought at the time of the delivery of the last cargo to .pay for it by setting off their damages, it was incumbent upon them to have made a distinct offer so to do to the defendants. ’ ’ The doctrine of this case was reaffirmed in Harber Bros. v. Moffat Cycle Co., 151 Ill. 84, and in Burt v. Garden City Sand Co., 237 Ill. 481. It is true the defendant testified that he was ready, willing and able at all times to comply with the contract on his part. He did not, however, on July 5th comply with it, in that he did not tender payment for the June deliveries, or even offer to set off the amount due on such deliveries again# his claim for damages. We think, therefore, that there can be no recovery on the claim of recoupment for any failure of the plaintiff to deliver after the contract was repudiated by the plaintiff for the failure of the defendant to pay for the June deliveries. As heretofore stated, there was a dispute between the parties as to what occurred at the time deliveries were ordered to be stopped on May 29th and 30th, the defendant having testified, “Mr. Crier did not tell me at any time that Stanford would get sore if he stopped the milk for two days, or that he, Crier, would not be responsible if I insisted on it. On the contrary, lie said it was all right.” The trial court was evidently of the opinion that the contract was not modified by this occurrence and the attitude of the parties in regard to it thereafter. Even in this view' of the evidence, however, it would seem that the amount awarded in recoupment must have included damages for nondelivery after the date of the rescission, and for this reason the judgment must be reversed.

iJudgment reversed and cause remanded.


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    Henry F. Norcott and James M. McManus, Partners as H. F. Norcott & Co., Defendants in Error, v. Carrie L. Downe and George E. Downe, Plaintiffs in Error.
    Gen. No. 17,282.
    1. Brokers — sufficiency of evidence in action for commission. In an action by brokers for a commission alleged to have been earned upon a sale of tbe defendant’s property, evidence beld to sustain a finding for tbe plaintiffs.
    2. Appeal and error — review of conflicting evidence. A determination by a trial court as to tbe credibility of witnesses on conflicting evidence is conclusive on appeal.
    Error to tbe Municipal Court of Chicago; tbe Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in tbe Branch Appellate Court at tbe March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Strong & Mecham and Warren B. Wilson, for plaintiffs in error.
    John S. Hummer, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case recovery was had by the defendants in error against the plaintiffs in error for a commission claimed to have been earned by them in the sale of the residence property of the plaintiffs in error.

Only questions of fact are involved. It is the contention of the plaintiffs in error that the sale was one that they had made themselves before the defendants in error had anything to do with the matter, and that this was known to the defendants in error; that the defendants in error were promised a commission only upon the condition that they secured a better price than $17,500, and that the defendants in error were unfaithful in that they did not attempt to procure $22,500 for the property, as they were instructed. It is further charged that the defendants in error did not properly conduct the transaction with the proposed purchaser, in that they offered the property at a lower price than directed to do.

The case was tried before the court without a jury. We have carefully examined the abstract of record and briefs and arguments in the case, and are unable to say that the conclusion reached by the trial judge was erroneous. In some particulars the testimony seems to have been conflicting. The trial judge having before him the witnesses was in mnch better position to determine their credibility, respectively, or the lack of it than are we.

Affirmed.


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    Novak & Wolf Company, Defendant in Error, v. Vicenzo Cutia, Plaintiff in Error.
    Gen. No. 17,297.
    Account, action on — sufficiency of evidence. In an action on account, evidence held not to sustain a judgment for the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. J. D. Tubnbaugh, Judge, presiding. Heard in the Branch Appellate Court at' the March term, 1911.
    Reversed.
    Opinion filed October 1, 1912.
    O’Donnell & O’Donnell, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

. A writ of error was taken out, bringing to this court for review a judgment entered against the plaintiff in error and in favor of the defendant in error in the sum of $200. No appearance was entered by the defendant in error in this court.

It seems that Cutia, the defendant, had been dealing with the Novak & Wolf Company for some time. On December 14, 1910, an account was rendered showing payments made October 18th and 28th and November 28th, the first two payments being for $26.50 each, and the third one for $50. These were all made to one Joseph Richardo, who had taken the orders from Cutia. The evidence further shows that the sum of $200 was paid to Richardo on December 3rd.

The contention of the defendant in error in the court below was that Richardo was unauthorized to collect money. It was admitted that he had been accustomed to collect money and had turned over the three payments mentioned to his employer. It was attempted to be shown that some sort of notice had been given to Cutia to the effect that Richardo was no longer the agent of the Novak & Wolf Company. This attempt, however, failed.

It is impossible to read the record without coming to the conclusion that the judgment entered was erroneous, and we presume for that reason the Novak & Wolf Company did not follow the case to this court.

The judgment must be reversed.

Reversed.


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    Samuel A. Kean for use of Clarence S. Argo et al., for use of William E. Sweeney for use of Marian H. Sweeney, Defendants in Error, v. Anna R. Kean, Impleaded with The First National Bank of Chicago, Plaintiff in Error.
    Gen. No. 17,335.
    1. Husband and wife — right of wife to pay husband’s debts. A wife may use her money deposited in a bank to pay her husband’s debts and for this purpose may permit him to sign checks for her.
    2. Garnishment — of wife’s money by husband’s creditor. Where the legal title to money on deposit in a hank is in a wife it cannot he garnisheed by a judgment creditor of her husband.
    Error to the Municipal Court of Chicago'; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and judgment here.
    Opinion originally filed October 1, 1912.
    Rehearing denied and opinion modified and refiled November 12, 1912.
    A. M. McConoughey, for plaintiff in error.
    Robert C. Fergus, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Garnishment suit was brought by the defendants in error against the First National Bank of Chicago, as garnishee. The affidavit upon which the writ was issued alleged that the First National Bank of Chicago was indebted to Samuel A. Kean, “Samuel A. Kean doing business in the name of Anna R. Kean, Annie Kean, A. R. Kean.” The answer alleges that the garnishee was indebted to Anna R. Kean upon a checking account in the sum of $245.61; that so far as the garnishee was informed apd knew, the property was the absolute property of said Anna R. Kean, and that Samuel A. Kean had no interest whatsoever in said fund. From answers to-interrogatories it appears that checks were made against the account of Samuel A. Kean, acting as attorney in fact for Anna R. Kean, who was his wife. Anna R. Kean intervened in the suit under the statute. There was a hearing before the court without a jury. The court found the issues as to the claims to the funds in the hands of the garnishee in favor of the plaintiff, entered judgment on the finding as to the claim of Mrs. Kean, as intervenor to the funds in the hands of the garnishee “that the right therein was in the plaintiff.” Judgment was thereupon entered against the garnishee upon its answer.

It was claimed in behalf of Mrs. Kean upon the trial that the fund in the hands of the bank at the time the garnishment process was served arose out of the sale of certain soldiers’ additional homestead scrip belonging to her, covering' 200 acres of land. A sale of this scrip was effected by her attorney, if his testimony is to be believed, for $3,000, and of this amount $1,250 was deposited in the bank to her account. It would appear that when the scrip was sold a draft was made by the firm of S. A. Kean & Co. and the assignment of the scrip attached to the same. It was testified to by the attorney, and we find no denial of it in the record, that this was by mistake. The proceeds of the draft were credited to the account of S. A. Kean & Co. at the National City Bank of Chicago. Thereafter two checks were made by S. A. Kean & Co., one to the First National Bank for $500, and another to Anna R. Kean for the sum of $750. Both of these checks were deposited and credited to her account in the First National Bank. It appeared that most of the money so deposited was checked out in payment of sundry accounts owing by S. A. Kean or S. A. Kean & Co., the checks being signed by Mr. Kean under his power of attorney. The trial court evidently concluded from this state of facts that the deposit, although in the name of Anna R. Kean, in fact belonged to S. A. Kean. We are unable to agree with it in this respect. If tbe deposit in tbe bank of tbe garnisbee actually belonged to Mrs. Kean, as we tbink tbe proof indisputably shows, sbe would bave a perfect right to use tbe same in paying her husband’s debts. It would also be proper for her, if sbe so chose, to allow him, for this purpose, to sign tbe checks for her. In any event, tbe legal title to tbe credit was in her and not her husband, and could not be reached by garnishment. May v. Baker, 15 Ill. 89; Illinois Central R. R. v. Weaver, 54 Ill. 319; Webster v. Steele, 75 Ill. 544. Kean in his own name could not bave prosecuted successfully a suit against tbe bank, and therefore one of bis judgment creditors could not maintain garnishment proceedings under tbe authorities.

We tbink tbe court should bave found in favor of Anna R. Kean, as intervenor, and that a judgment should bave been entered discharging tbe garnisbee upon its answer. Such finding will be made in this court and judgment entered here.

Judgment reversed and judgment here.


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    Margery Burdock, Defendant in Error, v. Chicago Hotel Company, Plaintiff in Error.
    Gen. No. 17,358.
    1. Innkeepers — relation to guests. Where a person engaged a room at a hotel of from five hundred to six hundred rooms, of •which all hut a few were occupied hy transients, for an indefinite period, obtained a rate without meals, was given a key in the regular way, which she left with the clerk whenever she left the hotel, the relation of innkeeper was assumed hy the hotel rather than that of a lodging house keeper.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.

      John C. Everett, for plaintiff in error.
    Frederick A. Brown, William R. T. Ewen, Jr., and John C. De Wolfe, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error, hereinafter called the plaintiff, against the Chicago Hotel Company, plaintiff in error, hereinafter called the defendant, seeking to recover the value of certain personal property claimed to have been lost by the plaintiff while a guest of the Palmer House, owned and operated by the defendant company. There was a trial before the court and a jury, a verdict being rendered for the sum of $115, upon which judgment was entered.

The plaintiff registered at the hotel in September, 1908, and was given a room at $1.50 per day. A week later she was moved to another room, for which she paid nine dollars per week, until she left in the following June.

The principal question before us is whether the defendant assumed the obligation of an innkeeper or that of a lodging house keeper. The court charged the jury that it was a question of fact for them to determine whether the relationship between the plaintiff and the defendant was that of a transient, guest at a hotel or whether it was that of a boarder or lodger at a boarding house or a lodging house. Defendant asked an instruction to the effect that the relationship between them was that of a lodger and lodging house keeper, and that the defendant was under no duty to care in any way for the safety of the goods or property of the plaintiff, which instruction was refused.

The only evidence in the record as to the contract • made is that of the plaintiff. She testifies that while she paid by the week after being transferred- to the second room, nothing was at any time said as to the length of time which she would occupy the same. She further testified that her home was in Iowa, and that although she was in Chicago a large part of the time her business required her to travel more or less; that she was employed by two life insurance companies, being assistant treasurer of one of them. She was given a key to the room in the usual way, and whenever she left the hotel left the key with the clerk. The Palmer House has between five and six hundred rooms, nearly all of which are used by transient guests, a few being occupied by people who might not be considered as “transient.”

The contract made between the parties would seem to be no different than that made ordinarily by an innkeeper with a guest, unless it be found in the fact that the rate was made by the week instead of by the day. We think the plaintiff would be entitled to expect that her treatment would be exactly the same as that of any transients at the hotel. The rate was given for the room alone, and did not include meals. We think the court would have been justified in charging the jury to this effect, instead of leaving it to them-to determine whát the contract was as a question of fact. Clearly the defendant would be entitled by rules and regulations to claim the benefit of the act for the protection of innkeepers, and doubtless does so. The following cases are iñ point: Bullock v. Adair, 63 Ill. App. 30; Moon v. Yarian, 147 Ill. App. 383, and Hancock v. Rand, 94 N. Y. 1.

Complaint is made that the value of the articles in question was not sufficiently established. We think, however, that a prima facie case was made by the plaintiff, and find nothing in the record which would warrant a reduction in the amount of the. judgment.

Affirmed.


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    John E. Baumrucker, Appellee, v. Fred D. Jones et al., Appellants.
    Gen. No. 17,404.
    1. Appeal and error — reservation of grounds. No question is presented for review on an appeal from the finding of a court without a jury where the appellant did not submit propositions of law to be held by the court in accordance with Practice Act, § 61 (former act, § 42).
    2. Corporations — right of stockholder to inspect hooks. Under statutes conferring on a stockholder an unlimited right to inspect the books and' papers of a corporation, it is no ground for a refusal to permit an inspection that the stockholder is influenced by improper motives or purposes in desiring to .procure the information. ¿
    3. Corporations — right of stockholder to inspect hooks. A stockholder is not precluded from having an inspection of corporate books and records by the fact that he had negotiated with an officer of thd corporation for the sale of his shares and that such officer had instituted proceedings in chancery for the specific performance of an alleged contract of sale.
    Appeal from the Superior Court of Cook county; the Hon. William N. McSurelv, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    J. N. Heldman and Simon La Grou, for appellants.
    McEwen, Weissenback, Shrimski & Meloan, for appellee; James S. McClellan, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

A writ of mandamus was awarded appellee, as petitioner, against appellants, as respondents, commanding that the petitioner he permitted to examine the records and hooks of the Fred D. Jones Co., a corporation. There was a trial before the court without a jury. The appellant did not submit propositions of law to be held by the court, in accordance with Section 61 of the Practice Act (Section 42 of the former act). It has uniformly been, held that where-such propositions are not submitted ho question of law is presented to the court on appeal for review, the ultimate facts found by the court from the evidence not having been set forth in the bill of exceptions. Hobbs v. Ferguson’s Estate, 100 Ill. 232. The statute of this state gives an unlimited right to stockholders to inspect the books and papers of the corporation. It is no defense that he is influenced by improper motives or purposes to procure the information. Venner v. Chicago City Ry. Co., 246 Ill. 173. The record shows conclusively that title to 100 shares of stock was in Baumrucker at the time of filing his petition. It is true there- is some evidence tending to show that negotiations had been had between bim and Mr. Jones, an officer of the defendant corporation, under which Jones was to acquire the stock, and that Jones had instituted proceedings in chancery seeking the specific performance of the alleged contract. These facts, however, present no defense to the petition for mandamus.

Affirmed.


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    Catherine Rickerman, Appellee, v. German Mutual Life Insurance Company, Appellant.
    Gen. No. 18,604.
    1. Injunction — effect of „amending petition after granting writ. Au order sustaining a demurrer to a bill for an injunction and permitting an amendment after tbe granting of the writ and th6 making of an amendment pursuant thereto will not prejudge the injunction though the order be silent as to its effect thereon.
    2. Injunction — necessity of verifying amendments to Mil. Amendments to a bill for an injunction made after the granting of the writ need not be verified where the injunction was granted on a verified original bill, no further relief by way of injunction is prayed therein, and the injunction does not require for its support the additional matter brought out by the amendments.
    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 October 1, 1912.
    George J. Kuebler, Archibald A. McKinley and L. A. Stebbins, for appellant.
    Robert A. Meier, Jr., for appellee; Clark Varnum, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is an appeal from an interlocutory order overruling a motion to dissolve an injunction. On November 22, 1910, a bill was filed by the appellee praying for the appointment of a receiver of the appellant, the German Mutual Life Insurance Company, for an accounting, and other relief. An injunction was issued on the following day, restraining the insurance company, its former and present officers, agents, and other persons claiming to act for it, from destroying, cancelling, removing, mutilating and taking outside of the County of Cook any of the books, papers or records of the respondent until the further order of the court. On June 9, 1911, an amendment to the bill was filed. On December 6th, following, an order was entered sustaining a demurrer to the bill as amended, and giving the complainant time in which to further amend the same. A second amendment was filed December 11, 1911. On January 13, 1912, a demurrer to the bill as amended was filed, which demurrer was, on February 23rd following, overruled. On March 15, 1912, the answer of the German Mutual Life Insurance Company was filed. The record shows that oh March 25th following the court overruled a motion to dissolve the injunction issued on November 23, 1910. It is from this order that the appeal is taken.

Exhaustive briefs have been filed by the parties upon the proposition advanced by the appellant, that the facts set forth in the bill constitute no ground for relief of any kind,, and that therefore the injunctional order was improperly, issued, and on motion should have been set aside. The evident purpose of the appeal is to obtain from this court a ruling upon the substantial merits of the cause, as presented by the amended bill and answer.

We do not feel called upon at this time to enter into an investigation and discussion of the merits of the controversy. The effect of the injunctional order entered was merely to preserve evidence. It in no way interfered with the business or transactions of the insurance company, and entailed no hardship. This is made apparent by the fact that from the date the order was entered, namely, November 23, 1910, no attempt was made to have it set aside until March, 1912. The appellant did not see fit to stand by its demurrer, but filed an answer. It is urged that the order sustaining the demurrer to the bill after the first amendment had been filed, of itself dissolved the injunction. Whatever may formerly have been the rule, the prevailing doctrine is that whenever, pending an injunction, an amendment is allowed to the bill, it is without prejudice to the injunction, which still stands, although the order granting leave to amend is silent as to its effect upon the injunction. So a complainant may amend even after demurrer filed, and the amendment will not prejudice the injunction. High on Injunctions, section 1594; Selden v. Vermilya, 4 Sandf. Ch. 573; Warburton v. London & B. R. Co., 2 Beav. 253.

The amendments to the bill were not sworn to, but it has been held that where an injunction has been granted ilpon a verified original bill and an amendment to the bill is afterwards filed, such amendment need not be sworn to where no relief by way of injunction is prayed in the amendment and the injunction does not require for its support the additional matter brought out by the amendment. High on Injunctions, section 1598-a; Bauer Grocer Co. v. Zelle, 172 Ill. 407.

Ample time has elapsed since the filing of the hill for a. determination of the case upon the merits in the Circuit Court. As heretofore stated, no hardship is placed upon the appellant by the injunctional order. A great injustice might he done if the appellant were allowed to destroy its hooks and papers or to remove them from the state.

The order appealed from is affirmed.

Affirmed.


author: Mr. Justice Barnes

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    Leokadya Szczukowski, minor, by Arthur Donoghue, Guardian, Appellee, v. Macierz Polska, of the United States of North America, Appellant.
    Gen. No. 17,009.
    1. Appeal and error — questions reviewable on record. Where a cause was tried without a jury and without submission of propositions to be held as law, the only questions which may be reviewed are the sufficiency of the evidence to sustain the court’s finding and its ruling on the admissibility of certain written evidence.
    2. Beneficial associations — evidence of contents of constitution and by-laws. In an action for a death benefit by an heir of a deceased member of a benefit society whose constitution and bylaws were printed in Polish, evidence held to show that the constitution and by-laws designated “heirs” rather than “beneficiaries” as the class of persons entitled to death benefits.

      3. Beneficial associations — determination of beneficiary. The constitution and by-laws of a beneficial society, rather than the statute under which it was organized, determine who shall be entitled to death benefits accruing on the death of a member: so that where the constitution and by-laws of such an order provided that the death benefits shouid go to the “heir” of a member, such member could not designate others than his heirs as beneficiaries.
    4. Appeal and error — harmless error. Though in an action against a beneficial society for a death benefit the exclusion of a document purporting to be-the deceased’s designation of his beneficiaries, which was a part of the agreed statement of facts, was therefore improper, it was harmless where such designation furnished no protection to the defendant from liability to the plaintiff.
    Appeal from the County Court of Cook county; the Hon. W. A. Wall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 1, 1912.
    N. L. Piotrowski, for appellant.
    Bernard J. Mahoney, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The declaration in this case was predicated on the claim that the plaintiff, as the only heir of a deceased member of the defendant’s society, was, under its rules and regulations, entitled to a death benefit of $350, payable on such member’s decease. The defendant admitted that it was bound to pay the amount to some one, but claimed that it should pay in accordance with a designation of beneficiaries made by the deceased some months before his death, which directed the payment of $100 to his infant heir aforesaid, $200 to his father and mother and $50 for church masses. In view of such admission judgment was rendered for $100, and as to the rest of the fund the case was tried before the court, without a jury, and without submission of propositions to be held as law. Upon the record as presented the only questions saved for review relate to the sufficiency of the evidence upon which the court based its findings for plaintiff, and its ruling in excluding from the evidence the written designation aforesaid.

The constitution and by-laws of the society were printed in the Polish language, and the only material fact in dispute was the meaning of the word employed therein to designate the class of persons entitled to death benefits, plaintiff contending it meant “heirs” and defendant that it meant “beneficiaries.” All other facts material to the issue were agreed upon. Upon the point in dispute there was a clear preponderance of evidence in favor of plaintiff’s contention. Witnesses familiar with the Polish language, and the different shades of meaning given to the word in controversy, agreed in the main that its proper meaning and translation is “heirs at law.” As plaintiff was the only heir she was entitled to the entire fund under the society’s constitution and by-laws, which narrowed the scope of its beneficial action to heirs alone, and to which, in determining who can take as beneficiaries, we must look rather than to the statute under which the society was organized. Murphy v. Nowak, 223 Ill. 301. It was therefore beyond the power of the deceased member to designate others than his heirs as beneficiaries. Knights of Honor v. Menkhausen, 209 Ill. 277.

While the motion made at the close of the evidence to exclude such designation from the evidence should not have been granted, as the document was a part of the agreed state of facts upon which the case was submitted to the court, and was the wrong method of obtaining the court’s view of the law as to who was entitled to the fund, yet, as the designation furnished no protection against appellant’s liability the ruling was harmless.

While the court’s finding-, for the plaintiff was reached by different reasoning, it was correct and the judgment will be affirmed.

Affirmed.