text:
    West Disinfecting Company, Appellee, v. Harold I. Koppelman et al. Harold I. Koppelman, Appellant.
    Gen. No. 24,990.
    1. Appeal and error, § 1105

      —when joint appeal is properly dismissed. Where five persons were adjudged guilty of contempt of court in violating an injunction, a joint appeal hy such persons was properly dismissed, as the right of appeal is a statutory right and can only he availed of when allowed hy the court, and must then he in conformity with the prayer for appeal and the order of allowance.

      2. Appeal and error, § 683

      —necessity that appellee docket and secure dismissal of separate appeals after dismissal of joint appeal. Under sections 100 and 101 of the Practice Act (J. & A. ff 8637, 8638), where separate appeals from an order adjudging a number of persons guilty of contempt in violating an injunction were duly perfected in the trial court, and a joint appeal by all such persons was dismissed as a nullity, such dismissal was ineffective to terminate the separate appeals, and since none of such separate appeals was docketed in the Appellate Court, it was essential that the appellee docket said appeals in the Appellate Court and secure their dismissal.
    3. Appeal and error, § 1105*—dismissal of appeals for failure to docket. Where separate appeals from an order adjudging a number of persons guilty of contempt in violating an injunction were duly perfected in the ,trial court, but were not docketed in the Appellate Court, such appeals would be dismissed on motion of the appellee, with damages, under sections 100 and 101 of the Practice Act (J. & A. Iff 8637, 8638).
    4. Costs, § 83*—award of damages on dismissal of appeal. Under Practice Act, secs. 100, 101 (J. & A. ff 8637, 8638), as to the dismissal of appeals, the awarding of damages is mandatory, and the discretion of the court is limited to the amount of damages which shall be not less than $50 and not more than $250.
    5. Appeal and error, § 897*—when transcript does not comply with statute. Under section 100 of the Practice Act (J. & A. f 8637), a transcript, in an appeal from an order adjudging a person guilty of contempt in violating an injunction, which transcript contains the original hill of complaint, the summons, the petition for writ of sequestration and attachment for contempt, with affidavits, the order to show cause, the answer of respondents thereto, the judgment order, the appeal bond and affidavits of sureties, the order approving the bond, the prmcipe and certificate of the clerk of court, does not comply with the statute.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Appeal dismissed.
    Opinion filed January 30, 1920.
    West & Eckhart, for appellant.
    Rosenthal, Hamill & Wormser, for appellee; Charles H. Hamill and Leo F. Wormser, of counsel.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

On August 28, 1918, the chancellor entered an order adjudging .five respondents (Harold I. Koppelman, Jacob L. Brenn, Arthur C. Tretow, Lillian Koppel-man and IT. S. Sanitary Products Corporation) guilty of contempt of court in violating a certain injunction theretofore issued, and imposing punishment severally upon them. Harold I. Koppelman was sentenced to 60 days in the county jail and fined $500; Brenn was sentenced to 60 days in said jail and fined $50; Tretow was sentenced to 5 days in said jail and fined $50; Lillian Koppelman was fined $300; and the above-named corporation was fined $1,500. A part of the order is as follows:

“The said respondents, and each of them, pray an 'appeal to the Appellate Court, in and for the First District of Illinois, which is allowed by the court upon the filing of a certificate of evidence within forty-five (45) days and upon the filing of bond by the several respondents, within thirty (30) days from the date hereof, in the‘following sums, to wit: Harold I. Koppelman, two thousand dollars ($2,000); Jacob L. Brenn, fifteen hundred dollars ($1,500); Arthur C. Tretow, eight hundred dollars ($800); Lillian Koppelman, five hundred dollars ($500), and IT. S. Sanitary Products Corporation, twenty-five hundred dollars ($2,500), with sufficient security, respectively, and each of which said bonds shall be approved by the court.”

Within the time limited each of the respondents presented an appeal bond, which was approved and filed by an order entered of record on September 3, 1918.

On October 2, 1918 (being within the time limited by the statute) all five of said respondents filed in this court a short transcript of record consisting of a copy of said judgment order of August 28,1918, and copies of said five appeal bonds, duly certified by the clerk of the circuit court, to which transcript was attached a joint assignment of errors. The joint appeal was here docketed as general number 24,710. On the same day, on motion of the five appellants, an order was entered extending their time to file a complete transcript of the record, and later within the time such complete transcript was filed. On November 4, 1918, the appellee entered its special appearance and filed a motion to dismiss said appeal upon the grounds, (a) that separate appeals instead of a joint appeal should have been prosecuted, and (b) that the short transcript did not show an order approving said appeal bonds. On February 11, 1919, this court sustained the motion and dismissed said joint appeal, No. 24,710. This was proper. “The right of appeal is a statutory right and can only be availed of when allowed by the court, and must then be in conformity with the prayer for appeal and the order of allowance.” (Fortune v. Gilbert, 207 Ill. 235, 237; Tedrick v. Wells, 152 Ill. 214, 217; Hileman v. Beale, 115 Ill. 355, 357; First Congregational Church of Harvard v. Page, 255 Ill. 267, 268.)

On January 30,1919 (this court having indicated its purpose to dismiss said joint appeal, No. 24,710), each of the five respondents filed a separate prcecipe and short record and sued out a writ of error to review said judgment order of August 28, 1918, of the circuit court. These causes were here docketed as Nos. 24,953, 24,954, 24,955, 24,956 and 24,957. On February 11, 1919, each writ of error was made a supersedeas, and an order was entered consolidating for hearing causes Nos. 24,954, 24,955, 24,956 and 24,957 with cause No. 24,953 (in which Harold I. Koppelman is plaintiff in error), and that the record, abstracts and briefs, filed in cause No. 24,953, should stand as the record, abstracts and briefs in the other four causes. On the same day, in cause No. 24,710, an order was entered allowing Harold I. Koppelman to withdraw the compíete record, theretofore filed in this court, and to file the same in cause No. 24,953, as a return to the writ of error, and this accordingly was done on February 11, 1919.

On February 17, 1919, under the provisions of sections 100 and 101 of the Practice Act (J. & A. 8637, 8638), the West Disinfecting Company filed in this court five written motions to dismiss certain appeals and to enter judgments for statutory damages. One motion was to dismiss the separate appeal of Harold I. Koppelman from the said judgment order of the circuit court of August 28, 1918, and for damages, and was accompanied with printed suggestions. The other four motions had reference to the separate appeals, respectively, of Jacob L. Brenn, Arthur C. Tretow, Lillian Koppelman and U. S. Sanitary Products Corporation, from said judgment order. These motions were docketed in this court as Nos. 24,990, 24,991, 24,992, 24,993 and 24,994. With the motions there were filed five “short” transcripts of the record, one in each case, certified to by the clerk of the circuit court, “according to a certain praecipe.” On March 4, 1919, on motion of Harold I. Koppelman, in ease No. 24,990, he was allowed to enter his special appearance and to file counter suggestions to the motion to dismiss his appeal and to assess damages and all five motions were taken under advisement by this court.

It is provided in part in section 100 of the Practice Act (J. & A.jf 8637) :

“If copies of the records of judgments, orders and decrees appealed from shall not be filed within the time above allowed and appellee shall thereafter file in said Supreme or Appellate Court, as the case may be, the certificates of the clerk of the court, by which such appeal was granted, stating therein the title of the. cause, the date, character and amount of the judgment, order or decree appealed from, against whom the same was rendered, the time when and the conditions, if any, upon wMch the appeal was granted, the name of the party talcing’ the appeal, and that the appeal was perfected as required by the order allowing the same, such certificate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the Supreme or Appellate Court to affirm the judgment, order or decree appealed from, or to dismiss the appeal, and the court shall affirm the judgment or dismiss the appeal as for want of prosecution.”

It is provided in section 101 of said Act (J. & A. fl 8638):

“When appeals from judgments, orders or decrees for the recovery of money are dismissed by the Supreme or Appellate Court for want of prosecution, or for failing to file authenticated copies of records, as required by law, or are affirmed for either of such causes, the court shall enter judgment against the appellants for not less than five (5) nor more than ten (10) per cent damages on the amount recovered in the trial court or inferior court. If the judgment, order or decree appealed from is not for the recovery of money, the Appellate or Supreme Court, as the case may lie, shall, in case of dismissal or affirmance, for either of the causes in this section mentioned, enter judgment for not less than fifty (50) dollars, nor more than two hundred and fifty (250) dollars damages. The appellee shall be entitled to execution thereon as on other judgments.”

Counsel for the West Disinfecting Company contend that the record in the present case (No. 34,990) discloses that the separate appeal of Harold I. Koppel-man from said judgment order of August 28,1918, and the separate appeals of the other four respondents, were duly perfected in the trial court; that, the dismissal in this court of said joint appeal, No. 24,710, said appeal being a nullity, was ineffective to terminate said separate appeals; that,, although each separate appeal allowed by the circuit court was returnable to the October, 1918, term of this court, none of said appeals have been docketed in this court'by said respondents; and that, therefore, it is essential, in order to dispose of said separate appeals, that the West Disinfecting Company docket said appeals in this court and secure their dismissal. We agree with the contention. (Section 100, Practice Act; Green v. M’Connell, 1 Ill. (Beecher’s Breese) 236; Reynolds v. Perry, 11 Ill. 534; Cook v. Cook, 104 Ill. 98; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 402, 409; Swafford v. Rosenbloom, 189 Ill. 392, 393.) And, in our opinion, bach of said five separate appeals should be dismissed with damages as provided by section 101 of the Practice Act. We think that under the wording of the statute the awarding of damages is mandatory. (Chicago Federation of Musicians v. American Musicians’ Union, 234 Ill. 504.) Our discretion is limited to the amount of those damages, which shall be not less than $50,-nor more than $250.

Counsel for Harold I. Koppeiman, in their counter suggestions here filed, suggest that the five “short” transcripts of record filed with the motions to dismiss are unnecessarily voluminous. . We think they are. The transcripts are quite similar, and in the said Koppeiman transcript are included copies of (a) the original bill of complaint on which the injunction order (for violation of which the trial court entered the judgment in question) was founded; (b) the summons; (c) “the injunction order; (d) the petition for writ of sequestration and attachment for contempt, and affidavits in support thereof; (e) the order to show cause and for the writ of sequestration; (f) the answer of the particular respondent and affidavit in support thereof; (g) the judgment order of August 28, 1918; (h) the appeal bond and affidavits of the sureties thereon; (i) the order approving said bond; (j) the preecipe, containing directions to the clerk, and (k) the certificate of the clerk of the circuit court. This is not a proper compliaiice with the provisions of section 100 of the Practice Act. All that is necessary for the appellee to file, according to that section, is “the certificate of the clerk of the court, by which such appeal ivas granted, stating therein the title of the cause, the date, character and amount of the judgment, order or decree appealed from, against whom the same was rendered, the time when and the condition, if any, upon which the appeal was granted, the name of the party taking the appeal, and that the appeal was perfected as required by the order allowing the same. ’ ’ In the present eases all the essential facts, certified to by the clerk, are contained in the “short” transcripts, but there is also much unnecessary matter contained therein. And we do not think that Harold I. Koppelman or the other respondents should be severally taxed with the whole cost of the respective transcripts.

The appeal in the present ease, No. 24,990, will therefore, on motion of appellee, West Disinfecting Company, be dismissed for want of prosecution with $50 damages, and appellee may recover its costs expended in this court for the docketing of said appeal, and also costs not exceeding $5 for the transcript.

The same order may be entered in cases No. 24,991, 24,992, 24,993, and 24,994.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thomson

license: Public Domain

text:
    North Side Sash and Door Company, Appellee, v. Sigmund Hecht et al., on appeal of Wiley E. Hosier, Appellant.
    Gen. No. 24,695.
    1. Mechanics’ liens, § 1

      —statutory nature of right to enforce lien. The right to enforce a mechanic’s lien is created hy statute, and must be shown to come strictly within the terms of the statute.
    2. Mechanics’ liens, § 191 *-^when petition or bill by claimant may be amended. A petition or bill filed by a lien claimant in bringing suit against a purchaser of the property, which suit is brought within 4 months after the completion of the work or final delivery of material, may, by the express provision of the statute (Mechanics’ Liens Law, secs. 7, 11, 12, J. & A. Iff 7145, 7149, 7150), be subsequently amended, either before or after the expiration of the 4-month period.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed February 11, 1920.
    Rehearing denied February 21, 1920.
    Fyffe, Byner & Dale, for appellant.
    Edmund W. Froehlich, for appellee. .

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

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

This is an appeal from a decree allowing a mechanic’s lien to the appellee on premises owned hy the appellant who was a purchaser.

The appellee filed its bill February 19, 1916, alleging that it made its last delivery of material on February 27, 1915, and claiming a lien to the extent of $1,928.70. On September 16, 1916, appellee amended its bill alleging that the date of last delivery of material was October 27, 1915. The appellant acquired his title to the property April 15, 1915.

The appellant filed his answer to the bill of appellee on February 3, 1917, in which he denied that the appellee did any work or furnished any material in connection with the premises in question within 4 months prior to bringing suit and denied that the appellee made its last delivery of material on October 27, 1915, as alleged.'

The right which appellee seeks to enforce by this action, being created by statute, must be shown to come strictly within its terms.

Appellant claims that where it is sought to enforce a mechanic’s lien against a purchaser, not by filing a claim for lien with the clerk of the circuit court, but by bringing suit, that suit must be brought within 4 months after the last delivery of material by the claimant and the petition or bill filed in beginning such suit must strictly conform to the requirements of the statute, and such petition or bill cannot be amended after such period of 4 months has expired, citing May Purington & Bonner Brick Co. v. General Engineering Co., 180 Ill. 535, and other similar cases. The case referred to arose,under the former Mechanics’ Liens Statute under which one who claimed a lien was required to file with the clerk of the circuit court a just and true statement of account, “setting forth the times when such material was furnished * * The claimant filed a statement giving dates of the delivery of materials in 1892. He later filed a bill to enforce his lien alleging the filing of his statement as required by law and giving the dates of the delivery of materials as 1893.

The defendant filed a plea alleging that the claim or statement of account which the complainant had filed with the clerk, in fact gave the dates of delivery of materials as 1892. Thereupon complainant, by leave of court, amended the bill averring that the date “1892” had been inserted in the statement as filed, by mistake, and stating that, in fact, the materials were furnished in 1893. A demurrer tó the bill as amended was sustained, the court holding that the amendment of the bill could not cure the error in the statement filed with the circuit court clerk within the time prescribed by the statute. The court said: “The filing of a statement as prescribed by section 4, being made a condition precedent to bringing suit, * * * the claim for lien cannot be amended, after suit brought, so as to effect the suit.” In McDonald v. Rosengarten, 134 Ill. 126, the court said: “Any amendment (of the statement filed with the clerk) would have to be attached to the original, and filed within the time provided * * '* for the filing of the original.”

But in our opinion these and other like decisions are not authority for the contention made by appellant in this case. Under the former statute a lien claimant was required to file a statement of his claim for lien with the clerk of the circuit court within 4 months after the final delivery of material and that statement was required to set forth, among other things, the date of such delivery and, under the authorities cited, that statement of claim, in full compliance with the terms of the statute, had to be filed within the period prescribed by the statute and could not be amended after that period had expired. The question presented in the case at bar is whether, under the terms of the present statute, the petition or bill filed by the lien claimant in bringing suit can be amended after the period prescribed for bringing such suit has expired, the suit ■being against a purchaser who acquired his title to the property previous to the filing of the original bill or petition.

By the provisions of section 7 of the present Mechanics’ Liens La,w (J. & A. ft 7145), appellee could enforce its lien by bringing suit within 4 months after the final delivery of the extra material which was involved. By the provisions of section 11 (J. & A. ft 7149), it was necessary, if appellee followed that method, that its bill or petition contain “a brief statement of the contract * * * on which it is founded, the date when made, and when completed. * * *”

It is specifically provided in section 12 (J. & A. ft 7150) that “the court shall permit amendments to any part of the pleadings.” Therefore, if it is sought to enforce a mechanic’s lien by bringing suit within 4 months after the completion of the work or the final delivery of material (a method not provided for under the previous law), the petition or bill filed in so bringing suit may, by the express provisions of the statute, be subsequently amended.

Complainant has called our attention to the case of Hartray v. Chicago Rys. Co., 290 Ill. 85. That ease holds that the Injuries Act, which provides that every action brought by virtue of its terms, “shall be commenced within one year after” the death which is the basis of the action, prescribes 'a limitation on the liability created by the act, and in an action brought under the act the plaintiff must bring himself clearly within the prescribed requirements necessary to confer the right of action. The court cites as authority Goldstein v. Chicago City Ry. Co., 286 Ill. 297; Carlin v. Peerless Gas Light Co., 283 Ill. 142, and Sharp v. Sharp, 213 Ill. 332.

In the Goldstein case, supra, the death of plaintiff’s intestate occurred October 17, 1907, and the suit was commenced October 26,1908, more than one year after the death. The court held that it was error to refuse to allow the defendant to file a special plea alleging that the suit had not been commenced within one year after the death, even though other pleas not presenting such defense had previously been filed. In the Carlin case, supra, the accident causing the death of plaintiff’s intestate occurred April 9, 1903, and the suit was begun May 4, 1904, and the defendant filed a plea of the general issue and also a special plea setting up that the suit had not been brought by the plaintiff within a year after the death of her intestate. The court held that it was,error to sustain a demurrer interposed by the plaintiff to the special plea. In the Sharp case, supra, which was a bill in chancery to set aside a will, brought under the provisions of section 7 of the Statute of Wills (J. & A. 11548), wherein the time in which ■such a bill might be filed was limited to a period of one year from the time of the probate of the will, the bill was filed more than one year after the will was admitted to probate and a demurrer was interposed to the bill on that ground and the court affirmed a decree sustaining the demurrer and dismissing the bill.

In the Hartray case, supra, the declaration contained no allegation that the action was commenced within one year after the death there involved nor was the date of that death averred. The court held that a declaration filed in a case brought under the Injuries Act must allege, or state facts showing that, the action was brought within the time prescribed by the statute, and that the declaration there involved failing to do so, stated no cause of action and was therefore not cured by verdict.

We are of the opinion that the rule laid down in the Hartray case cannot be applied to the situation presented in the case at bar, as it might be if the Mechanics’ Liens Statute did nothing more than prescribe as a limitation on the liability it created, that the claimant begin suit within 4 months after the final delivery of material. This statute not only places that limitation on the liability it creates, but after specifying that the claimant shall state, in the bill or petition which may be filed, when the contract in question was completed, proceeds further to provide that “the court shall permit amendments to any part of the pleadings.” In other words, the very statute creating the liability in question, and limiting it as it does, itself says that amendment shall be permitted to the pleadings, which the statute requires shall show when the contract was completed. Therefore we hold that in a suit brought under this statute, the petition or bill filed in bringing suit may be amended under the provisions of the statute itself, and this may be done before or after the expiration of 4 months after the contract has been completed or the final delivery of material made, and if the petition or bill, as so amended, shows that the claimant has brought itself clearly within the prescribed requirements necessary to confer the right sought to be enforced under the statute, the relief sought may be granted, the defendant purchaser having acquired his rights in the property previous to the filing of the original bill.

The bill filed by the claimant in the case at bar, as amended, alleged a final delivery of material on October 27, 1915, which was within 4 months previous to the filing of the bill and the complainant thus brought itself strictly within the provisions of the statute creating and limiting the liability under which complainant sought to recover from the appellant.

In view of the fact that the Mechanics ’ Liens Statute itself provides that “the court shall permit amendments to any part of the pleadings,” we are of the opinion that where a claimant seeks to enforce a mechanic’s lien under that part of the present statute which permits that to be done by bringing suit within 4 months after the final delivery of material, the rights of the claimant under an amended petition or bill are to be determined just as they were under such a petition or bill filed" under the former statute requiring a claimant to enforce his lien, if at all, by filing a statement of his claim with the clerk of the circuit court within 4 months after the final delivery of material, but where no amendment of the statement of claim required by the statute was involved. The provision of the present statute as to amendment of pleadings in proceedings brought under the statute was a part of the statute previous to the amendment allowing a claimant to enforce his lien by bringing suit within 4 months. In construing the rights of a mechanic’s lien claimant, under 'an amended petition or bill brought under the former statute, our Supreme Court has held that the amended petition or bill disclosed a right in the claimant strictly within the statute, although it alleged a date of filing the petition with the clerk which was different from the date alleged in the original bill, or where no date at all was alleged in the original bill and the amended bill was filed after the time within which the statute provided the suit must be commenced. Treloar v. Hamilton, 225 Ill. 102.

On the issues of fact made up by the amended bill filed by appellee arid the answer thereto filed by appellant, the trial court made a finding for appellee and entered a decree accordingly.

We find no error in the record and therefore the' decree of the circuit court is affirmed.

Affirmed.


author: Mr. Justice O’Connor

text:
    Rosa C. Thompson, formerly Rosa C. Mentzer, Appellant, v. William A. Mentzer, Appellee.
    Gen. No. 24,681.
    1. Dtvobce, § 109

      —right to modify decree for alimony where complainant remarries. A decree for the payment of alimony entered by consent of the parties may be modified where the complainant remarries.
    2. Divorce, § 110*—when decree for alimony is not for gross sum. A decree requiring a defendant to pay a stipulated amount in cash, with further monthly payments until a minor son arrives at the age of 21 years, is not for a gross sum, and may be modified.

      3. Divorce, § 109

      —statutory provision for altering allowance of alimony. Section 18 of the Divorce Act (J. & A. If 4233) expressly authorizes the court upon application from time to time to make such alterations in the allowance of alimony as shall appear proper and reasonable.
    4. Divorce, § 114*—subsequent marriage of wife as authorizing husband’s release from payment of alimony. A subsequent marriage of the divorced wife authorizes the court upon petition to release her divorced husband from further payments of alimony.
    5. Divorce, § 114*-—retroactive effect of order releasing husband from monthly payment of alimony for remarriage of wife. An order for the payment of alimony may be modified by the court, whén it appears that the divorced wife has remarried and thus waived her right to further alimony, by discontinuing further monthly payments, and such order may take effect with reference to a monthly payment although the petition for release was not filed until 20 days after such payment was due.
    Appeal from the Superior Court of Cook county; the Hon. Henry Guerin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed February 11, 1920.
    Charles S. Knudson, for appellant.
    Pines & Newmann, for appellee.

      See Illinois Notes Digest, Vola. 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 O’Connor

delivered the opinion of the court.

By this appeal complainant seeks to reverse an order modifying a decree for the payment of alimony.

The record discloses that on April 12, 1916, complainant, Rosa C. Thompson, formerly Rosa C. Mentzer, obtained a decree of divorce from defendant, William A. Mentzer, on the ground of wilful desertion. By the decree complainant was given custody of their son, who was then 17 years old. The amount of the alimony to be paid by defendant and the time of payment were by consent of the parties decreed as follows: $5,000 cash, and $30 per month beginning on the 1st day of May, 1916, and the first of each month thereafter during the life of Joseph Arnold, father of complainant, and until the minor son should arrive at the age of 21 years. The alimony was all paid in accordance with the terms of the decree to and including the 1st day of April, 1918. On April 27, 1918, complainant remarried and lived thereafter with her second husband. The following month, May, 20, 1918, defendant filed his petition asking that the decree for the payment of alimony be modified and that he be released from further payment. At that time complainant’s father was still living and the son of the parties was not then 21 years old. Subsequent to the decree the minor son, by consent of the parties, left complainant and lived with defendant. An answer was filed and "after hearing an order was "entered modifying the decree releasing defendant from further payments of alimony.

It is insisted that since the provision of the decree for the payment of alimony was entered by consent of the parties, the court was without power to modify it over complainant’s objection. In support of this the cases of Buck v. Buck, 60 Ill. 241; Storey v. Storey, 125 Ill. 608, and Miller v. Miller, 234 Ill. 16, are cited. In the Buck case, supra, the defendant sought to reverse a decree for the payment of alimony, the amount of which had been mutually agreed upon. There was no attempt to show that the conditión of the parties had changed since the entry- of the decree, but the appeal was from the decree itself. Manifestly the defendant there was not entitled to have the decree reversed, the provisions of which he had consented to. The question decided in the Storey case, was whether, after the death of a former husband, a divorced wife was entitled to receive alimony from his estate. The court held that under a proper construction of the decree she was entitled to the alimony. The Miller case was a partition proceeding which involved collaterally a consent decree fixing the allowance for separate maintenance. We think it clear that none of the authorities cited are applicable to the facts in the instant case.

It is further urged that the modification of the decree was wrong for the reason that the alimony awarded was for a gross sum and that the court was without jurisdiction to modify it at a subsequent term. We think it clear that since the decree provided for monthly payments it cannot be said that the alimony was for a gross sum. Section 18 of the Divorce Act (J. & A. jf 4233) expressly authorizes the court upon application from time to time to make such alterations in the allowance of alimony as shall appear proper and reasonable. It has been repeatedly held that a subsequent marriage by the divorced wife authorizes the court upon petition to release her divorced husband from further payments of alimony. Stillman v. Stillman, 99 Ill. 196; Morgan v. Lowman, 80 Ill. App. 557. By remarrying, complainant voluntarily waived her right to alimony after the date of her remarriage. Morgan v. Lowman, supra; Stillman v. Stillman, supra. The court was, therefore, justified in modifying the decree and this, too, without requiring the payment of the instalment due for May, although the petition asking for the release from further payment was not filed until 20 days thereafter. Barclay v. Barclay, 184 Ill. 375.

The order of the superior court of Cook county is affirmed.

Affirmed.


text:
    Paul K. Brimie, Appellee, v. Lillian Benson, Executrix, Appellant.
    Gen. No. 24,692.
    1. Mobtoaoes, g 22

      —conveyance as security as conveyance in nature of mortgage. A conveyance made as security is properly held to be a conveyance in the nature of a mortgage (Rev. St. ch. 95, sec.' 12, J. & A. If 7587), and it is not necessary that the consideration move directly from the grantor to the grantee.
    2. Damages, § 66*—measure of damages when property held as security is conveyed in violation of agreement. Where property held as security is conveyed by a defendant in violation of her agreement, she is liable for the full value of the property as of the date of the sale unless such property is sold for more than it is worth, in which case the defendant is liable according to the amount received.
    3. Mobtgagks, § 34*—what relief may be granted on bill praying that absolute deed be decreed a mortgage, and for general relief. Where a bill prays that an absolute deed of conveyance be decreed a mortgage, for an accounting, and that property received by the defendant be conveyed to complainant, it appearing that such defendant conveyed property held as security in violation of her agreement, and the bill also contains a prayer for general relief, the court may grant such relief under the general prayer as the allegations and proof demand, even though the prayer for specific relief is denied.
    4. Intebest, § 69*—when allowed in equity. In equity, interest is allowed because of equitable considerations and is given or withheld as under all the circumstances of the case seems equitable and just
    5. Account, g 54*—when defendant not chargeable with interest prior to filing of bill. Where property was conveyed to a defendant as security and held by her for 5 years, without any demand for reconveyance, and the defendant sold such property in violation of her agreement, resulting in a suit for an accounting which was brought 2 years later, it would not be equitable or just to charge such defendant with interest prior to the filing of the bill, which might be considered a demand.
    Appeal from the Circuit Court of Cook county; the Hon. Mebbitt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Decree modified and affirmed.
    Opinion filed February 11, 1920.
    Thompson, Tyrrell & Chambers, for appellant.
    Charles C. Spencer, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Paul K. Brimie filed his bill of complaint against Olga Rohne and Mary Benson, praying that certain deeds of conveyance, absolute on their face, be decreed to be mortgages; that an accounting be had between him and the defendant Benson; that she be decreed to hold certain real estate in trust for complainant; that she convey it to him, and for general relief. Olga Rohne was defaulted. Mary Benson filed a plea which was held bad, and the defendant having elected to stand by it, the bill was taken as confessed. The plea averred in substance that complainant was not indebted to her on account of moneys she had advanced for complainant’s brother, and that complainant did not promise in writing, nor was there any note or memorandum in writing signed by complainant or any other person by him duly authorized, that he would pay his brother’s indebtedness. The case was heard in open court and a decree entered finding the deeds to be mortgages, and on an accounting it was found that there was due to complainant from defendant $2,029.81, to reverse which defendant, Benson, prosecutes this appeal.

There is no certificate of the evidence in the record.

The bill alleged and the decree found that on July 8, 1909, complainant was the owner in fee simple of a certain lot; that on that date he conveyed it by quitclaim deed to Olga Rohne; that while the conveyance was absolute in terms it was intended to be only security for $150 which, complainant owed Rohne; that the deed was delivered and recorded; that afterwards, November 9, 1909, complainant gave other security to Rohne, and on that date at the request and direction of complainant, Rohne conveyed the property to Mary Benson by quitclaim deed which was delivered and afterwards recorded; that this conveyance, though absolute in terms, was intended only as security to secure Benson from any loss by reason of her having become surety for complainant’s brother in the sum of $800; that complainant’s brother afterwards paid this indebtedness; that afterwards complainant agreed with defendant Benson that if she would become surety for complainant’s brother for another indebtedness of $500, she might continue to hold the real estate as security; that afterwards Mary Benson became surety for complainant’s brother and was compelled to pay $400 as such surety; that she also paid a further sum of $100 at complainant’s request, and paid an incumbrance on the property and other taxes and assessments ; that on July 7, 1914, Mary Benson, in violation of her agreement with the complainant and without his knowledge or consent, conveyed the premises by warranty deed to Malvina Deutsche; that the latter was a bona fide purchaser of the property. The decree further found the amount due Mary Benson for payments made by her, with interest thereon to the date of the conveyance by her, viz.: July 7, 1914, was $902.19. It was also found that the fair cash market value of the real estate at the time it was conveyed by Mary Benson was $2,600; that'from this the defendant Benson was entitled to deduct the $902.19, leaving a balance due from her to complainant of $1,697.81, on which the court allowed interest at 5 per cent from July 7,1914, to the entry of the decree, June 27,1918.

It is said that a deed absolute on its face cannot be decreed a mortgage unless there is a debt due from the grantor to the grantee, and since there is no allega.tion in the bill and no finding in the decree that complainant ever promised to pay defendant, the deeds cannot be held to be mortgages. In Thackaberry v. Johnson, 228 Ill. 149, it was held that it was not necessary that the consideration move from the grantor to the grantee to warrant a foreclosure of the mortgage. In that case Johnson loaned $2,400 to Olson, the payment of which .was secured by a mortgage or trust deed from Thackaberry on the latter’s property. On a bill filed to foreclose the mortgage, the court said (p. 154): “It is said by the appellants that there was no consideration moving from appellee to Milton L. Thackaberry, which will support said second trust deed upon the Cook county property so far as it secures the payment of the $2,400 note of Olson. The consideration for the trust deed was the loan of the $2,400 by the appellee to William F. Olson. It was not necessary that a consideration for the trust deed move directly from appellee to Milton L. Thackaberry. ’ ’ Since it is alleged in the bill and found by the decree that the conveyance was made as security, the court properly held the conveyance to be in the nature of a mortgage. Eev. St. ch. 95, sec. 12 (J. & A. 7587).

Complaint is also made that the court erred in decreeing that defendant was liable for the market value of the property at the time of the sale by her, and that if liable at all, it should be only for the amount she received for the property when she sold it. Since the decree found that the property was conveyed by defendant in violation of her agreement, the law is that she should be held for the full value of the property as of the date of the sale unless it appears that she sold it for more, in which case the amount of the sale should govern. Gibbs v. Meserve, 12 Ill. App. 613; Enos v. Sutherland, 11 Mich. 538.

It is further urged that- the decree is wrong as it is not in accordance with the prayer of the bill; th.at the bill prayed that an accounting be had and that defendant be decreed to convey to complainant the property she received in exchange for her property, after allowing the amount due her. We think it clear that the relief granted does not follow the prayer of the bill. But there was also a prayer for general relief, and in such case the court may grant such relief under the general prayer as the allegations and proof demand, though the prayer for specific relief be denied. Casstevens v. Casstevens, 227 Ill. 547.

It is finally argued that it was error to charge defendant with interest on the market value of the property sold by her from the date of the sale for the reason that the amount due on the accounting was uncertain, and that the statute provides that interest may be allowed on the amount found due on an account from the time the balance is struck, and that the balance was not known until the evidence was heard. On the other side, it is argued that the allowance of interest was proper under the authority of Smyth v. Stoddard, 203 Ill. 424. We think the position taken by both parties is unsound as applied to the facts in the instant case. In equity, interest is allowed because of equitable considerations and is given or withheld as under all the circumstances of the case seems equitable and just. Golden v. Cervenka, 278 Ill. 409; Keady v. White, 168 Ill. 76. In the instant case the property was conveyed to the defendant November 9, 1909. She held it until July 17, 1914, nearly 5 years. During that time she became surety for complainant’s brother on two different occasions and the last time was required to pay $400 for him. She removed an incumbrance from the property, paid taxes and assessments on it, and another time, at complainant’s request, paid $100 for his brother, for all of which she received no consideration. So far as the record shows, no demand was ever made on her to reconvey the property or to pay a fair consideration for it less what was due her. In these circumstances and in view of all the equities of the case, we think it would be neither equitable or just to charge her with interest prior to the filing of the bill, which may be considered a demand. Whittemore v. People, 227 Ill. 453. The conveyance was made by defendant July 7, 1914, and the bill was not filed until July 8,1916, two years thereafter. During this period defendant was charged 5 per cent interest on $1,697.81, which amounts to $169.78. This amount will, therefore, be deducted from the amount due by the decree, viz., $2,029.81, leaving a balance due of $1,860.03. The decree will be modified to this extent and as modified it is affirmed.

One-half of the costs in this court is taxed to each of the parties.

Decree modified and affirmed.


author: Mr. Justice Taylor Mr. Presiding Justice Thomson

text:
    The Dandyline Company, Appellee, v. Harry Linsk, trading as H. Linsk & Company, Appellant.
    Gen. No. 24,582.
    1. Sales, § 19

      —when order not binding contract until buyer approved sample. A written instrument consisting of an order for certain dresses stating the price, but describing the dresses by lot number with colors “to follow,” held not a binding contract until the buyer had approved a sample made by the seller from a sample furnished by the buyer, especially as a letter sent by the buyer 3 days later advised as to the sending of the samples and confirmed the theory that the first instrument was a mere order which would change into a binding contract when the samples made by the seller were approved by the buyer.
    2. Sales, § 376*—when allowance of damages for breach of order as a xohole is error. Under a contract for the sale of four different lots of dresses, where the seller was to submit samples from a sample furnished by the buyer, for his approval, the seller was liable for damages for failure to perform as to two lots of dresses, concerning which there was a complete contract, but there being no contract as to the other two lots, there could be no breach or liability foi* the failure to perform, and the allowance of damages for breach of the order as to all four different lots of dresses was error.
    3. Sales, § 386

      —when appeal from judgment in action by buyer presents question of fact. In an action for breach of a contract to manufacture and deliver a certain quantity of dresses, where the facts proved did not show the existence of a contract for the sale of the quantity of dresses as claimed by the plaintiff, the court on appeal was entitled to determine from the record the extent of the breach of contract, and the appeal did not present a mere question of law but one of fact.
    Thomson, P. J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Edmtjnd K. Jabeoki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed February 11, 1920.
    Wilkerson, Cassels & Potter, for appellant.
    Bosenthal, Hamill & Worm see, for appellee; Charles H. Hamill and Harry Markheim, of counsel.

      See Illinois Notes Digest, Vois, XI tp XV, ¡vid Cumulative Quarterly, saíne {.oyic and section number.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Claiming that the defendant had failed to manufacture and deliver a certain quantity, of dresses pursuant to an alleged written contract, the plaintiff brought suit and obtained a judgment against the defendant in the sum of $2,970.

The plaintiff, a corporation, located in Chicago, was in the business of manufacturing and selling children’s dresses. The defendant is a resident of Philadelphia engaged in the manufacture of children’s and misses’ dresses. Prior to the matters here involved the parties had had some mutual business dealings. On November 10, 1917, the defendant and one Lewis, a Chicago representative, met with Myres and Pincus, officers of the plaintiff company, at the place of business of the latter company in Chicago. As a result of their negotiations on that occasion there was drawn up and signed by both parties the following instrument:

‘ ‘ Bought of Harry Linsk & Co. How Ship......

Town Philadelphia, Broad & When Dec., Jan.

Wallace Sts. & Feb.

State Pa. Salesman

T.ot No. Price Quantity Color

649 $13.00 100 doz. Asst. to follow

605/648 12.50 . 100 dz. 77 77 77

642/636 9.50 100 dz. 77 77 77

607/643 9.50 100 dz. 77 77 77

2% 10 day. 60 days dating'

3% 10 days

(Signed) Magnus Myres V. P.

O.K. H.L.”

The numbers 649, 605, 642 and 607 represented defendant’s lots or styles of dresses. The intermediate figures, 648, 636 and 643, referred to similar styles with different colors.

The phrase “Asst, to follow” meant that the assortment of models and sizes would be detailed later by the plaintiff to the defendant. On November 13, 1917, the plaintiff wrote to the defendant in part as follows:

“Confirming order which we placed with you for 400 dozen dresses, wish to state that we are sending you by express samples of these dresses.

“You will note that No. 607 is made in plaid and also comes in plain color under No. 643.

“Yon will note that No. 642 comes in stripes but is also made in plain color under No. 636.

“You will note that No. 605 comes in a plain and stripe combination and also comes in plain and plaid combination under No. 648.

“No. 649 is only as per sample with assorted yellow stripes.

“As soon as these samples are received, will you kindly make up samples which you are to submit, together with swatch of the materials to be furnished, and we will then O. K. same and return to you, together with list showing sizes and colors desired? Inasmuch as we are in special rush for these dresses, we would ask you to kindly make special effort and rush samples to us at once. ’ ’

On November 24, 1917, the defendant wrote the plaintiff in part as follows:

“We have today expressed to you style 649, 605 and 642, with swatches attached showing the .different colors. Style 636 we did not duplicate as yet as we haven’t the desirable cloth on hand. Upon receipt of these samples, please send us your sizes so that we can go ahead, while our piece goods stock is changing daily and we therefore cannot afford to wait too long.”

On November 28, 1917, the plaintiff wrote the defendant setting forth in detail under each lot number the materials, colors, sizes and quantities of each size desired. On December 1, 1917, the plaintiff acknowledged receipt of certain samples from the defendant stating, among other thing's, that Nos. 605, 636 and 642 were satisfactory; also stating that they had sent word in regard to No. 649 and that No. 605 would be satisfactory if made with a 4-inch hem. That letter further stated that 636 and 642 were satisfactory with the exception of the hem which should be 4 inches instead of 3, and that the percale collar should be changed to a Eepp collar. In that letter occurs the following language: “Inasmuch as these dresses are now satisfactory with the changes specified above, we trust you will put them in work at once and rush No. 605 to us by express as fast as it is ready.” In that letter, as to No. 649, a criticism was made of the stripes asking that other stripes be submitted for plaintiff’s consideration, and further that the hem was 3 inches instead of 4 and the skirt was 61 inches in width instead of 68, On December'3,-1917, the defendant wrote to the plaintiff stating that they could not change the material of No. 605 but would make the change in the hem, also change 636 and 642 as to the 4-incli hem. That letter stated that the percale collar was_ put on because it appeared on the plaintiff’s original sample and that they would change it to Repp. The following language is then used: “We will wait with these numbers until we receive the original corrected sample.” As to 605 the letter states: “As per your request, we will immediately put style 605 in work.” It was also stated in the same letter that as to 649 they could not give a different stripe from that which they had already submitted.

On December 5, 1917, the plaintiff wrote to the defendant: “We are in receipt of your valued favor of the 3rd and wish to state we wired you that it would be satisfactory to have you make No. 605.and 636 and 642 as per your letter and this we now beg to confirm. Make 605 in the Berwick stripe as per your sample. Make No. 636 and 642 with Repp collar and as per the corrected sample which we believe you have received by this time. * * In reference to No. 649, we regret to state we cannot use same in the material as per your sample.” On December 18, 1917, defendant wrote the plaintiff that they could not get the material promptly from the mills according to sample of lot 607 and that they would consider that order as canceled unless the plaintiff could wait for a late delivery.

On December 26,1917, the plaintiff received the first shipment of 44 dozen dresses and wrote to the defendant that those that purported to belong to No. 605, that is 25 dozen, were unsatisfactory and asking wha.t should be done with them, also stating that those that pertained to No. 642 the plaintiff will keep. That letter also asks when No. 607 would be shipped; it also states that sample of No. 649 “which you were going to make up and submit to us for O. K. has not as yet been received.”

Between December 18 and December 26,1917, Myres had a conversation with Linsk, the defendant company, in Philadelphia, and at that conversation Linsk said •that Nos. 605 and 642 were being made np and would be shipped very soon, but as to Nos. 607 and 649, he was waiting for ginghams from the mills in order to make the dresses in suitable fabrics; that they walked through the factory and Myres pointed out some goods and asked Linsk to submit that in dresses of No. 649; that Linsk said he would and would send a sample of the dress made in that stripe.

On December 29, 1917, the defendant wrote to the plaintiff stating that the dresses sent according to No. 605 although made of piece goods of lighter shade, it was the only thing they could get from the mills'; that, however, they would make another attempt to obtain a lighter shade for No. 605 and as soon as the dresses of No. 605 were returned he would credit the plaintiff; that as regards style No. 649, that he promised to make up and submit sample, he finds that they have a very small amount of it in stock and has written to the mill to ask how soon they may expect delivery.

On January 2,1918, the plaintiff wrote the defendant stating that the dresses of style No. 605 were being returned and that it would wait for the sample of style No. 649; that it insists on the defendant submitting sample of style No. 607 at once; that it would like to know when the dresses made up as per sample of Nos. 605 and 642 and 636 will be delivered.

On January 5,1918, the defendant wrote the plaintiff that as the mill advises him that it will be unable to send the piece goods he will be unable to deliver the merchandise Nos. 642 and 636. “You state that your order was taken in good faith. We agree with you, but the same was also taken subject to our getting- the materials from the mills. Our orders were also placed in good faith, but can do ■ nothing, in receiving no deliveries.”

On January 9, 1918, the plaintiff wrote to the defendant that it was willing to allow the defendant' to make substitutions where necessary providing they were of materials equally as good as the sample submitted to him. Myres testified that the samples were exhibited to Linsk before the order was signed. That the course of the market for gingham from November to January was upward; that no goods were delivered under No. 649; that the plaintiff turned back 25 dozen dresses of No. 605 on the ground that they were of inferior material and of poor quality; that the plaintiff accepted 19 dozen of No. 642; that no other goods were received.

On cross-examination Myres stated that the plaintiff submitted a sample of No. 649, and then the defendant submitted its copy of No. 649, but it was not considered satisfactory by the plaintiff; that the same was true of sample No. 605, but the plaintiff accepted that one; that they submitted sample No. 642 to the defendant and the defendant submitted its sample of No. 642, and that was accepted by the plaintiff-; that no sample of No. 607 was submitted; that they received 19 dozen of style No. 642 and kept them. Myres stated further on cross-examination that on December 20 the defendant told him, when in Philadelphia, that material for style No. 607 could not be secured from the mills before May, and that he, Myres, then took that sample away. Linsk testified that he talked with Myres and told him it would be impossible to get the exact pattern but that he could get something near and Myres said that would be satisfactory and submitted samples; that the samples were forwarded to Philadelphia; that the plaintiff did not approve of the sample on No. 649 and no goods were shipped on it; that the plaintiff forwarded samples on lots 649, 605 and 642; that 25 dozen were shipped on 605 and the defendant made up the other 75 dozen and was ready and willing to ship the balance; that the plaintiff returned the 25 dozen and the defendant gave him credit therefor; that as to style No. 642, the defendant submitted a sample which had been approved and 19 dozen were shipped; that they had no cloth for the balance; that in talking with Myres in Philadelphia about December 18, he told him that he would not be able to make up the balance of lot No. 642 because he did not have the cloth; that Myres said he still wished to have lot No. 649; that he told Myres that he had not approved sample No. 649; that he showed him the garment again and Myres said he could not use it; that Myres took samples and said he would try to buy it somewhere else; that he also took away samples of Nos. 642 and 607; that he showed him cloth in regard to No. 649 and that Myres said .it could not be approved as there was not enough gold in it and the defendant told him he had no other cloth to give him. That he made up samples for them and submitted Nos. 605, 642 and 649 and they accepted Nos. 605 and 642 and rejected 649 because they said the pattern did not answer the garment; that the sample defendant submitted was better than that the plaintiff submitted; that about December 18 in a conversation with Myres he told Myres that they had about finished the 100 dozen of No. 605, and about the same of No. 642; that he told Myres the plaintiff had not passed the cloth for No. 649; that they said it was not yellow enough; that Myres said he could not use defendant’s sample of lot No. 649; that Myres said that the defendant had not submitted a sample of No. 607; that the defendant told him he could not obtain the cloth; that Myres said he would have to take the samples back and try to get the merchandise elsewhere.'

The cause was tried before the court without a jury, and a judgment entered in favor of the plaintiff and against the defendant in the sum of $2,970. From that judgment this appeal is taken.

It is the contention of the defendant that the evidence does not justify the judgment. It is the theory of the defendant that the instrument of November 10, 1917, though signed by the plaintiff and “0. K.’d” by a representative of the defendant, did not in itself contain all the essential terms of a completed contract, but was some evidence, to be taken in conjunction with certain correspondence and conduct of the parties; and that, when so considered it failed to show a completed contract as regards certain lot numbers mentioned in the instrument of November 10, 1917. On the other hand, it is claimed by the plaintiff that the written instrument of November 10,1917, together with the samples concurrently submitted, constituted a valid and binding contract for the sale and delivery of all four styles of dresses, that is, the full 400 dozen.

We are of the opinion that the instrument of November 10,1917, taken in conjunction with the correspondence and the testimony, shows conclusively that it was the intention of the parties that there should be no binding contract concerning any one of the four styles of dresses until the plaintiff had approved a sample made by the defendant from a sample furnished by the plaintiff. And as to such a situation the law is well expressed in Pennsylvania Lubricating Co. v. Wilhelm, 255 Pa. St. 390. In that case the contract was evidenced by a letter from the defendant, the seller, to the plaintiff purporting to confirm a sale of two tank cars of grease “which, in accordance with agreement, is subject to approval of type sample drawn from bulk, which will be submitted immediately upon receipt from the plant involved.” The defendant did not deliver any grease or submit any sample of it but subsequently notified the plaintiff that he would not perform. The court said: ‘ ‘ The contract was lacking in one essential particular, the minds of the parties had not met on the quality of the commodity, as that was to be determined by sample thereafter to be submitted for plaintiff’s approval. Until such approval there was no completed agreement.” And further, on the subject of liability and damages, that court said: “If a contract be invalid because incomplete it is not made valid by the neglect or refusal of one party thereto to do that which would enable the other party at his option to render it complete. And if the contract be still invalid there is no basis for a recovery of damages because of defendant’s neglect to furnish the sample in question.”

In the letter of November 13, 1917, written by the plaintiff about 3 days after the signing of the instrument of November 10,1917, the plaintiff wrote: “ Confirming order which we placed with you for 400 dozen dresses, wish to state that we are sending you by express samples of these dresses. * * * As soon as -these samples are received, will you kindly make up samples which you are to submit, together with swatch of the materials to be furnished, and we will then O. K. same and return to you, together with lists showing sizes and colors desired * * * rush samples to us at once. ’ ’ That letter alone, taken in conjunction with the instrument of November 10, 1917, practically demonstrates that on November 13, 1917, there- was merely an order outstanding on the part of the plaintiff which could ripen intq a mutually binding contract only when the samples to be made by the defendant had been made and sent to the plaintiff and approved. The correspondence and the testimony of Myres all tend to show that it was the understanding of both parties that neither should be bound until the plaintiff had approved samples made by the defendant.

The evidence shows that as to lot No. 605, the sample made by the defendant was approved by the plaintiff and. that 25 dozen were shipped and that the remaining 75 dozen of that lot number the defendant made and had ready to ship, but as the plaintiff objected to the 25 dozen that were shipped, that they were unsatisfactory, the defendant wrote that he would take them back and give the plaintiff credit for them. Of course, as the minds of the parties had both met as to lot No. 605, the defendant would be liable for whatever damages the plaintiff suffered by reason of the defendant’s breach.

As to lot No. 642: The plaintiff on December 1, 1917, acknowledged receipt of the sample from the defendant and admitted it was satisfactory with the exception that the hem should be 4 inches instead of 3 and that the percale collar should be changed to a Repp. Further, the sample of that lot, made by the defendant, was approved by the plaintiff and subsequently 19 dozen were shipped. The balance of that order of 100 dozen was not shipped and Myres testified that the defendant told him in a conversation with him on December 18, 1917, that he would not be able to make up the balance because he did not have the cloth. Of course, as to that order, lot 642, there was a completed contract and inasmuch as the defendant failed to perform his part of it he became liable for whatever damages the plaintiff had suffered.

As to lot 649: The plaintiff wrote on Nov. 13, 1917, “We are in need of some Nos. 649 and 605 first, and would like to have you make up these samples first.” Oil November 24, 1917, the defendant wrote: “We have today expressed to you style 649, 605 and 642, with swatches attached showing the different colors. * * * Upon receipt of these samples, please send us your sizes so that we can go ahead,” etc. On November 28, 1917, the plaintiff wrote stating that the defendant’s Samples had not yet' been received but in order not to have any delay “We are enclosing herewith our order and as soon as samples are received, we will wire you an O. K. on it. ’ ’ On December 1,1917, the plaintiff wrote expressing its satisfaction as to the samples of 605, 636 and 642, but that the sample of 649 .was unsatisfactory “that the stripe which you have substituted on this dress is not at all satisfactory, and we would like to have you submit other stripes to us at once. ’ ’ Also, that it should have a 4-inoh hem instead of a 3-inch, and the skirt should be 68 inches instead of 61. On December 3, 1917, the defendant wrote the plaintiff as to style 649, that he regretted he could not give a different stripe from' that submitted : “We will not go ahead with these graments until we hear from you. If you do not want to lose any time, we would suggest you wire us immediately upon receipt of this letter.” On December 5,1917, the plaintiff wrote the defendant in reference to No. 649, “regret to state that we cannot use same in the material as per your sample. ’ ’ Myres testified that between December 18 and 26, 1917, he was in Philadelphia and saw the defendant, and while going through the defendant’s factory they discussed a quantity of striped goods and that he asked the defendant if he would make that up, referring to a certain quantity of striped goods for lot No. 649, and that the defendant said all right, and that he would send a sample of the dress to the plaintiff. Myres .testified further: “I went away from Philadelphia believing that the sample was going to be sent out to Chicago for our O.K.” On December 26, 1917, the plaintiff wrote to the defendant: “Sample of No. 649 which you were going to make up and submit to us for O. K. has not as yet been received. ’ ’ On December 29,1917, the defendant wrote the plaintiff that he found that they only had a small amount of the goods similar to that which he had promised to submit a sample of; that he had written to the ■mill to see how soon he could get more of that material.On January 2, 1918, the plaintiff wrote the defendant: “We note what you have to say in reference to style 649 and wish to state that we will wait a few days longer for a sample, inasmuch as we shall expect by that time you will have received an answer from the mill and will be in a position to give us this information.” Obviously the minds of the parties never met concerning lot No. 649; no sample submitted by the defendant to the plaintiff ever received the approval of the latter. Being no contract concerning lot No. 649, there was no breach of liability.

As to lot No. 607: On December 5, 1917, the plaintiff wrote the defendant: “We have not as yet received sample and swatch for No. 607. Kindly do your best to submit this sample to us at once so that we can confirm order on same.” And on December 13, 1917, the plaintiff wrote: “How about 607 sampleí Let us hear about this number by return mail. ’ ’ On December 18,1917, the defendant wrote the plaintiff that he could not get the material from the mill for style No. 607 before May. “If you cannot wait for this late delivery, will consider same canceled upon receipt of your advice.” On December 26, 1917, the plaintiff wrote the defendant: “In regard to dress No. 607 which Mr. Myres informs us you will not be able to deliver for some time, wish to state that it is of utmost importance to us that this dress also be shipped at once as we are holding our orders awaiting your dresses. ” No sample of No. 607 was ever furnished by the defendant, and when Myres saw the defendant in Philadelphia he took with him the original sample of 607, but after the defendant had stated that material for that style could not be secured from the mills before May, he took the sample away with him. Evidently the minds of the parties did not meet in regard to style No. 607; and no sample furnished by the defendant was ever approved by the plaintiff, the result being that, as to lot No. 607, there was no consummated contract and, therefore, there could be neither breach nor liability.

It is contended by counsel for the plaintiff that on this appeal only a question of law is involved. With that we are unable to agree. The facts proven do not show that the contract declared upon, that is to sell the plaintiff 400 dozen dresses, ever existed, and such being the case, we.are then both entitled and bound to determine from the record as it appears here whether the evidence which was actually admitted sufficiently tended to show a breach of a contract to sell the plaintiff a certain 200 dozen dresses and so justify the judgment which was actually rendered. Many witnesses were called to prove the damages claimed to have been suffered by the plaintiff but obviously the evidence on that subject was all put in on the theory of a breach of a.contract to sell a certain 400 dozen dresses, and by no safe analysis can that evidence be said to show that the plaintiff was damaged to the extent of the judgment by reason of a breach of a contract as to 200 dozen dresses. The judgment was not justified by the evidence. The judgment is, therefore, reversed.

Reversed.

Mr. Presiding Justice Thomson

dissenting: I am unable to concur in the foregoing decision. There is a direct conflict in our decisions in Illinois on the question of the necessity of having the trial court pass upon propositions of law in order to preserve issues of law for review in this court, in a case which has been tried by the court below without a jury. On the one hand we have the following cases holding that the Appellate Court in reviewing such a case may pass upon such issues of law as may be involved even though no propositions of law were submitted to the trial court: West Chicago Park Com’rs v. Kincade, 64 Ill. App. 113; City of Chicago v. Bartels, 146 Ill. App. 180; United States Brewing Co. v. Wolf, 181 Ill. App. 509; Lanski v. Chicago & N. W. Ry. Co., 181 Ill. App. 565; Consolidated Ribbon & Carbon Co. v. Crane Co., 183 Ill. App. 392, and Educational Aid Society v. Bush Temple Conservatory, 187 Ill. App. 250. The basis for these decisions is the, opinion of our Supreme Court in Bradish v. Yocum, 130 Ill. 386, in which the court held in effect that in order to preserve issues of law, for review in the Supreme Court in a ease coming to that court through the Appellate Court, it was necessary that propositions of law be presented to and passed upon by the trial court,- but that this was not necessary in cases coming to the Supreme Court direct from the trial court.

On the other hand, we have the following cases holding that where the case is heard in the trial court without a jury and the record shows no objections to the rulings of the trial court upon the evidence and no motions made during the progress of the trial calling for rulings on the questions of law, and showing further that no propositions of law were submitted to the court, no issues of law are presented to this court for review: Dominion Co. v. Atwood, 114 Ill. App. 447; Goodheart v. Hall, 145 Ill. App. 604; Bercaw v. Sims, 164 Ill. App. 241; People v. Commissioners of Highways, 188 Ill. App. 56; Flodin v. W. H. Lutes Co., 191 Ill. App. 195; Overland Motor Co. v. Tennant, 195 Ill. App. 6; Warren Sales Co. v. Shaw, 195 Ill. App. 211. The only one of these cases that appears to have been considered in any way in the Supreme Court is the Flodin case. In that case the Supreme Court denied a writ of certiorari.

Although there is no decision of the Supreme Court following that of Bradish v. Yocum, supra, which may be said to be directly on the point, there are subsequent decisions of that court which seem to indicate clearly that the Supreme Court has departed from the rule laid down in that case. In the case of West Chicago Park Com’rs v. Metropolitan West Side El. R. Co., 182 Ill. 246, which was an appeal from the county court of Cook county direct to the Supreme Court, the appellant urged certain alleged errors of the trial court on questions of law. No propositions of law had been submitted to the trial court and the Supreme Court held that in view of that fact none of the issues of law which had been argued were before it for review saying: “The only question open for our consideration is whether the judgment is so manifestly against the weight of the evidence that we should hold that the court erred in its findings of fact.” In the case of Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576, being an appeal from the county court of Cook county direct to the Supreme Court, the court in effect followed the same rule, when it held ihat the trial court had been in error in refusing to pass upon propositions of law which had been submitted and said: ‘ The purpose to be subserved by propositions of law is to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding. In some instances it is only through the medium of such propositions that the record can be made to show the views of the court as to the principles of law applicable to the facts of the case. In such instances the refusal to consider and pass upon the propositions would constitute fatal error.” The court proceeded to hold in that case that the propositions of law which had been submitted to the trial court and which it had refused to pass upon did not call for any ruling upon any question of law except such as the court had already passed upon in its rulings as to the admissibility of the testimony, and therefore the court held that the refusal to pass upon the propositions of law submitted was harmless error and, the issues of law involved being preserved in the record by the rulings which the trial court ha.d made, the Supreme Court proceeded to pass upon them. In Sullivan v. Atchison, T. & S. F. Ry. Co., 262 Ill. 317, which was a writ of- error to the circuit court of Will county, the bill of exceptions failed to show any exceptions to the judgment or any rulings of the court on the evidence, nor did it recite that any propositions had been submitted to the trial court or ruled upon by it, and again the Supreme Court held that no question of law was preserved for review.

Where the case comes to this court from the trial court for review, this court may, generally speaking, pass upon the questions preserved in the record, both of law and of fact. As to all questions of fact, the judgment of this court is final but as to all questions of law, the defeated party has the right to a further review in the Supreme Court provided the case is such as to come within the jurisdiction of that court, but in such cases the right of the defeated party to a review of the questions of law involved will come to naught if this court reviews the case and passes upon it, where the record discloses no propositions of law passed upon by the trial court, and the legal issues involved were not preserved by rulings upon the evidence or some appropriate motion. If this court holds that it may review issues of law where they have not been preserved by propositions of law, or otherwise, the court might well be of the opinion that no error had been committed by the trial court on the facts, but it might base a reversal of the judgment on some questions of law, and although the case might be such as to come within the jurisdiction of the Supreme Court, the defeated party in the Appellate Court would be powerless to have its decision reviewed.

In the trial of a case with a jury, it is incumbent upon the trial judge to announce the principles of law which in its judgment apply to the issues involved, through its instructions to the jury and on appeal the issues of fact and the issues of law involving the substantive propositions on which the trial court based its conduct in the case are clearly preserved and defined for appropriate review. The only method by which the same result can be obtained in cases where the jury has been waived, and the trial court passes upon the facts as well as the law, is by means of propositions of law. It seems to me that both on the present state of the decisions of our courts and on reason it should be held that where issues of law are not preserved by appropriate motion or by rulings on the evidence and no propositions of law have been presented to the trial court, nor passed upon by it, such issues of law cannot be considered on the record in this court.

That the record in the case at bar presents that situation seems to me to be clear. No issues of law were, preserved by motion nor by rulings on the evidence and no propositions of law were submitted to the trial court. The very first issue urged by the appellant in this court at the beginning of the argument set forth in his brief is “the original order memorandum is not a contract because it is not complete as to all its terms,” and on the contrary the appellee argues (assuming but not admitting that the question is before this court for review) that the written memorandum dated November 10, 1917, together with the samples concurrently submitted and therein identified, constituted a valid and binding contract for the sale and delivery of the 400 dozen, dresses therein referred to. Thus the .first and main issue presented for our review is one of law involving the construction which should be placed upon the written document signed by the parties under date of November 10, 1917. That the question of the construction of the document referred to presents an issue of law, hardly seems to admit of doubt.

Nor can I agree with appellant’s contention that, admitting this to present an issue of law, it is preserved for review by reason of the fact that the trial court allowed appellee’s motion to strike out certain evidence of conversations following the date of that document. Such ruling was quite as consistent with a holding of the trial court that the document was a completed order, as with a holding that it was a completed. contract.

Another issue urged upon this court by appellant is to the effect .that the evidence is such as to show that he was excused from the performance of such contract as he admits was consummated, by reason of the contract of the appellee, and it is further urged that the trial court erred in including certain elements of damages which should not have been considered. These matters likewise present issues of law.

No points other than these are argued by appellant in his brief and it is therefore my opinion that the judgment of the municipal court should be affirmed.