text:
    Max Stricker, Defendant in Error, v. William M. Umbdenstock, Plaintiff in Error.
    Gen. No. 22,294.
    Contracts, § 32

      —when element of meeting of minds lacking. Where the owner of goods in a warehouse directed an insurance solicitor to telephone an order to defendant insurance agent to place insurance on such goods and the solicitor so telephoned, but defendant understood the message to be to insure goods of the owner in another warehouse and so wrote the policy, there was no meeting of the minds of the parties giving rise to a contractual relation between them so as to render defendant liable upon the loss by fire of the goods sought to be insured.
    Error to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and judgment here.
    Opinion filed June 26, 1916.
    Furber & Wakelee, for plaintiff in, error.
    Adler, Lederer & Beck, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, alleging loss resulting from the negligent execution of an order for fire insurance given by him to defendant, an agent of the insurance company, upon trial had judgment for eight hundred dollars, which we are asked to reverse.

Desiring to place fire insurance on a lot of whisky owned by him in a United States warehouse, designated as warehouse “A,” plaintiff called at the office of Charles Kressman, an insurance solicitor, who undertook to telephone this order to the defendant. Plaintiff testified that he heard Kressman telephone the order as he gave it to Kressman, that is, for insurance on whisky in warehouse “A,” Kressman, testifying, does not recall what was said by him over the telephone, but says he gave the order as plaintiff gave it to him. Defendant, testifying, says that as he heard the telephone message at the. other end of the wire it was for insurance on whisky in warehouse “D”; that he so noted it at the time on a written memorandum or order blank, which is in evidence. The policy was written on the goods of plaintiff in warehouse “D” and delivered to Kressman, who delivered it to a clerk of plaintiff’s1 who left it with a bank as part of the collateral for a loan. Plaintiff never examined the policy. Subsequently there was a loss by fire in warehouse “A,” and plaintiff then discovered that the policy did not cover his goods in “A” but covered his goods in warehouse “D.”

Under such circumstances plaintiff cannot recover damages from defendant, for the reason that there was no contractual relation between the parties—their minds never met. Plaintiff’s mind was in warehouse “A,” defendant’s in warehouse “D.” There being no mutual obligations, defendant owed plaintiff no duty, either to write a policy on the goods in warehouse “A” or anywhere else.

Plaintiff’s claim and argument proceed upon the fundamental fallacy that defendant was obligated to hear the message through the receiver of his telephone instrument exactly as it was spoken into the telephone instrument at Kressman’s end of the wire. Such a legal obligation on telephone users could hardly be viewed with equanimity, in the light of the general experience of all of us with telephones.

Plaintiff having given the order in one way and defendant having received it in a different way, defendant was guilty of no negligence in executing the order as he received it. The judgment is reversed and judgment of nil capiat is entered in this court.

Judgment reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    C. S. Warnock, Appellee, v. William J. Fleming, Appellant.
    Gen. No. 22,296.
    1. Evidence, § 134

      —when proof of loss of instrument in suit sufficient to admit sepondary evidence. In an action on a bank check, evidence of the loss of the check examined and held sufficient to render secondary evidence competent.
    . 2. Bills and notes, § 472*—what measure of recovery in action on check payable in foreign or depreciated currency. WThen an action is brought on a check payable in a foreign or depreciated currency, the measure of damages is the value of such foreign or depreciated currency at the time the check should have been paid, with interest to the time of judgment.
    3. Appeal and error, § 1471*—when admission of parol evidence harmless. Where the judgment would be proper without parol evidence as to the transaction, the admission of such evidence to explain the instrument on which the action is brought is harmless.
    4. Evidence, § 327*—when parol evidence admissible to show character of transaction. In an action on a check, where the check does not purport to express the entire contract or agreement between the parties, parol evidence is ádmissible to show the character of the transaction and intention of the parties.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 26, 1916.
    Rehearing denied July 7, 1916.

      Patttsqn & Shaw, for appellant; Douglas C. Gregg, of counsel.
    Ft,a, Grover & March, for appellee; Mortimer C. Grover, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit on a bank check drawn by defendant to the order of and delivered to plaintiff. Upon trial plaintiff offered proof of the loss of the original check, with secondary evidence thereof. He had judgment for $6,658.75. Defendant, appealing, says that there was not sufficient proof upon the trial that the original check had been lost.

The check was drawn in Tampico, Mexico, and plaintiff proved that the check was given to the judge in the Court of First Instance in Tampico, Mexico; that he had never indorsed the check or transferred it to anybody by assignment or otherwise; that the check was forwarded to the governor at Victoria to have the defendant’s signature recognized; that plaintiff ■ had not seen the check since that time; that the last time he had seen it was in the Court of First Instance; that he had made a diligent effort to find it, had searched for it both at Tampico in the court records and at Victoria, and had spoken to the judge concerning it, and that he had had other parties search for it, but had been unable to find it. The defendant, testifying, identified the copy received in evidence as being a true and correct copy of the check. We think these circumstances met the requirement of proof of loss and made competent secondary evidence. Case v. Lyman, 66 Ill. 229; McMillan v. Bethold, Smith & Co., 35 Ill. 250.

The check was drawn on a firm of bankers in Tampico and called for the payment of 10,500 pesos, which is Mexican money. The judgment in our court was for an amount in money of the United States equivalent to the value of 10,500 pesos at the time the check was presented for payment. It was admitted that at the time the check was presented the value of a Mexican peso was 50 cents in United States money, while at the time of the trial its value was only 19 cents of our money, it having in the meantime depreciated for reasons which are known to all. This difference really represents the substance of the dispute between the parties, for defendant contends that judgment should be entered in United States money only in an amount based upon the value of the Mexican peso at the date of the trial. With this contention we cannot agree. In Daniel on Negotiable Instruments, vol. 2, page 1760, it is said:

“A check is a draft or order upon a bank or banking-house, purporting to be drawn upon a deposit of funds for the payment at all events of a certain sum of money, to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand.”

This definition has been approvingly referred to in many cases, including Ridgely Nat. Bank v. Patton & Hamilton, 109 Ill. 479. See list of cases in 7 Cyc. 529.

The check under consideration was presented for payment the day after it was drawn but payment was refused, as defendant had stopped its payment from motives apparently malicious but which are not material here. Under the rule above quoted the check should have been paid when presented, and the breach occurred when plaintiff presented the check and it was refused.

It is established by many decisions that when suit is brought upon a cheek or other obligation payable in a foreign or depreciated currency, the measure of damages is the value of such foreign or depreciated currency at the time such check or other obligation should have been paid, with interest to the time of judgment. Among the many cases so holding are the earlier cases in this State of Smith v. Dunlap, 12 Ill. 184; McCumber v. Gilman, 13 Ill. 543; and County of Madison v. Bartlett, 1 Ill. 67, which have never been overruled. Other decisions are Grunwald v. Freese, 34 Pac. 73 (Cal.); Butler v. Merchant (Tex. Civ. App.), 27 S. W. 193; Stewart v. Salaman, 94 U. S. 434; and Matthews v. Rucker, 41 Tex. 636. See also, long list of cases to the same effect in 30 Cyc., p. 1217 and 8 Cyc., p. 328. We are not persuaded by the argument of counsel for defendant to depart from the rule announced in these cases.

It is said that the trial court was in error in admitting parol testimony to explain the check. There are two answers: (1) The judgment would be proper without any parol testimony as to the transaction; (2) the check does not purport to express the entire contract or agreement between the parties, hence parol evidence was admissible to show the character of the transaction and intention of the parties, and such evidence was not inconsistent with the check. The rule is so stated in Daniel on Negotiable Instruments, vol. 1, p. 127; 17 Cyc. 718; and in Saffer v. Lambert, 111 Ill. App. 410; and Ebert v. Arends, 190 Ill. 221.

There appearing no convincing reason for disturbing the judgment, it is affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    Wendell S. Merrick, Plaintiff in Error, v. T. A. Rooney, Defendant in Error.
    Gen. No. 22,210.
    Contracts, § 380

      —when parol evidence admissible to show real consideration. Parol evidence is admissible to show that the earnest money actually paid upon the execution of a contract to convey realty was in a different amount than that recited in the contract.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in' this court at the March term, 1916.
    Affirmed.
    Opinion filed June 26, 1916.
    William English, for plaintiff in error.
    Austin J. Rooney, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The parties to the litigation entered into a written contract, by which defendant agreed to sell certain real estate to plaintiff. The plaintiff, after signing and delivering the contract, declined to complete the purchase. The reason for his action in so refusing is of no consequence, as neither the issues nor the proofs call it in question.

James Carroll was the agent who negotiated the transaction and procured plaintiff to execute the contract. The contract recites that plaintiff paid five hundred dollars as earnest money to he applied on the purchase price when the sale was consummated. It further provided that if the title proved defective and plaintiff did not for that reason complete the purchase, the earnest money should be returned to him. The earnest money and the contract were to be held in escrow by John A. Carroll & Brother for the mutual benefit of the parties. When Carroll presented the contract to plaintiff for execution by him he declined to pay as earnest money five hundred dollars, but was willing to pay one hundred dollars, and did pay the one hundred dollars, which Carroll accepted, but failed to change the contract in this regard. These facts are not in dispute.

Plaintiff brings this action to recover four hundred dollars as due him in virtue of the contract as unpaid earnest money, which the contract provides shall be forfeited as liquidated damages on defendant’s refusal to carry out the contract on his part. There was a trial before court and jury, which resulted in a verdict and judgment in favor of defendant, and plaintiff is here asking a reversal.

Plaintiff requested the court to instruct the jury to find a verdict in his favor for four hundred dollars, which the trial judge declined to do, but instructed the jury that if they believed from the evidence “that at the time the said contract was signed that it was agreed by and between the parties to this litigation that the sum to be paid as earnest money or liquidated damages was one hundred dollars, then and in that event the jury should find the issues for the defendant.” Under this instruction and the proofs, the jury had no alternative than to bring in a verdict for defendant.

Plaintiff’s rights are restricted to the terms of the contract. In virtue of that contract he seeks to recover the amount of the earnest money recited in the contract to have been paid to the agents. Neither in the statement of claim nor in the evidence given thereunder upon the trial is there stated or proven such facts as entitle plaintiff to recover from defendant the amount of the earnest money recited in the contract to have been paid. The fact that one hundred dollars only was paid, and that not to defendant but to the agents, defeats the action set forth in the statement of claim.

We think the conceded fact that one hundred dollars was paid as earnest money and not five hundred dollars, as recited in the contract, was susceptible of proof by parol, without violating any rule against the varying or altering of written contracts by parol proof. The actual consideration for a deed or contract for the conveyance of real estate is always open to proof by parol. The expressed consideration in the writing is not conclusive; it is in the nature of a receipt for money which may be explained by parol whenever the amount actually paid is disputed. In Spence v. Central Accident Ins. Co., 236 Ill. 444, the court say: “It has been held in many cases in this State, and is the settled law, that the recital of a given consideration may be contradicted'by parol evidence for all purposes except1 to destroy the legal effect of the instrument.” And again the court say in Koch v. Roth, 150 Ill. 212: “It is well settled, however, that the recital of a consideration in a deed or bill of sale is not conclusive upon either party; and that it may be shown by parol what the true amount of the consideration is, and how it is to be paid.” We have been cited to no cases holding to the contrary, and we know of none. Certainly Schreiber v. Straus, 147 Ill. App. 581, does not hold to the contrary of the doctrine above announced, for the question of the amount of the consideration expressed in the Schreiber contract was not involved.

The judgment of the Municipal Court is without error and is therefore affirmed.

Affirmed.


text:
    Salvatore de Salvo, Defendant in Error, v. Arthur E. Anderson, Plaintiff in Error.
    Gen. No. 22,237.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with judgment of nil. capiat.

    Opinion filed June 26, 1916.
    Statement of the Case.
    Action by Salvatore de Salvo, plaintiff, against Arthur E. Anderson, defendant, to recover earnest money paid under a contract for the purchase of real estate, to reverse a judgment of $500 for plaintiff, defendant prosecutes this writ of error. Plaintiff did not join in error or argue the cause.
    It appeared from the evidence that defendant and plaintiff entered into a contract for the sale by defendant to plaintiff of certain real estate. The consideration recited in the contract to be paid by plaintiff was $7,250. The contract also recited that $500 was paid as earnest money, and that on the passing of the conveyance and closing of the transaction the remaining sum due on the purchase price was to be liquidated by the payment by plaintiff to defendant of $1,000 in money and the giving of a first mortgage for $4,000 and a second mortgage for $1,750, secured upon the premises sold. The contract and earnest money were to be held by Navigate Savings Bank in escrow for the benefit of both parties to the contract. James B. Navigate, of the bank bearing his name, was the agent who negotiated the sale and procured the contract to be signed by the parties to it.
    Plaintiff refused to carry out the contract and demanded the return of the earnest money on the contention that he had been induced to sign the contract to purchase the property by false and fraudulent representations made to him by James B. Navigate and the defendant. The representations alleged to have been false concerned taxes for the year 1913, which plaintiff claimed should have been prorated from January 1, 1913, to the date of the closing of the transaction, and which would amount to about $80 in favor of plaintiff; and the further representation that there would be no extra charge for a mortgage of $5,750, whereas, it was claimed, an expense in this regard amounting to $150 was to be paid.
    It seemed that plaintiff was by birth an Italian and had at the time of the transaction lived in this country ten years. He claimed that he did not understand the English language. Navigate, who procured plaintiff’s signature to the contract, spoke the Italian language, and it was in evidence that at the time the contract was signed the parties present spoke in Italian and not in English. Plaintiff paid the earnest money to Navigato and not to defendant, and he paid it at the instance of Navigato at the time-he signed the contract.
    Defendant did not speak Italian at the signing of the contract and it did not appear that he could speak that language. It was not claimed that defendant made any representation to plaintiff which induced him to sign the contract nor any statement in relation to it or its terms contrary to such terms. Nor did it appear that plaintiff interrogated defendant regarding the terms of the contract.
    John E. Anderson and George Cohen, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Vendor and purchaser, § 355 —when evidence insufficient to show false representations in procuring execution of contract. In an action to recover earnest money paid under a contract for the purchase of real estate, evidence examined and held insufficient to show that the execution of the contract was procured by false and fraudulent representations.

2. Vendor and purchaser, § 38*—what insufficient to constitute fraudulent representations. In an action to recover earnest money paid under a contract for the purchase of real estate, representations as to the taxes on the property and as to the expense of the purchase money mortgages to be placed thereon, held to be rather in the nature of promises to be carried out in the future than representations of existent facts and therefore not to constitute fraud, though the contract was entered into in reliance upon such representations.

3. Fraud, § 112*—what essential to establish. A mere allegation of fraud is insufficient, but it must be proven, and the acts or things done which in law constitute fraud must be proven by a preponderance of the evidence.,

4. Fraud, § 87*—when not presumed. Fraud is never presumed, and when transactions may be fairly reconciled with honesty and the weight of the evidence favors an honest motive, the conclusion of integrity should be adopted.


text:
    John H. Lawrence and Edward F. Lawrence, trading as Lawrence Brothers, Appellants, v. William Wendnagel and Charles M. E. Wendnagel, trading as Wendnagel & Company, Appellees.
    Gen. No. 22,271.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wiluam N. Gbmmill, Judge, presiding. Heard in this court at the • March term, 1916.
    Affirmed.
    Opinion filed June 26, 1916.
    Statement of the Case.
    Action in debt by John H. Lawrence and Edward F. Lawrence, trading as Lawrence Brothers, plaintiffs, against William Wendnagel and Charles M. E. Wendnagel, trading as Wendnagel & Company, defendants, to recover on an indemnity bond. From a judgment of nil capiat and for costs in a trial before the Municipal Court without the intervention of a jury, plaintiffs appeal.
    The facts involved were that defendants had a contract with plaintiffs for certain structural steel work, under which plaintiffs were authorized to retain out of any moneys due defendants at any time sufficient to indemnify plaintiffs against any claim or lien for which they or their property might be liable. On November 24, 1911, one David O’Keefe threatened a suit at law against plaintiffs for personal injuries claimed to have been suffered in and about the erection by defendants of the structural steel work for plaintiffs. Plaintiffs claimed the right to retain about $4,000 due defendants to await the result of O’Keefe’s threatened suit. Defendants not only denied liability, but also the right of plaintiffs to’ retain the money then due them. This controversy was settled by defendants giving to plaintiffs a bond of indemnity in the penalty of $4,000, conditioned that defendants should hold plaintiffs harmless from and against all liability for personal injuries sustained by any and all persons as the result of the carelessness or negligence of defendants, their agents or employees, in and about the performance by defendants of their contract with plaintiffs, agreeing to pay plaintiffs “all damages resulting or arising from such negligence, which may hereafter be assessed against them in any action brought by any such person or persons, then this obligation to be void,” etc. O’Keefe sued plaintiffs for damages for the personal injury which he claimed he suffered, and plaintiffs defended the suit successfully and brought this suit in debt, upon the indemnity bond hereinbefore referred to, to recover from defendants, attorney’s fees, witness fees, and other expenses paid by plaintiffs in their defense of the O’Keefe suit, with interest upon all of such disbursements. The attorney of defendants assisted in the defense of the O’Keefe suit by advising plaintiffs’ attorneys regarding the pleadings and, at one time, as to the advisability of procuring a continuance, also as to the advisability of employing additional counsel to help in the trial of the case and the propriety of procuring medical testimony on the theory that O’Keefe was malingering. Defendants’ attorney was also present at the trial, although he took no active part in it. It also appeared that in a motion to instruct a verdict for plaintiffs in the present suit (defendants in the O’Keefe suit), the name of defendants’ attorney was coupled with those of plaintiffs’ attorneys.
    Burton, Kannally & Megan, for appellants.
    Edmund W. Froehlich, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Indemnity—when terms of original contract waived by acceptance of indemnity. Where a contract for construction authorizes persons letting it to retain out of any moneys due the contractors a sufficient amount to indemnify the former against any claim or lien for which they or their property may be liable, and on a threat by an employee of suit for personal injuries the contractors give to those letting the contract an indemnity bond to hold the latter free from liability, held that the contract between the parties and the bond of indemnity constitute different transactions, the contract being satisfied upon the payment and acceptance of the amount due thereunder, and the terms of the contract provided for the retention of money being waived by the acceptance of the indemnity bond.

2. Indemnity, § 9 —how indemnity bond construed. Nothing can be read into an indemnity bond which does not .actually appear in it or which is not warranted by legal interpretation of the language used to express the intention of the parties, which intention must be gathered from such language.

3. Indemnity, § 9*—when indemnity bond not construed as cov-' ering liability for attorneys’ fees and expenses. Where the covenant of an indemnity bond is limited to “all damages resulting or arising from such negligence which may hereafter be assessed against them in any action brought by any such person or persons,” and in the suit in which the bond is given no damages are recovered, the terms of the bond cannot be construed to hold defendant in the action liable for the attorneys’ fees and the expenses attendant upon the suit.


text:
    The People of the State of Illinois ex rel. William M. Webster, Appellant, v. City of Chicago, et al., Appellees.
    Gen. No. 22,518.
    1. Municipal corporations—when duty of removing ashes not imposed upon the city. The duty of removing ashes is not primarily the duty of the city, but of the property owner, upon whom is imposed the expense of such removal irrespective of ordinance.
    2. Municipal corporations—when city authorized to regulate removal of ashes. A municipal corporation acts within its powers in legislating upon the subject of the removal of ashes.
    3. Municipal corporations—what is extent of duty of city as to removal of ashes. When a municipal corporation undertakes the burden of removing ashes from certain classes of buildings, its duty in this regard is limited by the restrictions of the ordinance to the class of buildings designated by the ordinance.
    4. Municipal corporations, § 1192

      —what is limit of levy of tax for removal of ashes. When a city levies a tax on real property for the removal of ashes, it must be assumed that it limits the amount of the levy to the cost of removing ashes from the buildings specified in the ordinance and no others.
    5. Municipal corporations—when city not liable for cost of removal of ashes. The primary duty of the removal of ashes being upon the property owner and not the city, by levying and collecting a tax sufficient only to pay for the removal of such ashes as the city has by its ordinance assumed to remove at the expense of the taxpayers, the city does not thereby become chargeable with the duty of removing ashes from all buildings without limitation or discrimination.
    6. Municipal corporations—when city not liable for cost of removing ashes. Held, following 272 Ill. 451, that by levying and collecting the tax in question, the city did not become liable for the cost of removing ashes from all residence property therein.
    Appeal from the Circuit Court of Cook county; the Hon. John H. Fornoff, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed June 26, 1916.
    Rehearing denied July 1, 1916.

      Thomas S. McClelland, for appellant.
    Richard S. Folsom, for appellees; Leon Hornstein, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This appeal comes to this court by transfer from the Supreme Court of the State, which held that it was without jurisdiction for the reason that the validity of the ordinances challenged was not necessary to the decision of the case. All of the facts and the rulings of the Supreme Court thereon appear in 272 Ill. 451, in an opinion by Mr. Chief Justice Farmer. It would be a work of supererogation, which neither theology nor law tolerates, to again state the case, which might be imperfectly done, and therefore we are content to simply refer to the Supreme Court’s opinion for all that is there so well stated and decided.

As we understand the opinion of the Supreme Court, it is left to this court to decide “whether the City of Chicago has by its acts in levying and collecting a tax to remove ashes and in expending such tax in removing them from some premises but not from all, imposed upon it the legal duty and obligation to remove ashes from all residence property in the city.”

In considering the question it must be borne in mind that the duty of removing ashes is not primarily the duty of the city, but of the property owner, and that the expense of such removal is imposed by law upon the property owner without regard to the ordinance. The city having the right to legislate upon the subject of the removal of ashes, when it undertook by ordinance to regulate such removal, was acting squarely within its powers. Not being compelled by law to remove any ashes, when it undertook the burden of removing ashes from certain classes or types of buildings, its duty in this regard was limited by the restrictions of the ordinance to the class of buildings designated by such ordinance.

The relator’s type of building is, admittedly, not within the class of buildings from which the city assumed the duty of removing ashes. When the city levied a tax on real property for the removal of ashes, it must be assumed that it limited the amount of the levy to the cost of removing ashes from the buildings specified in the ordinance and no others, and in view of the decision of the Supreme Court in this case, supra, and California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, cited as sustaining authority that the primary duty rested upon the owner and not the city to remove ashes at such owner’s expense, we are unable to say that by the levying and collecting of a tax sufficient only to pay for the removal of such ashes as the city had by its ordinance assumed to remove at the expense of the taxpayers, it thereby became chargeable with the duty of removing ashes from all buildings without limitation or discrimination.

We are of the opinion that the levying and collecting of the tax above referred to did not impose upon the city the legal duty or obligation to remove ashes from all residence property in the city; consequently that the demurrer interposed by the city to the relator’s petition for a writ of mandamus was properly sustained, and the judgment of the Circuit Court is therefore affirmed.

Affirmed.


author: Mr. Justice Goodwin

text:
    Michael J. Flynn, City Treasurer, Appellee, v. Southern Surety Company, National Surety Company and United States Fidelity & Guaranty Company, also Appellees, and William C. Niblack, Receiver, Appellant.
    Gen. No. 22,506.
    (Not to be reported in full.)
    Appeal from interlocutory order of the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 19, 1916.
    Statement of the Case.
    Bill by Michael J. Flynn, City Treasurer of the City of Chicago, complainant, against Southern Surety Company, National Surety Company, United States Fidelity & Guaranty Company and William C. Niblack, as receiver of the La Salle Street Trust & Savings Bank, defendants. From an order of the Superior Court appointing a receiver of certain securities held by the complainant, defendant Niblack appeals.
    It appeared that the complainant, as city treasurer, had on deposit with the La Salle Street Trust & Savings Bank certain funds belonging to the City of Chicago, to secure the repayment of which from time to time, the Southern Surety Company, National Surety Company, the United States Fidelity & Guaranty Company, Massachusetts Bonding & Insurance Company, Equitable Surety Company, Ulinois Surety Company, Globe Indemnity Company and the American Fidelity Company had executed certain bonds as sureties. May 9, 1914, the city demanded further security to insure the return of the city’s funds deposited with the bank, which at that time amounted to some $650,-000. In compliance with this request, the vice president of the bank turned over to the complainant bonds and other securities aggregating in value about $280,-000. June 12, 1914, the bank closed its doors. June 18, 1914, a bill was filed in the Circuit Court for the purpose of winding up the bank, and a receiver was appointed the following day. The treasurer thereupon demanded of the sureties on the bank’s bond a return of the full amount of the $650,000.
    The Southern Surety Company filed its bill against the City of Chicago, the bank, its receiver, and the other sureties on its bonds, in which it set up the giving of the bonds by the bank, its own liability as surety, and the receipt of securities by the city treasurer.
    It offered to pay the City of Chicago the maximum amount for which it was responsible, and asked that it be subrogated to the rights of the city to a proportionate part of the securities. To this bill answers were filed by the city, the receiver for the bank, and all sureties on its bonds except the American Fidelity Company, which filed a demurrer. The receiver of the bank filed his cross-bill July 17,1915, and an amended cross-bill March 22,1916, in which he prayed that Michael J. Flynn, city treasurer, might be required to deliver to him all the securities in question.
    July 28,1914, Michael J. Flynn filed an original bill in the Superior Court, in which he set up the matters already stated in regard to the deposit of funds with the bank, the taking of indemnifying bonds, the obtaining of additional securities, and the subsequent failure of the bank; also that the various surety companies set up a right to be subrogated to the city’s interest in the securities and that the bank and its receiver claimed an interest in the same. He asked that the court decree that the bank or its receiver pay whatever sum might be due him as city treasurer; that, in default, he be directed to sell the collateral, apply the proceeds on the balance of the indebtedness due the City of Chicago from the bank, and make disposition of the surplus, if any, to such parties and in such amounts as might be determined by the court. This bill made the Southern Surety Company and the other sureties on the bank’s bonds parties defendant, as well as the receiver for the bank.
    Abstract of the Decision.
    1. Receivers,' § 5

      —when appointment pendente lite proper. Where during the pendency of a suit to determine the ownership of securities in the hands of a public official, such, official’s term of office expires, the appointment of a receiver pendente lite for such securities is proper for the protection of the rights of the parties.
    Answers were duly filed, and in this suit also, the receiver filed a cross-bill containing the same allegations and prayer for relief as were set out in his cross-bill filed in the case of Southern Surety Company v. City of Chicago. March 16, 1916, Flynn, by leave of court, amended his bill by inserting a prayer for the appointment of a receiver pendente lite. To this amendment was attached the affidavit of one Keefe, first assistant treasurer, in which he stated that Flynn was no longer city treasurer, but had been succeeded by one Sergei. Thereafter, on March 22, 1916, an order was entered consolidating the two cases under the name of Michael J. Flynn, City Treasurer, v. Southern Surety Company et al. April 5, 1916, on motion of complainant Flynn and various defendant surety companies, an order was entered appointing a receiver.
    Hiram T. Gilbert, for appellant.
    E. W. Austin, J. H. Huckleberry, A. G. Moseley, Judah, Willard, Wolp & Reichmann, Moses, Rosenthal & Kennedy, Shepard, McCormick, Thomason, Kirkland & Patterson, Charles H. Burras and Fyppe, Ryner & Dale, for appellees.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Receivers, § 12 —when bond from, receiver pendente lite not necessary. Where the parties moving for the appointment of a receiver pendente lite to hold certain securities, the title to which is involved in a suit, are not seeking to take the custody from a party claiming the title or interest in the securities but the custodian is one of the moving parties, the appointment of the receiver without requiring the "moving parties to give a bond is not erroneous.

3. Receivers, § 6*—when Superior Court has constitutional jurisdiction to appoint. The Superior Court of Cook county .has constitutional jurisdiction of a controversy between the receiver of an insolvent bank and the creditors of such bank, involving the title to securities delivered by the bank’s officers to one of such creditors before the closing of the bank’s doors.

4. Appeal and error, § 408*—when question of jurisdiction arises too late. Where the controversy is one within the constitutional jurisdiction of a court, and its jurisdiction of a particular controversy is first questioned on appeal by one who answered the original bill and filed a cross-bill asking affirmative relief, such jurisdictional question comes too late.

5. Receivers, § 6*—when appointment within jurisdiction of court malting it. The fact that the proceedings for the winding up of a bank are pending in the Circuit Court does not deprive the Superior Court of jurisdiction to appoint a receiver for certain securities delivered by such bank to one of its creditors before the winding up proceedings, in a proceeding between the receiver of the bank and certain creditors to determine the title to such securities.

6. Receivers, § 6*—when appointment proper pendente lite. Even though the jurisdiction of a court to appoint a receiver pendente lite of certain property is properly questioned, it is the duty of such court to protect the subject-matter of the litigation until the jurisdictional question can he properly decided.

7. Receivers, § 5*—when appointment pendente lite proper. Where, pending a proceeding to determine title to certain securities as between the receiver of a debtor and certain creditors, the term of office of the public official holding such securities terminates, the court may, on motion of such custodian and other creditors, appoint a receiver for such securities pendente lite without determining first the title to the securities as between the parties.


author: Mr. Presiding Justice Barnes

text:
    Armin W. Brand et al., Appellants, v. John H. F. Rueter et al., Appellees.
    Gen. No. 21,322.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Bill by Armin W. Brand and others, complainants, against John H. F. Rueter and others, defendants, to foreclose a trust deed to secure his four notes dated September 1, 1892, one for $5,000 and three for $1,000 each. From a decree dismissing the amended bill for want of equity, complainants' appeal.
    It appeared that by extension the notes matured September 1, 1900. The semiannual interest of $280 was paid regularly up to September 1, 1899. On March 1, 1900, $80 was paid and credited. On February 2,1902, $8,000 was paid and applied, first, to liquidate the accrued interest on all the notes to that date, next, to the payment of the note for $5,000 and one note for $1,000, and then to the reduction of the other two notes to $635 each.
    After a request for interest in the fall of 1902, Rueter, in December or January following, gave the agent of complainant Brand, holder of the notes, a note for $50 of a third person payable to the order of and indorsed by Rueter, which was collected on February 6, 1903, and credited of that date, of which Rueter was notified. The record disclosed no agreement to accept the note as payment of any part of the debt, and no circumstances that raised a presumption that it was so taken.
    Rueter borrowed the money to improve one of the lots conveyed by the trust deed. He applied to one Blumenthal, a mortgage broker, for the loan, and agreed to pay him a commission of two and one-half per cent, and the expenses connected therewith, such as examining abstract, recording, etc. The latter submitted it to one Michael Brand, who looked over the property, accepted the security, and gave Blumenthal his check for the amount of the loan, $8,000. Blumenthal deducted therefrom $200 for his commission and paid out the balance to Bueter’s contractor on Rueter’s orders. Rueter requested Blumenthal to get an extension of time as aforesaid on the notes, which was done and for which he paid Blumenthal another commission of $200. No part of either commission was received by the lender, Brand. During the year 1892, Blumenthal made other loans for said Brand and he collected the interest on the notes in question while said Brand owned them. They became the property of complainant Armin W. Brand, in 1899, after which the payments thereon were made to the latter’s agent. Neither the lender nor subsequent owners of the notes received or agreed to receive more than the legal rate of interest thereon. The compensation paid to Blumenthal for negotiating the loan and procuring an extension of the time of payment was according to contract between him and his borrower, with which the lender had no connection and of which he had no knowledge.
    Evidence was received tending to show that Blumenthal had not taken out a license as required by the ordinances of the City of Chicago. . There was also evidence that the notes were signed September 3, 1892, and dated September 1,1892, and that the original loan was not paid over to Blumenthal until November 10, 1892, but that the interest was paid thereon from the date of the note. The record did not disclose whether the lender held the money for Rueter’s use from the date of the note. The arrangement between him and the lender in that respect was not shown. "Brand agreed to make the loan before September 1st.
    Abstract of the Decision.
    1. Payment, § 15

      —when application of payment proper. An application of payment to liquidate accrued interest on notes to the date when made, and thereafter to the payment of the principal of the notes, is proper especially in the absence of any direction by the debtor.
    2. Payment, § 6*—when note of third person a conditional payment. Where a debtor gives a note of a third person, in the absence of any agreement that such note be accepted as payment of any part of the debt and of circumstances raising a presumption that it was so taken, the giving of the note will be deemed conditional payment only, and as of the date when it is collected.
    3. Limitation of actions, § 23*—when statute commences to run in action on note. In an action on a note where the debtor gives the note of a third person in payment of the note in suit, the note of such third person being deemed conditional payment only and of the date of its collection, the running of the statute of limitations is regulated by the date of the payment of such third person’s note.
    4. Usury, § 5*—when evidence insufficient to show usury. In an action to foreclose a trust deed secured by promissory notes, evidence examined and held insufficient to show usury.
    5. Mortgages, § 503*—when evidence as to want of license inadmissible. In an action to foreclose a trust deed executed to secure promissory notes, evidence as to whether or not the intermediary securing the loan evidenced by such note was licensed in accordance with city ordinance, held irrelevant.
    6. Usury, § 53*—when burden of proof on debtor. Where in an action to foreclose a mortgage secured by notes the defense of usury is set up, the burden of proving usury is on the debtor.
    7. Usury, § 32*—when usury not a defense. In a suit to foreclose a trust deed executed to secure promissory notes where the interest, if usurious, was paid before maturity and before the transfer of the notes to the holder bringing the suit thereon, the defense of usury is not available.

      James H. Hood, for appellants.
    James A. Peterson, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

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


text:
    James J. Ryan, Appellee, v. Chicago Foundry Company, Appellant.
    Gen. No. 21,398.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation Act—when award signed by two of three arbitrators sufficient. Under section 10 of the Workmen’s Compensation Act (J. & A. T 5459), and section 1 of the act as to statutory construction (J. & A. f 11102), an award of the arbitrators which is signed by only two of the three arbitrators appointed under the Workmen’s Compensation Act is valid.

      Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March .term, 1915.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Assumpsit by James J. Ryan, plaintiff, against Chicago Foundry Company, a corporation, defendant, based upon an award made for plaintiff against defendant under the Workman’s Compensation Act of 1911 (J. & A. ti 5449 et seq.), which was signed by only two of the three arbitrators appointed thereunder. From a judgment for plaintiff, defendant appeals.
    Eastman & White, for appellant.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Courts, § 100 —when County Court has jurisdiction of assumpsit on award. The County Court has jurisdiction of a suit in assumpsit based on an award for less than $1,000.

3. Assumpsit, action of, § 6 —when proper remedy on an award. Assumpsit is a proper remedy on an award.

4. Workmen’s Compensation Act—when evidence as to liability of employer properly excluded in assumpsit on award. In a suit in assumpsit based on an award made under the Workmen’s Compensation Act (J. & A. 1[ 5449 et seq.), evidence bearing on the question of defendant’s liability under such act is properly excluded as irrelevant.


text:
    The People of the State of Illinois, Defendant in Error, v. Abraham Glick, Plaintiff in Error.
    Gen. No. 21,598.
    (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Abraham Glick, defendant, on an indictment for larceny and receiving stolen property, the • value of which exceeded fifteen dollars. Defendant pleaded not guilty and the case proceeded to trial. There appearing to be a variance, the State’s Attorney asked for a continuance and the defendant for his discharge. The court suggested a plea to a misdemeanor if the defendant was “willing to take a chance to take a year in the House of Correction.” At the conclusion of some discussion between the judge and the counsel, the attorney for defendant remarked: “I think the best thing, your Honor, will be to withdraw the jury.” Thereupon without further remarks the court said: “On motion of the defendant, the jury withdrawn and the defendant’s plea of not guilty withdrawn and the defendant’s plea of guilty entered, and the defendant warned and sentenced to the House of Correction for one year and fined one hundred dollars and costs.”
    Abstract of the Decision.
    1. Criminal law—when explanation of consequence of plea of guilty insufficient. On an indictment for larceny and receiving stolen property, the explanation by the court of the consequence of a plea of guilty, held not a sufficient compliance with section 4, div. 13, of the Criminal Code (J. & A. 1f 4121).
    2. Criminal law, § 102

      —when entry of plea of guilty improper. On an indictment for larceny and receiving stolen property, a plea of guilty is improperly entered where no explanation was made by the court of the consequences of the plea and no witness was examined as to the aggravation or mitigation of the offense.
    3. Criminal law, § 462*—when record will not prevail against hill of exceptions. On a writ of error to reverse a judgment on an indictment for larceny and receiving stolen property, the record as made by the clerk will not prevail against what is shown in opposition to it in the bill of exceptions, even though the record shows a compliance with the statute.
    B. M. Shaffner and Erbstein & Macaulay, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Old Rose Distilling Company, Defendant in Error, v. Elizabeth Parkhill, Plaintiff in Error.
    Gen. No. 21,257.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Forcible entry and detainer by Old Rose Distilling Company, a corporation, plaintiff, against Elizabeth Parkhill, defendant, for the possession of certain premises, plaintiff’s right of possession being based upon a lease entered into with one McGivern, the owner thereof. The court having found the issues for the plaintiff, and having entered judgment thereon, defendant prosecutes this writ of error.
    This suit was the aftermath of a similar proceeding for the possession of the same premises, brought by the said McGivern against the defendant, wherein the court also found against the defendant, which judgment was later affirmed by this court upon a writ of error. McGivern v. Parkhill, 195 Ill. App. 343.
    It was urged that during the pendency of the writ of error in McGivern v. Parkhill, supra, the present action should have been abated.
    John M. Grimes, for plaintiff in error.
    Charles W. Stiefel, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error—when question of abatement of action raised too late. The objection that an action involving the possession of premises should have been abated during the pendency of a writ of error in a similar proceeding for the possession of the same premises, brought by another plaintiff against the defendant, is raised too late when first raised on appeal.

2. Abatement and revival, § 39 —when pendency of writ of error not available to abate similar action. The pendency of a writ of error cannot be invoked to abate another similar action unless the former operates as á supersedeas.

3. Partees, § 31*—when substitution does not constitute new cause of action. Where a wife is made a joint defendant to an action of forcible entry and detainer originally brought against a husband, and thereafter the action is dismissed as to the husband and the case proceeds against the wife alone, such substitution of parties does not constitute a new cause of action.


author: Mr. Justice McDonald,

text:
    Mary Hoeft, Defendant in Error, v. John Hoeft, Plaintiff in Error.
    Gen. No. 21,361.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Bill for divorce by Mary Hoeft, complainant, against John Hoeft, defendant.
    On July 15,1911, complainant was granted a default decree of divorce on the ground of desertion. On the day the said decree was entered, defendant presented a motion to set aside the decree and for leave to file his answer, which said motion was entered of record and continued. On March 4,1912, defendant presented his sworn answer to the bill and an affidavit in support of said motion. The court overruled said motion, and to review this action of the court, this writ of error has been prosecuted.
    It was contended by defendant that the court, in overruling said motion, abused its discretion, defendant claiming that his affidavit- and sworn answer set forth a meritorious defense to complainant’s bill.
    The answer filed by defendant denied the wilful desertion and its continuance without reasonable cause, as set forth in the bill. Said answer admitted that defendant had been living separate and apart from the complainant from the date of desertion alleged in the bill (November 4, 1907) to March 4, 1912, the date the affidavit and answer were presented and the motion denied. Defendant, in his answer, contended that his absence was justified because complainant had caused his arrest on a charge of disorderly conduct; that when that suit was nolle prossed, the justice of the peace before whom it was pending warned him that complainant wanted him to stay away from her. Defendant’s answer further alleged that prior to the desertion in question, complainant’s adult sons had threatened to take his life if he did not leave the home of complainant, after which he did leave and stayed away for some time, believing that said threats would be carried out; that complainant knew of said threats, and consequently had her two sons arrested; that following his arrest of November 4, 1907, he feared a renewal of hostilities on the part of complainant’s said adult sons; that because of the fear of these sons and the warning of the court, he stayed away.

      Abstract of the Decision.
    1. Divorce, § 10

      —when sufficient ground not shown for desertion. The fact that a wife had caused the husband’s arrest on a charge of disorderly conduct, and that when that action was nolle grossed the justice before whom it was pending warned the husband that the wife wished him to stay away from her, affords no justification for the husband’s continued absence when the action of the justice was not shown to have been concurred in by the wife.
    2. Divorce, § 10*—when sufficient ground for desertion not shown. The fact that the wife’s adult sons threatened to kill the husband if he did not leave the wife’s home cannot be attributed to the wife as an' excuse for the desertion by the husband, where it is not shown that she aided and abetted in such threats, but it appears that she had her sons arrested in consequence thereof.
    George J. Dreiske, for plaintiff in error.
    Theodore A. Kolb, for defendant in error.

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

   Mr. Justice McDonald,

delivered the opinion of the court.


text:
    Edwin J. Bowes, Jr., et al., Appellants, v. Eugene S. Pike, Appellee.
    Gen. No. 21,372.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Bill by Edwin J. Bowes, Jr., et al., complainants,„ to restrain Eugene S. Pike, one of the defendants, from entering judgment upon a note for $1,250, dated February 1, 1908, due six months after date, with interest at the rate of six per cent, per annum from date. By stipulation, defendant Pike was permitted to file a cross-bill in said cause,' wherein he prayed that a decree be rendered in his favor for the amount due him on the note in question.’ Allegretti, the other defendant, was dismissed from the suit by consent of the parties. Upon a hearing of the cause thus consolidated, the chancellor found the issues for the cross-complainant, and entered a decree in his favor for the sum of $1,776, being the amount then due on said note, and dismissed complainants’ bill for want of equity. From this decree, complainants appeal.
    Abstract of the Decision.
    1. Bills and notes, § 440

      —when evidence sufficient to show knowledge of payee of release of joint makers. In an action by the makers of a note to enjoin the payee from entering judgment thereon, evidence examined and held to show that the payee had knowledge of an agreement by one of the makers to save the others harmless from liability thereon, and that such payee acquiesced therein.
    2. Bills and notes, § 96*—when extension of time releases joint makers. Wliere the payee' of a note enters into a binding contract with one of several makers thereof, extending the time of payment on the note without the' knowledge or consent of the other makers, the latter are released from further liability.
    Mater, Meter, Austrian & Platt, for appellants.
    Mate, Fisher & Botden, for appellee Eugene S. Pike; William Warren Case, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Harriette A. Ingraham et al., Executors and Trustees, Appellees, v. John W. Mariner and Lucinda W. Mariner, Executors, and J. Platt Underwood, Appellants.
    Gen. No. 21,389.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Bill for an accounting by Harriette A. Ingraham, Henry, V. Freeman and John F. Gilchrist, executors and trustees under the will of Granville S. Ingraham, deceased, complainants, against John W. and Lucinda W. Mariner, executors of the estate of Ephraim Mariner, deceased, and J. Platt Underwood, defendants. From a decree stating an account between the parties and making final disposition of the assets of their joint venture, defendants appeal.
    As this case has been reviewed on several previous occasions, it is unnecessary to reiterate in detail the facts which are set forth in the following former opinions in the case: Ingraham v. Mariner, 194 Ill. 269; Mariner v. Ingraham, 127 Ill. App. 542, 550; 230 Ill. 130; 255 Ill. 108, aff’g 165 Ill. App. 200.
    It was contended by defendants that under the contract of January 2, 1889, upon a sale of the property, interest on the $70,000 invested by plaintiffs’ decedent in the joint enterprise should be included only for the purpose of determining the profits accruing therefrom, but that in the event of a loss, this interest item should be excluded; that as the decree of the chancellor included said interest item in 'determining the amount of the loss, it was erroneous in this respect.
    The agreement of January 2,1889, provided, in part, as follows:

      Abstract of the Decision.
    1. Contracts, § 201

      —when interest to he included in determine ing profits. Where the language of a contract expressly provides that a certain interest item therein shall be included for the purpose of determining profits in-the absence of any special provision for the determination of losses, it must be held that the same basis of computation was intended to apply to the losses.

      “The said A. J. Cooper, of the 2nd part, being desirous of taking an interest in said land, agrees to make a loan of $30,000 (Thirty Thousand Dollars) at his own expense; also agrees to pay interest on said loan, and 6% on balance of Capital Stock to the said G-ranville S. Ingraham; the 6% on the balance is not required to be paid until the sale of said land; then that amount to be added to the Capital Stock. ****** **
    “The said Ingraham of the 1st part agrees to give to said Cooper of the 2nd part, half of the profits, after adding all expenses and interest to the $1,000 (one thousand dollars) per acre of.said land.”
    The aforesaid contention of defendants was based upon the language of the contract hereinabove quoted, viewed in the light of the foregoing decisions in the case.
    It was urged, by way of cross-error, that interest, from the date of sale, should have been allowed upon the principal amount of $48,971.09 found due from defendants to complainants. The contention of complainants was predicated upon section 2, ch. 74, Eev. St. (J. & A. 6691.)
    Lines, Spooner, Ellis & Quarles and Scott, Bancroft & Stephens, for appellants.
    William; K. Otis, for appellees.

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Contracts, § 201*—how losses to be determined. Loss is the antithesis of profit, and both are determined in the same manner unless otherwise provided in the contract.

3. Courts, § 153*—what effect given to dictum on subsequent appeal. Though the statement of the Supreme Court on a former appeal as to a question not then before the court may he regarded as dictum, it will, nevertheless, on a .subsequent appeal be taken by the Appellate Court as indicating the view of the Supreme Court on a point at that time, especially when not inconsistent with anything heretofore said in the case.

4. Partnership, § 89*—when advances by partners a firm obligation. Advances by partners which cannot be repaid by reason of a deficiency in the assets are to be treated as a debt of the firm.

5. Interest, § 5*—when interest not allowed on advances not repaid to partner. Hurd’s Rev. St., ch. 74, sec. 2 (J. & A. If 6691), does not warrant the allowance of interest on an amount decreed to be due a partner for unpaid advances to the firm, the relationship of debtor and creditor not existing between such partners and the partner in whose favor the amount is decreed.

McGoorty, J., dissenting.


text:
    J. E. McCoy et al., Appellees, v. Acme Automatic Printing Company, Appellant.
    Gen. No. 21,392.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March, term, 1915.
    Appeal dismissed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Motion to dismiss appeal as prematurely taken.
    A. Gr. Dicus, for appellant.
    Baker & Holder, for appellees.

      Abstract of the Decision.
    Appeal and ebbor, § 269

      —when appeal prematurely taken. Where at the time an appeal is taken there is pending before the trial court a motion to vacate the judgment from which it is taken, the judgment is not final, and the appeal is prematurely taken.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    William H. Couch et al., on appeal of Mathaus Scherrer, Appellant, v. Lake Shore Building Loan & Homestead Association, Appellee.
    Gen. No. 21,401.
    Building and loan associations, § 76

      —tohen premiums on loans chargeable up to time of insolvency. An insolvent building and loan association in calling in its loans to borrowing members who have paid premiums thereon may charge each member on the settlement with so much of the premiums as tvas earned at the time the association ceased doing business.
    Appeal1 from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed July 20, 1916.
    William H. Eichardson, for appellant.
    Burton, Kannally & Megan, for appellee.

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

   Mr. Justice McDonald,

delivered the opinion of the court..

Appellant filed a petition in the court below, seeking the repayment by the receiver of appellee of $166, alleged to have been overpaid to said receiver, on a loan made by appellee to appellant, the said $166 being the earned portion of a twenty-five per cent, premium with which appellant had been charged on the original loan. On a hearing, the court found the issues for the appellee and dismissed appellant’s petition for want of equity.

The only question raised on this appeal is the right of an insolvent building and loan association, in calling in its loans to borrowing members who have paid premiums thereon, to charge each member, on the settlement, with so much of the premium as was earned at the time the association ceased doing business. While this precise question" has never been passed upon by the Supreme Court of this State, it was directly involved and adjudicated in the following cases, viz.: Choisser v. Young, 69 Ill. App. 252; Sullivan v. Spaniol, 78 Ill. App. 125; Dooling v. Davis, 84 Ill. App. 393; Dooling v. Coats, 86 Ill. App. 411; Barry v. Downs, 87 Ill. App. 486; Dooling v. Smith, 89 Ill. App. 26; Hedley v. Geissler, 90 Ill. App. 565, where it was uniformly held that a borrowing stockholder of a building and loan association was chargeable with the earned premium, from the date of the loan to the date of insolvency. This holding was also adhered to in Towle v. American Building, Loan & Investment Society, 61 Fed. 446, wherein the court, in summing up its reasons therefor, stated (p. 448):

‘ ‘ The most difficult question relates to the premium. * * * It is urged that he (the borrowing stockholder) ought to be credited with the premium, because he has neither received it in money, nor its consideration in the length of time for which the loan was to run, or in the manner of its repayment as originally contemplated. The objection would be insuperable if the borrower at the time of the loan stood in the attitude of a stranger to the association, and the act of borrowing constituted such contract as usually arises upon a loan. In such a case the lender could not insist upon the premium while withholding a portion of the consideration and benefit upon which it was passed. But the relation between the borrower and his associate stock- ■ holders, and the legal relationship arising from the transaction, are not of that character. * * * The inability of the association to proceed to its expected termination by reason of ' the impairment of its collectible loans is attributable alike to each stockholder. The officers of the association are their agents, and the results of their investments are alike the fortune or misfortune of each stockholder, whether it be borrower or nonborrower. When a condition thus brought about justifies a court of equity in peremptorily terminating the career of the association, the adjustment should be made as near upon the line of what would take place if the association lived out its life as is possible. I can think of no fairer rule than to regard the nominal life of the association as eight years, and to look upon each year short of that period as an aliquot portion thereof. This would give the borrower credit for such premium as the number of years, or fractional portions thereof, unlived by the association, bear to the whole period of its normal life of eight years. To that extent, the premium is unearned; for the period already passed, it has been earned.”

The foregoing view represents the great weight of authority in this State, as expressed by the cases hereinabove, ref erred to, and is, in our opinion, the correct one. In arriving at this conclusion, we are not unmindful of the views expressed in Wright v. Curtin, 137 Ill. App. 276, in which the court cited, with apparent approval, the view stated in the Young case, supra, wherein it was held that when a building and loan ' association becomes insolvent, a borrowing stockholder has no more right to withdraw from the assets premiums paid by him and thus decrease the asséts in which every stockholder has an interest, than other stockholders have to withdraw the payments made by them, of instalments, interest or premiums; but the court in the Wright case, supra, concluded by expressing a preference for the view adopted in Strohen v. Franklin Saving Fund & Loan Ass’n, 115 Pa. St. 273, which is not in harmony with that enunciated in the Young case, supra. Upon an examination of the opinion in the Wright case, supra, it will he found that the issue raised by the pleadings in the court below, and by the assignments of error on appeal, was on the question of usury, and not the propriety of charging the borrowing stockholder with the earned premium, hence the observations of the court with reference to the application of the premium are mere dictum.

The decree of the Circuit Court of Cook' county will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Milton M. Green, Plaintiff in Error.
    Gen. No. 22,092.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon; Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois against Milton M. Green, defendant, charging him with adultery and fornication. Defendant was found guilty of the offense of living in an open state of adultery and fornication with one Mary Williams, and was sentenced to pay a fine of two hundred dollars and costs.
    To reverse this judgment, this writ of error is prosecuted.
    Frank H. Novak and Charles Hughes, for plaintiff in error.

      Abstract of the Decision.
    1. Adulteby, § 4

      —when information not repugnant. An information for adultery and fornication is not open to the objection of repugnancy by reason of charging that the offense was committed by defendant with one “Mary Doe whose name to this affiant is unknown.”
    2. Criminal law—when objection to form of verification too late on appeal. The objection to the verification of an information that the words “sworn to” are used instead of the words “affirmed to,” relates to a matter of form only and comes too late when first raised on appeal.
    3. Adulteby, § 4*—when status of companion in adultery need not be shown. In a prosecution on an information charging defendant and another with living together in an open state of adultery and fornication, where there is competent evidence to show that defendant was at the time of the alleged offense a married man and that his wife was then living and had not been divorced from him, it is not necessary for the prosecution to prove the status of the woman with whom the offense is charged to have been committed.
    4. Criminal law, § 227*—when reopening of ease to admit evidence not ground for reversal. Where on a prosecution for adultery and fornication defendant’s wife is called as a witness for the prosecution and over defendant’s objection is permitted to testify to the fact that he is her husband, it is not an abuse of the trial court’s discretion to reopen the case on motion of the prosecution after the case has been closed to permit the introduction of testimony of the brother of defendant’s wife that he was present when the marriage took place.
    5. - Criminal law, § 538*—when admission of evidence not ground for reversal. Even though the evidence of defendant’s wife was ' incompetent in a prosecution against him, yet where the case was tried without a jury and there is sufficient competent evidence in the record to prove the matter testified to by her, error in admitting her testimony is not ground for reversal.
    6. Adulteby, § 5*—when evidence sufficient to support judgment. Evidence in a' prosecution for adultery and fornication, examined and held to establish guilt of defendant beyond a reasonable doubt.
    Maclay Hoyne, for defendant in error; Ernst Bubbler, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    Valida Densby, Appellee, v. Henry F. Umbricht, Appellant.
    Gen. No. 21,317.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. E. M. Vandeventeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Action in tort brought on behalf of Valida Densby, plaintiff, by her next friend, against John Umbricht, Clara Bitter (sued by her maiden name, Clara Umbricht), Henry F. Umbricht and Chicago Bank & Office Fixture Company, a corporation, defendants, to recover damages for injuries sustained by being struck by an automobile, alleged to be owned, managed and operated by said defendants. The action was subsequently dismissed as to the Chicago Bank & Office Fixture Company and John Umbricht (the latter having died), and proceeded to trial as to Henry F. Umbricht and Clara Bitter. Henry F. Umbricht, in addition to the plea of the general issue, filed a special plea denying ownership and operation of the automobile in question. There was a trial by jury resulting in a verdict for plaintiff in the sum of $3,250 against both defendants. A remittitur of $500 having been entered, defendants’ motions for a new trial and in arrest of judgment were overruled and judgment entered on the verdict for $2,750 against each defendant. From such judgment, Henry F. Umbricht appeals.
    Before entry of final judgment, it was suggested of record that plaintiff, since the commencement of suit, had arrived at legal age, and all pleadings were accordingly amended by striking therefrom the words “Marshall O. Densby, her' father and next friend,” wherever the said words appear therein.

      Plaintiff’s evidence tended to show that on July 18, 1912, the defendants Clara Bitter and Henry P. Umbricht, together with Emil Umbricht, his brother, were riding in an automobile on Jackson Boulevard (in the City of Chicago), in an easterly direction; that when the automobile reached the west line of Wood street, it “swerved or zigzagged” in a northeasterly direction, passing over the curbstone and the parkway between the curbstone and sidewalk at the northeast corner of th,e intersection of said streets, and upon the sidewalk there, where plaintiff was walking, striking her with such force as to render her unconscious and to sustain injuries serious and permanent. The automobile continued in its onward course, crashing into the porch of an adjacent brick house, and stopping after the forward portion of said automobile had partially descended the basement steps thereof. There was a conflict of evidence as to the speed at which the car was driven at the time and place in question.
    It was admitted that the front seat of the car was occupied by Clara Bitter and her two uncles, Henry P. Umbricht and Emil Umbricht. The evidence of plaintiff tended to show that these three persons were the only occupants thereof; that the defendant Clara Bitter was seated on the lap of one of the two men in question, and that she and the man on whose lap she was seated were jointly operating the car. None of plaintiff’s witnesses, however, identified defendant Henry F. Umbricht as the man who was thus jointly engaged. Defendants ’ witnesses Bahnsen and Bohner, employees of Henry P. Umbricht, testified that they occupied the rear seat of said automobile; that it was operated solely by Clara Bitter; that Henry P. Umbricht was seated on the lap of his brother, Emil Umbricht, and that at no time during the trip in question did the parties on the front seat of the car change their respective positions. . It was admitted by Henry F. Umbricht that he first operated an automobile six to eight years prior to the trial, which was had January 4, 1915; that so far as he knew, his brother Emil never owned nor operated an automobile, and that the latter was a nonresident of Chicago.
    Abstract of the Decision.
    Automobile and gabages, § 3

      —when evidence insufficient to support verdict. In an action to recover for personal injuries alleged to have been caused by an automobile alleged to have been owned, managed and operated by defendant, evidence of defendant’s operation or participation in the operation or ownership of the automobile, held insufficient to support a verdict against him.
    Glennon, Cary, Walker & Howe, for appellant; Howard T. Ballard and Sidney C. Murray) 1 of counsel.
    Gallagher & Messner, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    W. E. Fisher, Appellee, v. W. H. Dunn, Appellant.
    Gen. No. 21,337.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Action by W. E. Fisher, trading as W. É. Fisher & Company, plaintiff, against W. H. Dunn, defendant, to recover for goods sold and delivered. There was a trial by jury, and at the close of all the evidence the court directed the jury to find the issues for plaintiff, and to assess his damages in the sum of $93.49, which was accordingly done, and judgment entered upon the verdict. From such judgment, defendant appeals.
    Abstract of the Decision.
    1. Account stated, § 25

      —when evidence sufficient to support verdict. In an action on an account stated, evidence examined and held sufficient to support a verdict for plaintiff.
    2. Appeal and error, § 1520*—when failure to give peremptory instruction in writing not ground for reversal. While it is the better practice when a peremptory instruction is given to find for one of the parties, to give a written instruction, a failure to do so does not constitute reversible error.
    It appeared that defendant purchased groceries and meats from F. F. Brown & Company, and subsequently from plaintiff, who succeeded F. F. Brown & Company. The evidence showed that defendant, at various times, made payment to plaintiff upon stated accounts. Checks evidencing such payments, drawn by defendant and made payable to plaintiff, were in evidence. The last stated account between the parties was for $93.49, rendered August 6, 1914. It was contended by defendant that he did not know he was dealing with plaintiff, but supposed he was dealing with F. F. Brown & Company. The only testimony in the case was that of plaintiff and defendant. The evidence showed that defendant made payments to plaintiff on accounts stated as follows: May 4, 1914, $50; June 6, 1914, $40; July 6, 1914, $55. .
    Charles S. McNett, for appellant; Louis W. McIntyre, of counsel.
    Willis Melville, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Ross Attley Lumber Company, Appellee, v. Columbia Hardwood Lumber Company, Appellant.
    Gen. No. 21,362.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Action by Ross Attley Lumber Company, a corporation, plaintiff, against Columbia Hardwood Lumber Company, a corporation, defendant, to recover the contract price of two cars of lumber. With its declaration, plaintiff filed its affidavit of claim, showing $1,419.93 due. The defendant filed with its plea of the general issue thereto, an affidavit of merits alleging that said lumber was not up to grade, nor according to contract; that defendant had not accepted same and that plaintiff was indebted to defendant for freight and demur-rage charges paid by defendant on said lumber in the sum of $238.92. There was a trial by jury resulting in a verdict in favor of plaintiff in the sum of $1,399.52. From such verdict the plaintiff consented to a remittitur of $38.95, and, thereupon, motion for a new trial was overruled and judgment entered against defendant in the sum of $1,360.57. From such judgment, defendant appeals.
    It appeared that defendant, in Chicago, ordered from plaintiff two carloads of quarter oak lumber, “flooded stock, but very well washed and cleaned.” Said lumber was shortly thereafter shipped by plaintiff from Heth, Arkansas, to defendant’s order, Chicago. There was a conflict of evidence as to the condition of the lumber in question upon its arrival in Chicago. It was sold subject to the rules of inspection of the National Hardwood Association. These rules did not appear in evidence. Upon its inspection by defendant, the latter refused to accept the lumber, and, subsequently, declined to permit a mutual inspection thereof, on the ground that a portion of said lumber was covered with mud, that it was not possible, therefore, to determine how badly it had been damaged by water, asked plaintiff to pay the freight and demur-rage charges thereon and take it away. Defendant’s secretary, A. H. Schoen, testified that he telephoned plaintiff, before defendant removed the lumber from the cars, that it was not up to grade and not what defendant ordered; that plaintiff’s representative upon the following day requested defendant to unload the lumber from the cars so as to save demurrage, which defendant did. No part of the lumber in question had been used by defendant and remained in its possession, subject to plaintiff’s order. There was evidence introduced by defendant tending to show that the value of said lumber, when received, was $330 to $340 less than the contract price.
    Abstract of the Decision.
    1. Sales, § 450

      —when order and acceptance constitute contract. An order of goods followed by an acceptance of such order constitutes the contract between the parties.
    2. Sales, § 243*—when warranty implied. Where goods of a certain kind are ordered and such order, is accepted, there is an implied warranty on the part of the seller that the buyer will get the goods ordered.
    Harry A. Biossat, for appellant.
    Hamlin & Topliee and Norman K. Anderson, for appellee; Homer H. Cooper, of counsel.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

3. Sales, § 329 —when evidence insufficient to show acceptance. In an action to recover the contract price of certain goods, evidence examined and held insufficient to show an acceptance of the goods by the buyer.

4. Sales, § 279*—when conduct of buyer insufficient to show waiver of implied warranty of quality. In an action to recover the contract price of goods sold, evidence that the buyer after inspecting the goods and rejecting them refused the request of the seller to have an inspection of the goods made by a third person, but continued to retain possession at the latter’s request, is not sufficient to show such acceptance as would waive an implied warranty as to quality of the goods.

5. Sales, § 330*—lohen instruction erroneous. In an action to recover the contract price of goods, a requested instruction of the seller that if the jury believed from the evidence that the buyer accepted the goods it would be liable under its contract, should be refused where it excludes the element of implied warranty arising from the contract.

6. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which proceeds upon the theory that if the goods were not according to the contract but the buyer accepted them, the implied warranty as to quality was thereby waived, is erroneous.

7. Sales, § 330*—when instruction erroneous. In an action to recover the contract price of goods, an instruction which erroneously states what will constitute a constructive acceptance and invades the province of the jury by assuming such acceptance should be refused.


text:
    The People of the State of Illinois, Defendant in Error, v. Lewis E. Rice, Plaintiff in Error.
    Gen. No. 22,135.
    (Not to he reported in full.)
    Abstract of the Decision.
    Disobdebly house, § 6

      —when evidence sufficient to show defendant an inmate of house of assignation. On a prosecution by information, charging defendant with being an inmate of a house of ill fame, evidence examined and held sufficient to support a judgment that defendant was an “inmate” within the meaning of the Criminal Code, ch. 38, sec. 57a-l [Cal. Ill. St. Supp. 1916 ¶ 3591 (1) ].

      Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois against Lewis Bice, defendant, charging him with being, on September 22,1915, an inmate of a house of ill fame. Trial by jury having been waived, the cause was submitted to the court, resulting in adjudging defendant guilty and sentencing him to pay a fine of two hundred dollars and the costs of suit, taxed at six dollars. To reverse .this judgment, defendant prosecutes this writ of error.
    It appeared that defendant, on above date and for six years prior thereto, was employed as clerk in the Queen Hotel, being the premises referred to and described in said information. It was contended by defendant, if he was guilty of any offense under the evidence, that he was guilty of being a keeper and not an inmate of a house of ill fame or assignation, etc.
    Maurice J. Slater, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Hans Ness, Plaintiff in Error.
    Gen. No. 22,257.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patbick B. Flahabatt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed July 20, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois against Hans Ness, defendant, charging him with obtaining from Eugene Sullivan, the informant, with intent to cheat and defraud, by means of false pretenses, the sum of one hundred and ninety dollars. Trial by jury having been waived, the court found the defendant guilty in manner and form as charged in said information, and sentenced him to the House of Correction of the City of Chicago for three months, and further to pay to the clerk of the Municipal Court of Chicago, a fine of two hundred dollars and costs of suit. To reverse this judgment, defendant prosecutes this writ of error.
    It appeared that defendant entered into a contract with the said Sullivan whereby he agreed to do certain carpenter work on Sullivan’s dwelling house for a certain stipulated sum. Defendant, at Sullivan’s request, performed other work on said house in addition to that specified in their contract, for which work defendant, as a result of compromise, accepted one hundred and ninety dollars in full settlement of all claims against Sullivan. On the day following, defendant executed and delivered to Sullivan a statutory waiver of lien as to said premises. Sullivan and his wife testified that said one hundred and ninety dollars was paid by Sullivan to defendant upon representation by the latter that all bills for labor and material furnished had been paid. Defendant testified that at the time of said settlement, he stated to Sullivan that there were unpaid bills in the sum of four hundred dollars for material used by defendant on said property. Defendant further testified that subsequent thereto, he offered to pay the Hines Lumber Company for lumber used by defendant on said property in monthly instalments, which offer said company declined to accept. There was no evidence of any lien filed on informant’s premises by any subcontractor, nor that informant received any notice or claim for such lien, although the information was filed more than four months following the completion of said work by defendant.
    Abstract of the Decision.
    False pretenses, § 37

      —when evidence insufficient to show intent to defraud hy false pretenses. In a criminal proceeding by information, charging defendant with obtaining money from the informant with the intent to cheat and defraud, evidence examined and held insufficient to support a judgment against defendant.
    Peter J. Johnson, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court..


author: Mr. Justice Niehaus

text:
    Old Colony Life Insurance Company, Appellant, v. Helen L. Graves, Appellee.
    Gen. No. 5,921.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Sltjsseb, Judge, presiding. Heard in this court at the April term, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed September 13, 1915.
    Statement of the Case.
    Bill by Old Colony Life Insurance Company, complainant, against Helen L. Craves, defendant, to vacate and set aside a judgment recovered by defendant against the Cosmopolitan Life Insurance Association for the sum of $1,605.25 and costs of suit, and to restrain the defendant from prosecuting a suit commenced by her against the complainant to enforce payment of the judgment recovered against said Cosmopolitan Life Insurance Association, and a cross-bill seeking affirmative relief. From a judgment for defendant, complainant appeals.
    The Old Colony Life Insurance Company was a domestic corporation, doing business as an old-line reserve insurance company; and the Cosmopolitan Life Insurance Association, on and prior to September 9, 1909, was a corporation existing under the laws of this State, and doing insurance business on the assessment plan. The Cosmopolitan Association had prior to July 1,1901, been known by the name of the Knights of the Globe Mutual Benefit Association. On September 9,1909, the complainant entered into an agreement with the Cosmopolitan Life Insurance Association by which the Old Colony Company promised, in consideration of receiving all the assets of the Cosmopolitan Association, to assume all the liabilities of the Cosmopolitan Association then existing, and which might exist, on and after the date of the agreement.
    Abstract of the Decision.
    1. Insurance, § 768

      —when member of mutual benefit association not bound by by-laws increasing assessments. Where a certificate of insurance issued by a mutual benefit association provides that the application, together with the certificate and by-laws of the association, shall constitute the contract of insurance, and such certificate provides that the insured shall be liable for assessments according to the table in the by-laws, the rate of assessment for which he is liable is the rate existing at the time he became a member, and it cannot be increased under new by-laws made by a successor to the society.
    The defendant recovered the judgment mentioned against the Cosmopolitan Life Insurance Association, for the amount claimed to be due her upon the certificate of membership issued to defendant’s husband, Frank E. Graves, by the Knights of the Globe Mutual Benefit Association, the predecessor of said Cosmopolitan Association.
    Botsford & McCarthy, for appellant.
    De Goy B. Ellis, for appellee; Irving M. Western and Jeff McCarn, of counsel.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Insurance, § 783 —when forfeiture for nonpayment of assessments not declared. Forfeiture of a certificate of mutual benefit insurance for nonpayment of assessments will not be declared where the member alleged to be in default is not notified in the precise manner specified by the by-laws of the order.

3. Insurance, § 245*—how forfeitures of insurance policies regarded in law. Forfeitures of insurance policies are not favored in law.

4. Insurance, § 782*—when right of forfeiture for nonpayment of assessments does not exist. An insurance policy issued by a mutual benefit association may not be forfeited for nonpayment of assessments when the insured sent a sum which was sufficient to cover the assessments due if the rate had not been illegally increased in violation of his contract.

5. Insurance, § 799*—when beneficiary not estopped to deny forfeiture of policy for nonpayment of assessments. A beneficiary is not estopped to deny the forfeiture of a policy by the nonpayment of assessments because the insured signed a false reinstatement health certificate, when the insured was not in default, and the insurer had no right to exact such a certificate.

6. Insurance, § 904*—When evidence sufficient to show intention of insured not to make warranties as to his health. Where an insured, making application for reinstatement after alleged default by nonpayment of assessments, writes across the printed words containing the warranties the words “miscarriage of notice of assessment,” he must be deemed to have not intended to make any statement concerning the warranties but, on the contrary, to have expected his reinstatement to be based upon the supposed miscarriage of a notice of assessment to him.

7. Insurance, § 852*—when evidence sufficient to show procurement of release by fraudulent statements of agent. In an action on an insurance policy, evidence held sufficient to establish that a release which was obtained from the beneficiary, the wife of insured, was obtained as a result of fraudulent representations.

8. Insurance, § 852*—when release of insurance company from liability invalid. A release from liability which is procured by an agent of the insurer from the beneficiary, the wife of the insured, while the latter is in a serious mental and physical condition following the death of the husband, as the result of fraudulent representations as to the making of false statements by the insured in an application for reinstatement, and as to the right of recovery, is invalid.

9. Insurance, § 862*—who is agent of insurance company for purposes of service of process. A representative of an insurance company who has authority to take applications for membership in an insurance corporation, to collect dues and to remit them to the company, to prepare proofs of death and take charge of them for the company, and upon receiving drafts in return to pay death claims to the beneficiaries and obtain releases, must be deemed an agent upon whom process may be served.

10. Evidence, § 39 —when presumed that process sent through mails received. It must be presumed that an insurance company received a copy of summons served on its agent which was mailed by him in the due course of the mails.

11. Process, § 78*—what constitutes laches in failing to question legality of service of summons. The failure of an insurance company during a period of six months while a suit at law was pending to question the legality of the service of summons on one alleged not to be an agent constitutes laches, which is a bar to equitable relief in action to vacate judgment.

12. Judgment, § 286*—when equity will not set aside judgment at law for want of proper service of process. A court of equity will not lend its aid to set aside a judgment at law for want of proper service of process unless it appears that there is a meritorious defense to the judgment or to the claim upon which the judgment is founded.

13. Equity, § 189*—when cross-hill seeking affirmative relief proper in action hy insurance company to set aside judgment on insurance policy. In an action in equity by an insurance company to vacate and set aside a judgment at law recovered by the beneficiary in an action at law on an insurance certificate against the company, to whose business complainant was successor, and to restrain the enforcement of such judgment, held that it was proper for defendant to file a cross-bill asking for affirmative relief and seeking a decree to compel complainant to pay the amount alleged to be due on the insurance certificate.

14. Equity, § 23*—when jurisdiction may he exercised to adjudicate all rights of parties. Where a court of equity has jurisdiction of the parties and the subject-matter of the litigation, it has authority, for the purpose of administering equitable relief, to adjudicate- all the rights of the parties which are involved in the litigation.

15. Equity, § 23*—when decree requiring insurance company to pay assumed indebtedness proper. Where an insurance company has assumed all the obligations of its predecessor, a decree is proper upon a cross-bill seeking' affirmative relief filed in an action by the company to set aside a judgment secured against such predecessor, requiring the complainant to pay such judgment.