author: Mb. Justice McBbide

text:
    W. B. Martin & Son, Appellants, v. Mary Lamkin, Executrix, Appellee.
    1. Pbincipai, and agent, § 5a

      —when contract creates relation. A contract whereby a real estate agent is to have as his commissions all he obtains for the land above a fixed price creates the relation of principal and agent.
    2. Pbincipai, and agent, § 11*—when agency revocable. Unless an agency is coupled with an interest the principal may revoke it at any time, being liable for the damages sustained, and this rule applies though the appointment is by its terms made irrevocable.
    3. Principal and agent, § 12*—when agency is not coupled with an interest. An agents authority to sell land is not coupled with an interest in the land so as to be irrevocable by his principal where the interest of the agent could only arise out of the execution of the power and in the proceeds derived from the sale as a compensation for his services in its execution.
    4. Brokers, § 19*—when authority to ■ sell real estate revoked by death of owner. A contract between real estate agents and an owner of land whereby the agents were to have as commissions all they could obtain for the land above a fixed price, held not to create an authority to sell, coupled with an interest in the land, so that the agency would not he revoked by death of the owner.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Whitley & Combe, for appellants.
    W. F. Scott, for appellee.

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

   Mb. Justice McBbide

delivered the opinion of the court.

This was a suit brought by appellants against the appellee to recover commissions for the sale of real estate. At the conclusion of,appellants’ evidence the court directed a verdict for the appellee.

Fred Lamkin was the owner of one hundred and sixty acres of land in Saline county and on the twentieth day of May, 1912, authorized appellants, who were engaged in the real estate business, to sell the land. A Mr. Gersbacher, at the solicitation of appellants, went to examine this land on about the first day of June, 1912, with a view of purchasing it. He did not see Mr. Lamkin upon this trip, or at any time, but the appellants priced the land to him at ninety dollars per acre. He did not purchase it but went to his home, in White county, without making a contract. On July 13, 1912, Fred Lamkin died testate and devised this real estate to his widow, and on July 16th the widow, as executrix caused notice to be served upon appellants directing them not to sell the land in question. On July 23, 1912, Gersbacher came back to see the appellants about purchasing this land and again went to look at it and claims to have made a contract with appellants at that time for the land. Appellants offered to show that after the death of Fred Lamkin and on about July 23, 1912, he made a contract with Gersbacher for sale of this land at the price of thirteen thousand five hundred dollars, being fifteen hundred dollars in excess of the price for which they had been authorized by Lamkin to sell the land. They also offered to show by Gersbacher that he was at that time ready, able and willing to have paid the full amount of the purchase price. This testimony was objected to and the objection sustained. The contract or appointment authorizing appellants to sell the land in question was as follows:

“I, Fred Lamkin, authorize and employ W. B. Martin & Son to sell the following described Beal Estate, situated in the County of Saline and State of Illinois, to-wit: S E % of S W y4, and S W % of S E % of Section 35-8-6; also the east % of the N W % excepting about 5 acres south and east of the N. Y. Central B. B., and about five acres north and west of the N. Y. Central B. B. in E % of S W %, all in Section 2-9-6 E. of 3rd P. M., for the sum of Twelve Thousand Dollars, and upon the following terms, to-wit: Coal reserved with right to mine and remove same. Scales reserved. Terms as agreed, and I promise to pay said agents all over $12,000 commission on the amount of said Beal Estate or any part thereof may bring when sold, and after the expiration of this contract if sale or trade is made to any party previously seen or influenced in any way by said agents I promise to pay said agents the same commission as above stated and will use all means in my power to assist in the sale of said property, but will not sell for a less price or on easier terms than above stated, and agree with said agent not to sell or otherwise dispose of the above described Beal Estate without the written consent of said agents. If sale is made I agree to make a Warrantee Deed to whomever said agents may say, and furnish said purchaser an abstract of title to said land, showing a fee simple title in me.
This instrument to remain in full force until Sept. 1st, 1912, and thereafter until I give said agents written notice of withdrawal from sale.
Witness my hand and seal this 29th day of May, A. D. 1912.
(Signed) F. Lamkin. (Seal)”

The claim filed by appellants against the estate of Fred Lamkin is as follows:

“December 1, 1912.
Estate of Frederick Lamkin, Dr.
To W. B; Martin, Bay Martin and Guy' Martin, part- ‘ ners doing business under the firm name and style of W. B. Martin & Sons.
For commissions on sale of land and securing purchaser for land, per terms of written contract, $1,-500.00.”

By direction of the trial court a verdict was returned for appellee.

The real question involved in this case, as we view it, is: Did the appellants have the right to sell this land under the appointment above noted, after the death of Fred Lamkin, and after the executrix had notified them not to sell? The case was tried by the appellee and determined by the lower court upon the theory that the death of Frederick Lamkin revoked the authority of appellants to sell the land and that any sale made by them after the death, and after the notice by the executrix not to sell, was without authority of law. It will be observed that, by the terms of this appointment, Frederick Lamkin agreed to pay appellants, as agents, a commission upon the sale of said land all over twelve thousand dollars for which they sold the land, and that the instrument was to remain in full force until September 1, 1912. As we understand the law, a contract whereby a real estate agent is to have as his commissions all he obtains for the land above a fixed price, creates the relation of principal and agent. Burnett v. Potts, 236 Ill. 499. If appellants were the agents of Lamkin to sell this land, then under the law the death of Lamkin revoked the agency, unless the authority to sell is coupled with an interest in the land. A. & E. Encyc. of Law, vol. 1, p. 1222. This is the general rule, and as we understand the decisions of the higher courts of this State they are to the effect that unless the agency is coupled with an interest the principal may revoke it at any time, being liable for any damages sustained. Bonney v. Smith, 17 Ill. 531. And this power of revocation may extend to appointments that are by their terms made irrevocable. Walker v. Denison, 86 Ill. 142.

It is insisted by counsel for appellants that the present case does not come within the rule above invoked for the reason that appellants’ appointment was coupled with an interest and for a valuable consideration, and being so was irrevocable. We do not understand that there was any consideration given for this appointment or any specific obligation incurred by appellants by reason thereof. They were not by the terms of the appointment bound to do anything, but it was left at their pleasure whether they would or would not sell the land. If they did make the sale then they were to get the commission. In order to determine whether or not this was a power coupled with an interest, it is necessary to ascertain what is meant by the courts, in the use of this term. In the case of Bowney v. Smith, supra, it is said: “A power, coupled with an interest, must create an interest in the thing itself upon which the power is to operate; the power and estate must be united, or be coexistent, and this class of powers survive the principal and may be executed in the name of the attorney * * #. Another class of powers is where they are created upon a valuable consideration, and to operate as a transfer, mortgage or security to another, although the power can only be executed in the name of the principal * * *. These are irrevocable by the act of the principal, * * * and created to subserve purposes in which another has an interest. Another class is where the attorney has an interest only arising out of the execution of the power, as in the proceeds, as a compensation for the business of its execution. 8 Wheaton, 174; 2 Kent’s Com. 644. This power is of the latter class, and revocable by the principal, although the principal might perhaps be liable to the agent or attorney for any damages sustained. It is a naked power, with an interest in the proceeds, based only upon its execution, which execution is dependent upon the continuing will of the principal.” And in this opinion Mr. Story on agency is quoted at length confirming the doctrine announced. Again in the case of Walker v. Denison, 86 Ill. 146, it is said: “As to the exception of a power coupled with an interest, it is not enough, as appellant supposed, that the agent has an interest in the execution of the power. The meaning of that expression underwent discussion and was authoritatively determined in the case of Hunt v. Bousmanier’s Administrator, 8 Wheat. 174, where it was held that ‘a power coupled with an interest’ is where the power or authority is coupled with an interest in the thing itself, actually vested in the agent; and that it was not an interest in that which is produced by the exercise of the power. ’ ’ Chief Justice Marshall in the decision of the case of Hunt v. Rousmanier’s Adm’r, supra, in speaking of- the general rule says: “That a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an ‘interest,’ which survives the person giving it, and may be executed after his death. As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression, ‘a power coupled with an interest?’ Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear, that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself.” Counsel for appellants have cited cases which seem to hold that under circumstances where the agent has a contract for a definite period of time, and has expended money procuring a purchaser, and at about the time the purchaser was procured and after the owner had been advised that the sale was about consummated, that such agency under such circumstances could not be revoked, and the agent defeated in the collection of his commission. We can readily see that the attempted revocation under such circumstances would be a fraud upon the rights of the agent, but an entirely different question arises in the present case. There could be no fraud, as the revocation was based upon the death of Lamkin, and we think the cases referred to by counsel for appellants have no application to the present case. We are of the opinion that the death of Frederick Lamkin revoked the agency of appellants and that their appointment was not coupled with an interest in the land but their interest could only arise out of the execution of the power and in the proceeds as a compensation for their services in its execution, and that as the agency had been revoked by operation of law the contract of sale offered to be shown as having been made after the death of Lamkin was a nullity, and that as no sale had been made the commission claimed had not been earned under the terms of the contract, and that appellants are not entitled to recover the commissions claimed.

Again it is said by counsel for appellant that the appellants were entitled to compensation for the services that were actually performed by them under the appointment and before its revocation. This may be true, but if it is, no such question arose upon the record in this case. The claim made by appellants is not for compensation for the services rendered but is: “For commissions on sale of land and securing purchaser for land, per terms of written contract, $1,500.00.”

There is no evidence offered, showing or tending to show the value of the services^ rendered, and,t as we view it, there was only the one question presented to the trial court, and reviewable here, and that is, whether or not a sale was made and the appellants entitled to the commissions contracted for.

We are of the opinion that the court did not err in excluding the proffered testimony and in directing a verdict for the appellee, and the judgment of the lower court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Everett Rone, Administrator, Appellant, v. Martha E. Robinson, Appellee.
    1. Executors and administrators, § _ 92

      —when proceeding 6y citation inappropriate remedy. A proceeding by citation under sections 81 and 82 of the Administration Act, J. & A 130, 131, is not the proper remedy to try a contested claim of ownership to property.
    2. Gifts, § 9*—sufficiency of delivery to constitute gift inter vivos. To constitute a valid gift inter vivos there must be a complete delivery of the property, that is, such a change of possession as to put it out of the power of the giver to repossess himself of the thing given, and the delivery must be made with the intent to vest title in the donee.
    3. Gifts, § 15*—when gift inter vivos of certificate of deposit valid. Where a person in his lifetime gave his money to his daughter’s husband to deposit in a bank in her own name for the purpose of making a gift of the money to her, and the husband did so and took a certificate of deposit which recited that the money was deposited in her name, but beneath the signature of the cashier of the bank it further stated in the case of her death before the death of the donor the certificate becomes the property of the donor, held under all the evidence in the case that the transaction constituted a valid gift inter vivos, it appearing that the certificate was delivered by the donor to his daughter without anything said as to his right to repossess himself of the certificate, and that the writing on the certificate beneath the signature of the cashier was placed there on the proposal of the husband without any solicitation on the part of the donor.
    4. Triad, § 302*—authority of court to modify propositions of law. Under section 61, ch. 110, Hurd’s R. S., J. & A. f 8598, the trial court has authority to modify propositions of law.
    Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    W. B. Johnson, W. H. Hart and Mooneyham & Seeber, for appellant.
    Spiller & Miller, W. S. Cantrell and Gr. A. Hickman, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

This was an action of assumpsit instituted by the appellant in the Circuit Court of Franklin county, Illinois. Upon a trial had without a jury the court found the issues for the appellee and rendered judgment against appellant for costs, to reverse which this appeal is prosecuted.

It also appears from the record that a citation had been issued by the County Court of Franklin county against appellee requiring her to surrender to the appellant the certificate or check in question, and by agreement of the parties the cases were consolidated and are submitted to this court as a consolidated case.

It appears from the record in this case that the citation was originally issued by the County Court of Franklin county against appellee under sections 81 and 82, chapter 3 of the Revised Statutes of Ulinois (J. & A. 130, 131), directing and requiring her to surrender the certificate hereinafter described. The petition was dismissed by the County Court, from which order the appellant prosecuted an appeal to the Circuit Court, and thereupon instituted at the same term of court an action of assumpsit against the appellee, filing a declaration consisting of the common counts, and at the November Term, 1913, the two cases were consolidated, jury waived and tried before the Circuit Judge. On February 5, 1913, Ivan Jackson was the owner of twelve hundred dollars in money, part of which was in his possession and control, having been placed in tin cans which were secreted at different places, and part in a pocketbook which he kept in a bureau drawer, and part of it appears to have been under the control of and secreted by the appellee. Shortly before the fifth of February, Ivan Jackson had determined to give this money to his daughter, Martha E. Robinson, the appellee herein, and so told her husband, John Robinson, whom he selected to help him gather this money together and told Robinson that he wanted to give it to the appellee ' and to deposit it in a bank in her name so that she would be sure to get it. During the period in which they were engaged in gathering the money together and counting it, John Robinson suggested to Ivan Jackson that he was getting old and that the appellee might die before he did and that he would put a clause in the certificate to protect Ivan Jackson in case of her death. After the money had been collected together Ivan Jackson gave it to John Robinson and told him to deposit it in the bank and make the check or certificate payable to appellee. This was done, the money was deposited in the Farmers Exchange Bank and the following certificate issued:

“$1200. No. 186
Farmers Exchange Bank
Akin, 111., Feb. 5, 1913.
Martha E. Robinson has deposited in this bank Twelve hundred dollars, payable to herself in current funds, ■ six months after date on .return of this certificate properly endorsed, with interest at the rate of four per cent per annum. No interest after maturity.
John B. McG-uyer,
Cashier.
Certificate of deposit subject to check. In case of the death of Martha E. Robinson, before the death of Ivan Jackson, this certificate of deposit becomes the property of Ivan Jackson.”

The certificate of deposit was taken by John Robinson to Ivan Jackson, who, after having it read to him turned it over to appellee and said: “Take that and put it away, it was yours.” The check was received by appellee and kept by her. On July 10, 1913, Ivan Jackson died and this suit is brought to recover the money from the appellee.

The evidence introduced, the argument of counsel, and, in fact, the whole trial of this case has been conducted along the lines that appellee was in good faith claiming to be the owner of this certificate of deposit, and that appellant claimed that it had never been delivered to her, and, as we understand it, was purely a contest of the right of ownership of this certificate, and being a contest as to its ownership we do not think that the citation, under sections 81 and 82, is the proper remedy to try a contested question of this character. “The summary proceedings in the probate court to compel the production and delivery of property ‘is not the proper remedy * * * to try contested rights and title to property between the executor and others.’ ” Dinsmoor v. Bressler, 164 Ill. 211.

“If sections 81 and 82 could be used to settle contested rights to property as between executors and administrators on the one side and third persons on the other, they would operate as an infringement upon the constitutional right to trial by jury, as they contain no provision for a jury trial. ’ ’ Moore v. Brandenburg, 248 Ill. 240.

“The statute is not designed to afford the means of collecting debts due to estates (Williams v Conley, 20 Ill. 643), nor to try contested rights and title to property between the executors and others. (Dinsmoor v. Bressler, supra.)” Moore v. Brandenburg, supra. This same doctrine is fully recognized in Martin v Martin, 170 111. 18. We do not believe that this was a proper case for the summary proceedings under sections 81 and 82 of chapter 3, and are of the opinion that the court did right in dismissing the petition. The real question that is presented by this record is, as to the delivery of the certificate of deposit by Ivan Jackson to the appellee. The different views presented by counsel are concerned more with the facts and the application thereof to the law rather than the law itself. Indeed there can be little dispute as to what the law is, as we think it is well settled that to constitute a valid gift inter vivos there must be a complete delivery of the property, such a change of possession as to put it out of the power of the giver to repossess himself of the thing given, and the delivery must be made with the intent to vest the title in the donee. Telford v. Patton, 144 Ill. 611. The question here is, was there such a delivery of this certificate? To determine this question it is necessary to take into consideration all of the actions of the parties and the facts preceding and attending the delivery of this cheek, together with the declarations made by Ivan Jackson after its delivery. It is very clear from this testimony that Ivan Jackson desired to give his daughter, the appellee, the money in question, and it became with him a matter of how to deliver it so that it could not be taken away from her. The money was scattered around the house, in the smokehouse, hidden in the yard, in old cans, and in various places, and it became necessary for him to collect this money together. There was two hundred dollars of it in gold, at least, that seems to have been under the control of appellee and it was secreted by her in a tin can in the yard. John Eobinson, the husband of appellee, was taken into the confidence of Jackson and assisted in collecting this money together, and during this time Jackson said to him: “Now I want that money counted and took to the bank and I want to give it to Martha (appellee) ; he said I don’t know how much there is of it but whatever you take to the bank I want it deposited in her name. He called it a cheek and he said, I want the check made payable to her. ’ ’ That was on the night before the money was deposited. “He said for me to take it to wherever I pleased and deposit it.” Witness says: “I cannot tell you how much was in Mr. Jackson’s possession or in my wife’s possession.” Witness further says, that he told Jackson: “If you want to deposit it in her name I will put this clause in the certificate of deposit, in the case of my wife’s death before your death it becomes your property again. My wife was not present when I made this statement to Ivan Jackson. Jackson would say he wanted me to take it and deposit it in the bank in my wife’s name so she would be sure and get it. I took it to the bank and got a certificate of deposit that was shown here as Exhibit A.” Mr. Guyer, cashier of the bank, testified that when Robinson brought the money to deposit it that he said he had some money he wanted to deposit and wanted to deposit in Martha E. Robinson’s name and wanted a clause in that certificate providing that if Martha E. Robinson died prior to the death of Ivan Jackson it was to go to Ivan Jackson. The certificate of deposit was issued by the cashier and made payable to her order in current funds, signed by the cashier. Following the signature of the cashier, but not included as a part of the certificate, unless placing it upon the same paper makes it such, are the words: “In case of the death of Martha E. Robinson before the death of Ivan Jackson this certificate of deposit becomes the property of Ivan Jackson.” The certificate was then taken by John Robinson and delivered to Ivan Jackson, who caused his grandson to read it to him and he then handed it to appellee and said: “Take that and put it away it was yours,” and it has been in her possession ever since. John Robinson, who was the witness of plaintiff, further testifies: “That was put on the certificate of deposit at my own proposal. The reason I proposed it my wife was a weakly woman and I did not know whether she would live to take care of her father in his old age or not and I did not know but what he would need that money himself before he died and if she didn’t live to take care of him I wanted him to have the money to take care of himself. He never made that request to me. There never was any request made whatever on the day I took this money to deposit that it should be in the certificate of deposit.” The appellee was not present at these conversations, and so far as the record discloses knew nothing of the talk between her husband and the deceased. It further appears from the record that the deceased told J. D. Allen that he was going to give his daughter one thousand dollars or more and he aimed to have it put in the bank in her name so they could not get it from her. Frances Jackson says that Ivan Jackson told her, “I made her a check for twelve hundred dollars.” Omer Beece says that Ivan Jackson told bim that he had .given Martha Bobinson twelve hundred dollars and John put it up here in the bank, and in the same conversation said that Martha was run to death and had so much work to do but he intended to pay her well, and named over what he had given her.

It is insisted by counsel for appellant that this was a conditional check and that the gift was made conditional. It will be observed that the check was made payable absolutely to appellee without any conditions, signed by the cashier, and while it is true that written beneath the signature of the cashier was the clause above stated, yet that is not signed by the cashier or included in the certificate, and when this certificate was taken to Ivan Jackson he caused it to be read and delivered it to appellee. He, at that time, said nothing about retaining the money or reserving the right to at any time repossess himself of it. No obligation was taken from her and no request made of her to in any manner return it and he, at that time, did not even sign the memorandum that had been placed at the bottom or ask her to sign it. The statement itself is not a reservation and does not pretend to retain the property in any manner. When we take into consideration the fact that Ivan Jackson at no time made a request that such a clause be even attached to the certificate of deposit, that the placing of such a clause originated with the husband of appellee, that at the time of the delivery by Ivan Jackson to appellee nothing was suggested about retaining or in any manner resuming possession or control of tins money, that he apparently gave no concern about this whole matter, except that he wanted the daughter to have the money, and afterwards told other persons that he had given it to her and that he had placed it so that they could not get it away from her, we are convinced that he had no intention and in fact did not reserve any control of this money but delivered it to her as hers absolutely.

Even if a thought had occurred to him to adopt the suggestion of Eobinson, which was made without the knowledge of appellee, and that when deceased came to deliver the certificate to appellee he made no suggestions or requirements of appellee with reference to a return of the money, the reasonable conclusion would be that whatever might have been in his mind before that was waived when he handed the certificate to appellee and said: “Take it, it is yours.” It may be that the construction placed upon the writing attached to the certificate by the trial judge is in the nature of a strict construction, but we are of the opinion that under the evidence in this case, and for the purpose of giving effect to the clear intention of the deceased, that he was warranted in adopting such a construction.

Much stress is laid by counsel for appellants upon the case of Telford v. Patton, supra, and it is insisted that this case is controlled thereby. It is true that the principles with reference to delivery are correctly laid down in that case, but an examination of the case will show that it is entirely different from the one now under consideration. In that case the certificate of deposit had never been delivered to the donee, nor had the donee been advised of its existence, but the donor had simply had a certificate made payable to the donee and kept it in his own possession without in any manner advising any one with reference thereto, and in the decision of that case, the Court at page 623 said: “In the absence of any proof of declarations made by Telford to the Bank, and in the absence of any proof as to his intentions in obtaining the certificate, it cannot be said that he was ever wholly divested of control and dominion over the deposit so long as the certificate remained in his possession.”

Exceptions have been taken to the court’s refusal to give propositions one, four and five offered by the plaintiff. The first proposition is not applicable to facts in this case. There was no condition stated and no provision that it should remain the property of the donor as set forth in the proposition.

In the second and third propositions there is no evidence that any agreement was made between the deceased and defendant, or their authorized agent, and, even if an unsigned statement appeared upon the certificate, as it certainly did, anything contained in such statement could have been waived by the declarations or conduct of the parties, which is entirely ignored by these propositions.

The fourth proposition could well have been held by the court to be the law, but it was given substantially in appellant’s sixth proposition.

The criticism made upon plaintiff’s third and seventh legal propositions, that the court erred in modifying the same, is without merit, as the statute expressly authorizes the court to modify such propositions under section 61, ch. 110 of the Revised Statutes. (J. & A. If 8598.)

After a very careful examination of this whole record we are of the opinion that the court was warranted in finding the issues for the plaintiff. At all events, committed no error in so finding that would warrant us in reversing the case, and we are of the opinion that the judgment should be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Barnes

text:
    David G. Geraghty, Plaintiff in Error, v. National Fire Proofing Company, Defendant in Error.
    Gen. No. 19,709.
    (Not to he reported in full.)
    Error to the Superior Court o£ Cook county; the Hon. Theodore Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Action by David G. Geraghty against National Fire Proofing Company to recovér for personal injuries' sustained by plaintiff. In a former trial plaintiff recovered a joint judgment against the defendant and the William Grace Company and on appeal the judgment was reversed with a finding of fact in favor of the William Grace Company, and directions for a new trial as to the defendant, the National Fire Proofing Company. The second trial resulted in a judgment in favor of the defendant and to reverse the judgment plaintiff prosecutes error. See 157 Ill. App. 308, 309.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1818

      —conclusiveness of decision on former appeal. The giving of an instruction calling upon the jury to readjudicate a question which was raised and decided on a former appeal, held error.
    2. Negligence, § 222*—when instruction erroneous as ignoring question of defendant’s negligence. In an action for personal injuries where the suit was brought against a company other than plaintiff’s employer, an instruction telling the jury that if they believed from the evidence that plaintiff’s employer was negligent and that said negligence was the proximate cause of the injury they should find the defendant not guilty, held erroneous and the giving of the same reversible error, for the reason that it required the jury to ignore the question of defendant’s negligence and the fact that it may have been concurrently negligent even if the proximate cause of the injury was the negligence of plaintiff’s employer.
    3. Instetjctions, § 81*—when erroneous as singling out facts. An instruction which improperly singles out one fact in the chain of the evidence for the consideration of the jury is erroneous.
    One of the grounds relied on for reversal is the giving of the following instruction:
    “If you believe from all the evidence in this case that the plaintiff’s employer, the William G-race Company, was negligent in failing to exercise reasonable care in furnishing the plaintiff a reasonably safe place to work at the time of the accident, and that said negligence was the proximate cause of the injury complained of, then you should find the defendant, National Fire Proofing Company, not guilty.”
    Bice, Lowes & 0 ’Neil, for plaintiff in error.
    Frank M. Cox and B. J. Fellingham, 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.


text:
    City of Chicago, Defendant in Error, v. Charles Murphy, Plaintiff in Error.
    Gen. No. 19,715.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal cokpobations, § 864

      —when proof of venue insufficient to sustain conviction for violation of ordinance. A conviction for a violation of a gambling ordinance cannot be sustained where the only proof of the venue was that the gambling took place at “3036 South State street,” and there was nothing in the record to show that the street was located in the city alleged.
    2. Evidence, § 14*—judicial notice of location of streets. Courts of this State will not take judicial notice that certain streets mentioned in the record are located in any particular city.
    Error to the Municipal Court of .Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Prosecution by the City of Chicago against Charles Murphy in which the defendant was convicted on the charge of being connected with the management and operation of premises in the City of Chicago, kept for the purpose of permitting persons to gamble in violation of an ordinance of said City. To reverse the judgment, defendant prosecutes érror.
    Edward H. Morris, for plaintiff in error.
    William: H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mb. Presiding Justice Barnes

text:
    Margaret Carey, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 19,729.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Instructions, § 154

      —when modification by substituting word “may" for “mil” misleading. Where an instruction as offered told the jury “that it is the duty of plaintiff to prove her case by a preponderance or greater weight of the evidence, and if the jury believe that the evidence bearing upon the plaintiff’s case, as laid in her declaration or any count thereof, proponderates in her favor, they will find the defendant guilty,” was modified by the court in substituting for the word “will” the word “may” in the final clause,' held the modification rendered the instruction misleading, as conveying the idea that the direction to find the defendant guilty was discretionary, and that the misleading character of the instruction was sufficient to require a reversal.

      Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Action by Margaret Carey against Chicago Railways Company to recover for an assault by defendant’s con-ductor in ejecting plaintiff from one of its cars. To. reverse a judgment for defendant, plaintiff prosecutes a writ of error.
    Smietanka, Johnson, Molthrop & Polkey, for plaintiff in error; Charles P. Molthbop, of counsel.
    Robert J. Slater and Alfred B. Davis, for defendant in error; John R. Guilliams and Frank L. Kriete, of counsel.

       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.

   Mb. Presiding Justice Barnes

delivered the opinion of the court.

2. Instructions, § 52*—use of mandatory words: Where an instruction is to direct the jury to find for the party that proves his case by a preponderance of the evidence, the direction should be mandatory by the use of the word “shall” or “should,” though the use of the word “will” will not be considered improperly employed.

3. Carriers, § 525*—when testimony improperly stricken out as hearsay evidence. In an action against a street railway company to recover for a malicious assault by defendant’s conductor in ejecting plaintiff from one of its cars, plaintiff swore that she gave the conductor a transfer and she was corroborated as to such fact by another passenger who also swore that she told the conductor before ejecting plaintiff that she had paid her fare, and plaintiff also testified as to what said passenger told the conductor but the court struck out the testimony as hearsay evidence, held that the court erred in striking out the testimony for the reason it tended to show what information the conductor had before ejecting plaintiff, and was material and direct evidence bearing on the question of malice and the character of his subsequent conduct.


text:
    William K. Noble, trading as Wayne Hoop Company, Appellee, v. Charles A. Watson et al., trading as C. A. Watson & Company, Appellants.
    Gen. No. 19,749.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Habry Olson, Judge presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Action by William K. Noble, trading as Wayne Hoop Company against Charles A. Watson, Reginald A. Watson and Harold B. Watson, copartners, trading as C. A. Watson and Company to recover the purchase price of a carload of hoops shipped by plaintiff from Fort Wayne, Indiana, to the defendants at Savannah, Missouri. Defendants did not deny liability for the hoops, but filed a set-off for damages in delaying delivery. By agreement the claim of plaintiff was adjusted and the case heard on defendants’ claim of set-off as If on an independent action therefor. At the close of the case the court, on motion therefor, directed a verdict for plaintiff. To reverse the judgment entered on the verdict, defendant appeals.
    The contention of appellants was that there was evidence tending to show a complete oral agreement between the parties and damages for a breach thereof, and appellee’s contention was that the oral agreement was merged in a subsequent written agreement, as to which there was no proof of damages.
    The record shows that Reginald A. Watson, one of the appellants, testified that the dealings began by conversations over the telephone with one Milliken, appellee’s agent, about August 25,1910; that in a conversation on August 31st the latter expressly promised and agreed to have a car containing 60,000 hoops rolling by September 2nd and delivered at Savannah, Mo., by September 5,1910, without fail, at the price of $10.25 per thousand, and that thereupon Watson said: “You can take the order and I will wire you tomorrow so that you will have something to show for this order.” Accordingly, the next morning he sent appellee the following telegram: ‘ ‘ Ship Savannah, Mo., car to be rolling night of September second sixty thousand number one elm hoops six feet.
    O. A. Watson & Co.”
    and wrote appellee a letter saying:
    “This confirms our wire this date instructing you to load car 60,000 No. 1 elm hoops 6 ft., to be billed to ourselves Savannah, Mo. Car to be loaded and rolling Friday night, Sept. 2, 1910. Price to be as per your quotation $10.25 per M. F. O. B. above destination, terms to be 30 days net. We may want part of this car at Amazonia with a stop off at Savannah to partly unload. Then if we wish all car to Savannah can unload same there. Kindly forward B. L. to us promptly so that we can trace to destination and you also trace as we are waiting for stock and if same is satisfactory you will hear from us with further business. In haste,
    C. A. W. & Co., B. A. Watson.”
    A letter of same date, answering said telegram and signed “Wayne Hoop Co.,” was as follows:
    “In line with your telegram of even date we enter your order for carload of 60,000 -6-0,/ hoops to be shipped Savannah, Mo., which we will let go forward either Saturday or Monday. If we can get them out tomorrow, will certainly do so, but hardly think our mill will be able to get them out.
    After the car leaves our mill, we will have it followed with a wire tracer, and have it rushed through to you without further delay.”
    On September 2nd, appellee replied to appellants’ letter as follows:
    “We have your favor confirming your telegram of even date. We wrote you yesterday, acknowledging receipt of your order, which we wired you we could get on the way either Saturday or Monday of next week. We note you want us to bill this shipment to you at Amazonia, Mo., with a stop-off at Savannah, and have taken this matter up with our mill to do this. It. is a little doubtful whether they will allow us to do this, as the western railroads as a rule do not allow stop offs.
    Our traffic manager has not rate to Amazonia, Mo., and we presume it takes St. Joseph rate of freight. If not, we will expect you to stand all over this.
    Yours truly,
    Wayne Hoop Co.”

      Abstract of the Decision.
    Sales, § 373

      —when evidence of oral contract as to time of delivery sufficient to go to jury. In an action for the purchase price of a carload of hoops, where the case was tried on the buyers’ claim of set-off for delay in delivery of the shipment, held that the evidence tended to show a complete oral contract made by telephone with plaintiff’s manager to deliver the car to the defendants by a certain date, to show that defendants’ subsequent telegram and letter were intended to confirm the oral agreement rather than to constitute an abrogation of it, and to furnish a basis for the computation of damages; and held that it was therefore a question for the jury whether there was such an oral agreement, and that the court erred in directing a verdict for the plaintiff.
    After receiving the two letters from appellee, appellants wired on September 5th:
    "Just arrived Chicago. Note letter second. Is car rolling? Send number and routing,” and on September 8th: "Why don’t you give us car number routing car hoops. Must have car at once to prevent serious damage. ’ ’
    Hoyne, O’Connor & Irwin, for appellants; Carl J. Appell, of counsel.
    Musgrave, Oppenheim & Lee, for appellee.

       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.


text:
    J. A. Shewbridge, alias J. A. Strewbridge, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,801.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.

      Abstract of the Decision.
    1. Damages, § 134

      —when recovery for injury to Shull not excessive. A verdict for three thousand dollars for personal injuries held not excessive where plaintiff received a fracture of the skull, necessitating the removal of a portion thereof which left a depression about one-third of an inch deep and two inches long, leaving the brain apparently covered by connective tissues and cartilage only, it appearing that the condition is permanent and that he suffered from headaches, dizziness and pains in the head continuously.
    2. Appeai, and error, § 2143*—when improper proceedings in trial cannot he complained of. A party is in no position to urge as error improper proceedings in trial court which tended to convert the trial into a mere game, where he made no complaint below, but on the contrary his counsel sought to use it for his own advantage.

      Statement of the Case.
    Action by J. A. Shewbridge, alias J. A. Strewbridge against Chicago City Railway Company to recover damages for personal injuries received by plaintiff while a passenger on one of defendant’s cars. The injuries resulted from a collision between the car and a team and wagon at a street intersection. The action is grounded on the claim of negligence by the motorman in approaching the crossing, (1) in propelling the car at too great speed; (2) in failing to keep a proper lookout; (3) in not having the car under proper control; (4) in failing to sound the gong. From a judgment in favor of plaintiff for three thousand dollars, defendant appeals.
    Busby, Weber, Miller & Robinson, James G-. Con-don and Arthur J. Donovan, for appellant; Leonard A. Busby, of counsel.
    Richard J. Finn, for appellee.

       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.

       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.

3. Instructions, § 15 —when properly refused for permitting jury to determine material issues. A requested instruction which leaves it to the jury to determine for itself what are the material points in the case, from the declaration and without any other instruction to guide them, held properly refused.

4. Cabbiebs, § 484*—when instruction on degree of care to passenger not misleading. An instruction given for plaintiff which told the jury: “It is the duty of common carriers to do all that human care, vigilance and foresight can reasonably do under the circumstances, and in view of the character of the mode of conveyance adopted, and the practical operation of the road, reasonably to guard against accidents and consequential injuries, and if they neglect so to do, they are to be held strictly responsible for all consequences which directly flow from such neglect (provided such neglect and consequences is alleged in the declaration and established by the proofs); that while the carrier is not an insurer ol the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passengers and is responsible for the slightest neglect resulting in injury to the passenger (provided such neglect and injury is alleged in the declaration and established by the proof) if the passenger is, before and at the time of the injury, exercising ordinary care for his own safety,” held not misleading for the reason that the last part of it (following the semicolon) omitted to limit the decree of care to such as is consistent with the practical operation of the car line, in view of the fact another instruction given embodied the limitation, and that reference to the same limitation was again made in the first part of the instruction complained of.

6. Instructions, § 81*—when not objectionable as singling out one of a series of facts. In an action against a street railway company to recover for personal injuries sustained by a passenger in a collision, a requested instruction as to the rate of speed a street car may run without being charged with negligence, held not subject to objection that it violates the rule against singling out and directing the jury’s attention to one of a series of facts,—that relating to speed, where it distinctly directs consideration of the evidence on that point with the other circumstances in evidence.

6. Cabbiebs, § 479*—when refusal of reguested instruction not prejudicial. The refusal of a requested instruction telling the jury that: “The law does not regulate the precise rate of speed at which a street car must be run under any given circumstances, nor does it require that street cars be run at such a low rate of speed that would prevent the practical operation of the railroad’s business as a public carrier of passengers. There is no law limiting the rate of speed to any given number of miles. The law only requires that those operating the car exercise towards passengers the highest degrees of practicable care, as defined by these instructions, and if you believe from the evidence, and under the instructions, that the rate of speed at which the car was being run at the time and place of the accident was, under the circumstances in evidence in this case, not inconsistent with the exercise of the highest degree of practicable care as defined herein, on the part of those in charge of the car, then no negligence can be chargeable to the defendant in the operation of the car on the ground of the speed at which it was running,” held not prejudicial error where it was not contended that the defendant was limited to any particular speed and all that was material in the instruction was included in another instruction given.

7. Damages, § 211 —when evidence justifies instruction to allow for future suffering and loss of health. The giving of an instruction directing the jury to consider evidence of “future suffering and loss of health” in determining the amount of damages, held not objectionable on the ground there was not evidence to justify consideration of such matters, where there was proof that plaintiff was suffering from a recurrence of pains in his head and dizziness up to the time of the trial.


text:
    Advance Amusement Company, Appellee, v. Frederick H. Franke, Appellant.
    Gen. No. 19,826.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Tobbison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Rehearing denied October 16, 1914.
    Statement of the Case.
    Action by Advance Amusement Company against Frederick H. Franke to recoyer the sum of twenty-five hundred dollars deposited by plaintiff with defendant pursuant to the terms of a lease. Plaintiff on March 11, 1912, leased certain premises of defendant for a term ending February 28, 1917, at a rental , of three hundred and fifty dollars per month. By reason of default and failure to pay rent for December and a portion of the rent for November, 1912, the lessor, after giving the statutory five days ’ notice, brought suit for possession of the premises, obtaining judgment therefor December 17, 1912. In the present suit plaintiff recovered a judgment for the sum of the deposit, less the amount of rent that had accrued and remained unpaid to the date of the termination of the lease as aforesaid. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Damages, § 88

      —when sum named in lease as liquidated damages construed as penalty. A provision in a lease that in the event the lease shall be terminated by reason of a breach of the second party of any of its terms and conditions by him to be performed, “then and in such event the party of the first part may at his option retain as for and in full of liquidated damages’’ a certain stipulated sum, construed as providing for a penalty instead of liquidated damages in view of the use of the words “at his option.’’
    2. Damages, § 88*—when stipulated sum will 8e construed not liquidated damages. Where there is language in the contract indicating that the damages that may arise from its breach were not irrevocably fixed and settled by the parties, the inference would be against the conclusion that a stipulated sum was intended as liquidated damages, even though the parties so denominated it.
    Sonnenschein, Berkson & Fishell, for appellant.
    T. F. Monahan, for appellee.

      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.


text:
    Agnes E. Nadler, Appellee, v. Illinois Commercial Men’s Association, Appellant.
    Gen. No. 19,833.
    1. Insurance, § 717

      —words “passenger train” in try-law construed. A train run on schedule time carrying passengers as well as freight, held to he a “passenger train” within the meaning of a by-law of a mutual benefit association which provided for an indemnity to be paid in case of the death of a member while riding as a passenger on a passenger train.
    2. Insurance, § 120*-—rule in construing policies. Where expressions in insurance policies are susceptible of two interpretations and of doubtful meaning, the one most favorable to the insured will be adopted.
    3. Evidence, § 403*—when expert testimony incompetent to explain meaning of words. The expression “passenger train” in a by-law of a mutual benefit association providing for the payment of an indemnity in case of the death- of a member while riding as a passenger on a passenger train, held not ambiguous so that testimony of railroad officials would be competent to explain it.
    Appeal from the Circuit Court of Cook county; the Hon. Charles -H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    James Mater and Ryan & Condon, for appellant; Irvin I. Livingston, of counsel.
    M. Marso, for appellee.

       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.

One Frank Nadler, to whom appellant issued an accident insurance policy, met his death as the result of the derailment of a railroad train, propelled by steam, consisting of an engine, tender, six loaded freight cars, a caboose and a passenger coach. At the time of the accident he was riding as a passenger in said coach. The train was under charge and control of a conductor and train crew, and ran on schedule time carrying passengers and baggage as well as freight.

The sole question here involved is whether such train was a “passenger train” in the sense those words are used in á proviso of one of appellant’s bylaws, which, though adopted subsequent to the issuance of the policy, became by its provisions a part thereof, and reads:

“Provided, however, that the indemnity to be paid under the provisions of this section, in case the death of the member shall have resulted from an accident, which occurred to said member whilst riding as a passenger on a passenger train, propelled by steam and inside a coach or passenger car thereof, shall be $10,000.”

The case was heard by the court without a jury, and the several assignments of error are embraced in the claim that the court erred in refusing to hold as law and to find as a fact that such train was not a “passenger train” within the meaning of the policy.

Testimony was given in behalf of appellant by railroad officials, presumably called as experts, to the effect that in railroad circles trains are designated and known as passenger, freight and mixed; that, besides the engine, a passenger train consists of a baggage car and passenger coaches; a freight train of freight cars and a caboose; and a mixed train of freight cars and a passenger coach or combination car. While no evidence to the contrary was offered, the court properly, in our opinion, disregarded such testimony. It was not needed for construction of the contract and was therefore incompetent. Its interpretation involved no question of science, skill or trade justifying resort to expert testimony. The right to indemnity depended entirely upon whether the words “passenger train” applied to the train in question, existence of the other conditions of liability not being questioned. Appellant seeks to impress upon them a technical meaning, adapted to distinctions made for railroad and possibly some commercial purposes. But in ordinary acceptation and use a “passenger train” is one run and “advertised to take passengers generally—people travelling from place to place—upon terms and in the manner ordinarily applicable to such passengers” (2d Bouvier’s Law Diet., 611, 612), and it is no less a passenger train, when so run and advertised, simply because it also carries freight. The main object of the policy was indemnity against accidental injury or death while the insured was being carried as a passenger on a train scheduled and used for such service. Had appellant intended by the proviso in question to limit its liability to trains carrying passengers and baggage only, it would have been an easy matter to have framed the by-law “in such a way,” as said in Illinois Cent. R. Co. v. People, 143 Ill. 434, involving a similar question of construction, “that no doubt could have existed in regard to the intention.” Without other restrictive or qualifying words the expression employed in the by-law could not without violence to its ordinary meaning,— keeping in view, as we must, the purpose of the policy, —be limited by the technical distinctions observed in railroad parlance.

Even if the expression be deemed susceptible of two interpretations and of doubtful meaning, then in accordance with a recognized principle in construing insurance policies, the one most favorable to the insured will be adopted. Healey v. Mutual Acc. Ass’n, 133 Ill. 556; Forest City Ins. Co. v. Hardesty, 182 Ill. 39; Terwilliger v. National Masonic Acc. Ass’n, 197 Ill. 9; Grand Legion of Illinois, Select Knights of America v. Beaty, 224 Ill. 346. In fact it has been held that in such a case, “the court should construe the provisions of the contract .strictly as respects the company and liberally as regards the insured, because the language employed is that of the insurance company. ’' Burkheiser v. Mutual Acc. Ass’n, 10 C. C. A. 94, 61 Fed. 816. Several cases may be referred to, without discussing them, where the same rigid construction of the words “passenger train,” as employed in statutes and contracts, has been unsuccessfully evoked. Ohio & M. Ry. Co. v. People, 29 Ill. App. 561; Illinois Cent. R. Co. v. People, supra; Cleveland, C., C. & St. L. Ry. Co. v. People, 175 Ill. 359; Gray v. Chicago, M. & St. P. Ry. Co., 189 Ill. 400; Chicago Great Western Ry. Co. v. St. Paul Union Depot Co., 68 Minn. 220; Schwartz v. Missouri, K. & T. Ry. Co., 83 Kan. 30.

We agree with appellant that the expression is not ambiguous, and therefore the testimony, heard to explain it was incompetent. Keeping in view the purpose of the policy and the. ordinary use and meaning of the expression, we entertain no doubt that, as used in the by-law, it contemplated any train, like the one in question, regularly run on schedule time for the accommodation and carriage of passengers, whatever else it might carry.

We think the judgment fixing appellant’s liability accordingly should be affirmed.

Affirmed.


text:
    Marcus Sachs, Appellee, v. Charles F. Giesenschlag et al., on appeal of Charles F. Giesenschlag, Appellant.
    Gen. No. 19,846.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscab M. Tobeisoet, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.

      Abstract of the Decision.
    1. Appeal and error, § 1855

      —undertaking of sureties on appeal bond. Sureties on an appeal bond are bound by the terms of the bonds and must pay upon the occurrence of the contingencies upon which they agreed to pay.
    Statement of the Case.
    Action by Marcus Sachs against Charles F. Giesenschlag and others on an appeal bond. In a suit for an accounting between Marcus Sachs and Simon Sachs, copartners, a money decree in favor of the former was entered, and in default of payment thereof a receiver was appointed to hold the property until sold and disposed of under the orders of the court. An appeal taken by Simon Sachs from the decree having been dismissed, this suit was brought upon the appeal bond.
    To the cause of action it was pleaded below that the receiver took possession of property belonging to Simon Sachs sufficient in value to pay the decree, costs and interest, and that said decree gave plaintiff a first lien thereon. From a judgment entered against the defendant Charles F. Giesenschlag, one of the sureties on the bond, he appeals.
    It is contended on appeal that the possession of the receiver under the circumstances was a satisfaction sub modo the same as a levy by virtue of an execution on property sufficient to satisfy the judgment upon which it is issued.
    Charles Daniels and Sumner C. Palmer, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Clarence J. Silber, of counsel.

      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. Presiding Justice Barnes

delivered the opinion of the court.

2. Appeal and erbob, § 1864 —what not a defense by surety on appeal bond. A surety on an appeal bond, where the appeal was dismissed, cannot in a suit on the bond interpose the defense that the decree appealed from was satisfied by reason of the fact that a receiver appointed by the court below took possession of sufficient property of the obligor to pay the decree, costs and interest.

3. Subrogation, § 30*—right of surety on appeal bond. A surety on an appeal bond who is required to pay the amount of the judgment, costs, etc., is entitled to be subrogated to the obligor’s right pro tanto to funds in the hands of a receiver, who was appointed by the trial court to take possession of the obligor’s property.


text:
    Postal Telegraph-Cable Company of Illinois, Appellee, v. Robert Staehle et al., Appellants.
    Gen. No. 30,604.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Bill in equity by Postal Telegraph-Cable Company of Illinois, a corporation, against Robert Staehle, doing business as Selden Investment Company, and others. In its material parts the bill avers that complainant employs a large force of skilled persons to whom defendant, Staehle has made loans at exorbitant and usurious rates of interest on their individual notes secured by assignments of their wages earned and to be earned for a period of ten years, each with an annexed power of attorney to make certain waivers and confess judgment for the amount loaned with usury, attorneys’ fees, etc.; that complainant has endeavored to comply with such assignments with the result that employees quit its service and its business was thereby injured; that it made an agreement with defendant Staehle for partial payments each month on certain of said loans but that Staehle disregarded the same, demanding payments in full and resorting to the courts for the enforcement of said assignments and his claims; that several suits based on said assignments are pending against complainant and other suits are threatened, and that the other two defendants, his attorneys, are conspiring with him to bring such suits.
    Abstract of the Decision.
    1. Injunction, § 187

      —when MU to enjoin prosecution of suits on assignments of wages insufficient. A bill filed by a company against an assignee of its employees’ wages to restrain said assignee and his attorneys from prosecuting suits at law on such assignments on the ground that such assignments were procured by fraud and that to enforce the assignments would result in complainant’s employees quitting its service and thereby injuring its business, held to contain no averments entitling complainant to equitable relief, there being no averments of fact to show that assignments were procured by fraud and the bill setting forth nothing illegal in the transaction except" usury.

      Connected with these averments are allegations in general terms, unsupported by averments of fact, that the assignments were procured by fraud, misrepresentation and duress, and that defendant Staehle has “extorted” and is attempting to extort illegal sums of money and the wages of said employees.
    Pursuant to the prayer of the bill the court entered an interlocutory order restraining defendants from prosecuting pending suits and bringing further suits at law on assignments of wages made by complainant’s employees, and from extorting or attempting to extort money from them. This appeal is from an interlocutory order granting the injunction and denying defendants’ motion to dissolve the same.
    Charles B. Napier and Charles S. McIlvaine, for appellants.
    Jacob E. Dittus, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Subrogation, § 5 —when employer paying wages after notice of assignment not entitled to. Where an employer after notice of assignment of wages pays the employees their wages, he is not entitled to subrogation against the assignee where the assignors are legally liable for the amount of their loans and bound by their assignments.

3. Discovert, § 5*—when claim of right to, does not furnish ground for equitable relief. Equity will not entertain a bill upon complainant’s claim of a right to a discovery and an accounting, where its right thereto is predicated upon the claim that it has no means of knowing the number and amount of assignments of its employees’ wages and that it has paid its employees’ wages so assigned in order to retain their services and to prevent defendant using such assignments “to extort money to which he is not entitled,” it appearing complainant is not liable on any assignments of which it received no notice and the bill not alleging its inability to acquire such information from its employees or their assignee.

4. Equity, § 59*—multiplicity of suits. Equity will not take jurisdiction on the ground of multiplicity of suits, where the only suits that can be brought against complainant aré upon assignments of its employees’ wages and no one of such suits would settle any controversy of fact or law in the others, it also appearing that the complainant seeks to adjust in one suit by an accounting the several rights of action which it has voluntarily invited against itself by disregarding notices of what it admits were legal assignments, and as to which anything in the bill constituting a defense would be available at law.

5. Injunction, § 160*—sufficiency of verifiction of bill for prelim-nary injunction. A preliminary injunction will not be granted where the essential allegations are verified on information and belief.


author: Mr. Justice Gridley

text:
    Continental & Commercial Trust & Savings Bank, Trustee, Appellant, v. Breen & Kennedy et al., Appellees.
    Gen. No. 19,757.
    1. Bankruptcy, § 23

      —proof of preferential payment. To charge a creditor of a bankrupt with a preferential payment the trustee is required to prove not only that the bankrupt made a payment which had the effect of a preference, but also that the creditor had reasonable cause to believe that a preference was intended; it is not sufficient to prove that the creditor had knowledge of facts and circumstances sufficient to put him on inquiry to ascertain whether the debtor was insolvent and that the payment was intended as a preference.
    2. Bankruptcy, § 23*—persons chargeable with preferential payments. An indorser or guarantor of a note of a bankrupt is a creditor within the meaning of section 60 b of the Bankruptcy Act so as to charge him with a preferential payment made to the holder of the note, and both the owner of the note and the indorser or guarantor may be charged for the receipt of a preferential payment to the holder, but only the amount by which the assets of the estate have thereby been depleted must be returned.
    3. Bankruptcy, § 23*—when evidence insufficient to charge defendants with preferential payments. In an action against two defendants to recover preferential payments made to them by a bankrupt within four months from the time the bankruptcy petition was filed, evidence held insufficient to prove that either defendant had reasonable cause to believe that a preference was intended.
    4. Action, § 32*—when action is in contract. An action by a trustee of the estate of a bankrupt against two defendants to recover a certain sum of money alleged to have been paid as a preference, held to be an action in contract, requiring plaintiff to prove his cause of action against both defendants.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement by the Court. On April 22, 1912, plaintiff, as trustee of the estate of Minor T. Jones, bankrupt, filed a praecipe in the office of the clerk of the Municipal Court of Chicago, in an action of the first class, directing the issuance of a summons against Breen & Kennedy, a corporation, and Andrew J. Graham, doing business as Graham & Sons, as defendants, “in a plea of trespass on the case on promises.” The summons was issued and served upon both defendants, and they entered their appearance.
    Plaintiff’s second amended statement of claim alleged, in substance, that plaintiff’s claim was for the recovery, as trustee of the estate of Minor T. Jones, bankrupt, of “certain preferential payments” made by said Jones; that on March 23, 1909, an involuntary petition in bankruptcy was filed against said Jones, and on April 24,1909, he was duly adjudicated a bankrupt; that on January 15, 1909, within less than four months prior to the filing of the petition, Jones paid out of his assets a promissory note, previously given by him, for $1,000 with interest thereon, which note was due on or about January 1,1909; that on February 15,1909, he also paid out of his assets four promissory notes, previously given by him, each for $1,000 and due respectively on or about February 1, March 1, April 1, and May 1, 1909, only the first of which notes being due at the time of said payment; that to pay said five notes and accrued interest said Jones paid out of his estate the total sum of $5,457.50; that the same “were paid to Graham & Sons, bankers, either for their own personal benefit, or for the use of Breen & Kennedy, a corporation, one of the defendants, or for the use and benefit of both Graham & Sons and Breen & Kennedy;” that on January 15, 1909, and for some time prior thereto, and on February 15, 1909, “Graham & Sons and Breen & Kennedy, or either or both of them, were well informed or had knowledge of facts sufficient to charge them with notice,” that the said Jones was insolvent, and that the payment of said $5,457.50 by said Jones “would necessarily operate as a preference by the bankrupt in favor of said Graham & Sons and said Breen & Kennedy, or which

      ever of them were real beneficial owners of said notes; ’ ’ that on May 11, 1911, plaintiff was duly appointed trustee of said bankrupt’s estate and has been allowed by the United States Court to bring this suit in behalf of said estate; and that “plaintiff desires to recover of said Graham & Sons or said Breen & Kennedy, or either or both of them, or whichever one of them shall have received the benefit thereof, the said sum of $5,457.50, with interest thereon at the rate of five per cent, per annum from February 15, 1909, * * * being preferential payments to said defendants, or either or both of them, within the purview of the acts of bankruptcy of 1898 and the amendments thereto.” To this second amended statement was attached an affidavit of an agent of plaintiff to the effect that the suit was “for the recovery of money only,” that the nature of plaintiff’s demand was “for money paid to said defendants as a preference,” and that there was due to plaintiff from the defendants, after allowing all just credits, etc., the sum of $5,457.50 with interest from February 15, 1909.
    The defendants filed separate affidavits of merits. The affidavit on behalf of the defendant Andrew J. Graham was made by an agent, Frank J. Graham, and it was therein admitted that said Jones paid certain of his promissory notes within four months prior to March 23,1909, to said Andrew J. Graham, but it was stated that “all said payments were made to his (Graham’s) own use alone and not to the use of Breen & Kennedy,” and that this defendant (Graham) “had no knowledge of any facts charging this defendant with notice that said Jones was insolvent or that the payment of said notes would operate as a preference by the alleged bankrupt in favor of this defendant.” The affidavit of merits on behalf of Breen & Kennedy was made by the secretary of that corporation, and it was therein denied that said bankrupt paid any sums of money either directly to said defendant or to Andrew J. Graham for the use of said defendant within said four months prior to March 23, 1909, and denied that said defendant had any knowledge, or notice of any facts charging it with knowledge, that said Jones, when he paid said sums to said Graham, was insolvent or that "said payments would operate as a preference.
    The case was tried before a jury. It was stipulated that on March 23,1909, an involuntary petition in bankruptcy was filed in the United States District Court, for the Northern District of Illinois, against Minor T. Jones; that on that date his assets amounted to $4,305, and that his liabilities to 148 unsecured creditors amounted to $136,915; that on April 24, 1909, he was adjudicated a bankrupt and that plaintiff was appointed trustee. The plaintiff called the bankrupt, Jones, as a witness, who testified that on January 15, 1909, he paid to Graham & Sons, out of his assets, a note for $1,000 with the accrued interest thereon, and that on February 15, 1909, he also paid to Graham & Sons, out of his assets, four notes for $1,000 each, with accrued interest thereon, and that the total sum paid to take up said five notes was $5,437.50. It was shown that at the time of the making of said payment Jones was in fact insolvent. Plaintiff, to sustain the allegations of its second amended statement of claim that at the time of said payments the defendant Graham or the defendant Breen & Kennedy, or both, had knowledge that Jones was insolvent and that said payments would necessarily operate as a preference in favor of both defendants, or whichever of them was the beneficial owner of said notes, examined Jones at considerable length, and also cross-examined under section 33 of the Municipal Court Act (J. & A. If 3345) the defendant Andrew J. Graham and A. B. Gillespie, secretary of Breen & Kennedy, and also called as witnesses two court stenographers who had reported the prior examinations had in the bankruptcy court of the defendant Graham and of Martin J. Breen, former president of Breen & Kennedy, who was dead at the time of the trial. The plaintiff also introduced certain documentary evidence. To avoid the necessity of plaintiff proving what percentage would be paid upon che claims of the general creditors, a stipulation was entered into to the effect that said payments on said notes would enable Ike person receiving them, or to be benefited thereby, to obtain a greater percentage of his debt than other creditors of the same class. At the close of plaintiff’s evidence each defendant presented a written motion that the court instruct the jury to find-the issues in favor of said defendant, which motions the court granted and instructed the jury accordingly. The jury returned a verdict finding the issues against plaintiff, and subsequently the court, after overruling a motion for a new trial, entered judgment against plaintiff for costs, which judgment plaintiff by this appeal seeks to reverse.
    From the evidence introduced by plaintiff the following facts, in substance, appear: Minor T. Jones had been conducting a large restaurant and bar on premises, known as 175 Jackson boulevard (old number) in the city of Chicago, owned by David B. Mayer, and of which premises Jones had a lease, dated June 1, 1906, and running to April 30, 1916. The lease provided that in case the premises should be rendered untenantable by fire the. lessor might terminate the lease, or repair the premises within thirty days, and failing to do so, or upon the destruction of the premises by fire, the term created should cease and determine. On the night of January 1, 1909, the restaurant was practically destroyed by fire, and Jones within a day or two moved to a nearby location, where until the filing of the bankruptcy petition he conducted a smaller restaurant, bar and cigar store. He testified that his landlord, Mayer, promised to repair the burned premises; that he (Jones) considered his leasehold worth about $50,000 and the good-will of his business worth about $25,000; that just prior to the fire the value of his stock of merchandise was about $7,000 and the equipment had cost him about $20,000; that he collected about $22,000 insurance on stock and equipment, about $16,000 of which was payable to and was paid to a Mr. Lenori of New York; that he expected to resume business at his old location when the premises were repaired, but that shortly before the filing of the petition in bankruptcy his landlord advised him that he would not repair the premises and had decided to cancel the lease. The defendant Breen & Kennedy was in the wholesale liquor business, and from time to time had sold merchandise to Jones on credit. About October 1,1907 (about fifteen months before the fire), Jones owed Breen & Kennedy approximately $22,000, which the latter was urging Jones to pay. The defendant Graham was then in the habit of taking his noonday lunch in Jones’ restaurant, and Jones told Graham that he wanted to borrow $20,000, in order to pay that sum to Breen & Kennedy, and after several interviews were had Graham agreed to loan Jones the money. Jones executed a series of twenty notes each for $1,000, dated October 1, 1907, payable to the order of himself and by him indorsed, and due at monthly intervals on the fifteenth day of the month, the last of which notes matured on June 15, 1909. Jones testified that he took the notes over to the bank of Graham & Sons and gave them to a teller, with instructions to credit the proceeds to Breen & Kennedy ; that he did not deliver to anyone any collateral or security on said notes, and that shortly after the delivery of the notes he received a statement from Breen & Kennedy crediting him with the sum of $20,000 and showing a balance due of about $2,000. No indorsement or guaranty of said notes was placed thereon by Breen & Kennedy. All of said notes which matured before the fire were paid by Jones as they became due. After the fire Jones paid the note maturing January 15, 1909, together with accrued interest, at Graham & Sons’ bank, partly out of the income received from the operation of said smaller restaurant and bar, and partly out of certain insurance money received. Some time in February Jones paid the note maturing February 15, 1909, and also paid three other notes, together with accrued interest, maturing in March, April and May, out of the insurance money received. Jones testified that he made these payments to the teller at the bank; that he did not have money enough to take up the last remaining note, maturing June 15, 1909; that" his object in making said January and February payments was to keep his credit good with Graham, as at that time he was expecting that the burned premises would be repaired and that he would there re-establish himself; that his object in paying the notes which had not yet matured was to stop the interest; and that after the fire he did not see or talk with Graham about his affairs.
    The defendant Andrew J. Graham testified that at the time he took the notes from Jones in October, 1907, he investigated the financial condition of Jones, the same as he-would any other customer; that he ascertained that Jones owed fib out $50,000 and that his assets were about $150,000; that he did not get from Jones a detailed statement of his liabilities; that he knew Jones owed Breen & Kennedy and that the money loaned was going to its credit; and that there was no legal liability on the part of Breen, & Kennedy on any of said series of notes. The witness produced a loose-leaf taken from a bills receivable ledger of his bank, showing the Jones account,—the debiting of the last fifteen of said notes, and the credit payments of fourteen of said notes. At the top of said leaf were the words “Account No. 2” and “Discounted for Minor T. Jones (B & K).” The witness stated that the words “Account No. 2” might refer to the fact that five of the twenty notes were sold to another bank and that account No. 1 might relate to those five notes. The witness also stated that he knew of no other significance to the memorandum “B & K” than that Breen & Kennedy got credit for the notes. The witness refused to "bring into the court the ledger from which said leaf was taken and certain other books of the bank, but it was agreed that counsel for plaintiff might examine said books at the bank, and the witness testified on the following morning that counsel had made such examination at the bank. The witness further testified that his bank had no book of record of guarantors, and that when notes were received from customers the notes themselves would show whether or not there was any secondary or guarantor’s liability.
    Frank M. Harker, a court reporter, testified that on November 5,1909, Martin J. Breen, president of Breen & Kennedy, was examined in the bankruptcy proceedings and that he (Harker) took down in shorthand the questions put to Breen and the answers given thereto. The witness read from his notes, showing that Breen then testified in part that in October, 1907, Breen & Kennedy got credit at Graham & Sons’ bank for $20,000 on said Jones’ notes; that said notes were not indorsed by Breen & Kennedy, nor did Breen & Kennedy guaranty the payment of said notes in any way; that he (Breen) never told Graham that he would see that said notes would be paid, or ever gave Graham a written guaranty or letter to that effect, and that neither he nor any officer of Breen & Kennedy ever entered into any agreement, written or oral, to hold Graham harmless on said notes; that Breen & Kennedy after October, 1907, continued to extend credit to Jones, and at the time of the filing of the bankruptcy petition Jones owed it on open account the sum of $22,794; that after the fire he had several talks with Jones about the latter continuing the business and getting the premises repaired; that he never asked Jones for security for or payment of said open account, hut let him go ahead and adjust his insurance, etc.; that he (Breen) left Chicago on January 23, 1909, and did not return until March 5,1909; and that the immediate cause of the filing of the bankruptcy petition by Breen & Kennedy and others was the change in Mayer’s attitude in regard to reinstating Jones in the premises on favorable terms.
    It appears from the testimony of Graham and of Gillespie, secretary of Breen & Kennedy, that after the death of Martin Breen in 1911 a settlement of all business affairs existing between Graham & Sons and Breen & Kennedy, and Martin Breen personally, was had; that at that time the last of said series of notes (the one maturing June 15, 1909, and which Jones did not pay) was turned over to Breen & Kennedy, and at the time of the trial this note was in its possession ; and that neither Breen & Kennedy nor Graham & Sons ever filed any claim therefor in the bankruptcy proceedings.
    Henry Horner and Lloyd C. Whitman, for appellant; Lloyd C. Whitman, of counsel.
    Ryan & Condon, for appellees; Irvin I. Livingston and Leon Lewis, of counsel.

       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.

Section 60a of the Bankruptcy Act provides, in substance, that a person shall be deemed to have given a preference if, being insolvent, he has within four months before the filing of the petition made a transfer of any of his property, and the effect of such transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Section 60b of said Act, in force in 1909, provides that “if the bankrupt shall have given a preference and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.”

The evidence introduced by the plaintiff (the trustee) in this case showed that the bankrupt, Jones, within four months before the filing of the involuntary petition in bankruptcy against him and while he was in fact insolvent, made two payments aggregating the sum of $5,437.50, out of his assets, to the defendant Andrew J. Graham, doing business as Graham & Sons, bankers, to take up five notes previously given by him, and it was stipulated, in substance, that the effect of such payments enabled Graham, or the person benefited, to obtain a greater percentage of his debt than other of Jones’ creditors of the same class.

Counsel for plaintiff contend, in substance, that the trial court erred in instructing the jury, at the close of plaintiff’s evidence, to find the issues in favor of both defendants and in entering judgment against the plaintiff, (1) because the evidence tended to prove that Jones gave a preference and that both Graham, who received the preference, and Breen & Kennedy, who was benefited thereby, had reasonable cause to believe that a preference was intended; and (2) because the action was one in tort, and the evidence tended to prove that Jones gave a preference and that either Graham or Breen & Kennedy had reasonable cause to believe that a preference was intended. As to the second contention, counsel state in their reply brief: “The question turns on the form of the action. If the action was an action in contract and this court is of the opinion that the appellant failed to make out a case against one appellee, this court will affirm the judgment of the trial court in favor of both appellees.”

In order to recover in this case, the trustee was required to prove by sufficient evidence not only that the bankrupt had made a payment which had the effect of a preference, as defined in said section 60a, but also that the defendants had reasonable cause to believe that a preference was intended. Debus v, Yates, 193 Fed. 427; Kimmerle v. Farr, 111 C. C. A. 27, 189 Fed. 295. When a debtor pays, and a creditor receives, the amount of a just debt, the natural presumptions are in favor of the good faith of the transaction, and the burden of proof to show that the creditor had reasonable cause to believe that a preference was intended is upon the trustee. Tumlin v. Bryan, 91 C. C. A. 200, 165 Fed. 166, 168; Getts v. Janesville Grocery Co., 163 Fed. 417,420; Chisholm v. First Nat. Bank of Leroy, 176 Ill. App. 382, 390. The creditor must have reasonable cause to believe (1) that the debtor was in fact insolvent and (2) that the debtor intended by the payment to give him a preference. Counsel for plaintiff contend that the test is whether the facts and circumstances within the knowledge of the creditor are sufficient to put him on inquiry to ascertain whether the debtor was insolvent and that the payment was intended as a preference. We do not so construe the act. In Blankenbaker v. Charleston State Bank, 111 Ill. App. 393, 394, it is said: “The creditor is bound only by the information he has at the time he receives payment and is not obliged to trace to the ultimate any suspicious circumstances that may exist within his knowledge, to ascertain whether such payment would be void within the law. Neither is it enough that a creditor has some cause to suspect that payment to him was intended as a preference.” See also Grant v. National Bank, 97 U. S. 80; Powell v. Gate City Bank, 178 Fed. 609, 617; Tumlin v. Bryan, supra. And the reasonable implication of the statute is that the debtor himself must have intended to give a preference. Tumlin v. Bryan, supra; In re First Nat. Bank of Louisville, 84 C. C. A. 16, 155 Fed. 100, 103; Hardy v. Gray, 75 C. C. A. 562, 144 Fed. 922, 925. And “a presumption of law that the debtor intended to give a preference does not arise from the fact alone that he knew himself to be insolvent. * * # It will often, if not generally, happen that a person, though in fact insolvent, will, while continuing his business in the usual way, make payments without a thought of disparagement of other creditors and with confidence in his ability to pay them all. * * * Neither is the creditor’s belief that' the debtor is insolvent in itself equivalent to a belief that he intends a preference. * * # The creditor * * * ‘may share in the confidence of his debtor, and may well suppose that the debtor while paying him his debt in the common course of business is acting without any purpose of giving special favor. ’ ” Kimmerle v. Farr, 111 C. C. A. 27, 189 Fed. 295, 300.

After a careful consideration of the evidence we are of the opinion that plaintiff did not sufficiently prove that when Jones made said payments to Graham in January and February, 1909, he. intended to give a preference, or that Graham, when he received those payments, had reasonable cause to believe that a preference was intended. Though Jones may have known he was insolvent at the timé, the evidence shows that when he made said payments he, relying on his landlord’s promise to rebuild the burned premises, expected to re-establish his former large restaurant business there, and wanted to keep his credit good with Graham and stop the running of interest on said notes. And the evidence does not tend to show that at the time of the receipt of said payments Graham, or any one connected with his bank, knew of Jones’ actual financial condition, or had made any investigation thereof subsequent to October, 1907. Indeed, the evidence shows that Graham did not personally see Jones or communicate with bim from the time of the fire until after the filing of the bankruptcy petition. The fact that Graham may have known that the February, 1909, payment included three notes not yet due is not conclusive that Graham had reasonable cause to believe that a preference was intended. Sparks v. Marsh, 177 Fed. 739, 743.

It is the law that an indorser or guarantor of a note of a bankrupt is a creditor within the meaning of section 60b of the Bankruptcy Act, so as to charge him with a preferential payment made to the holder of the note (Swarts v. Siegel, 54 C. C. A. 399, 117 Fed. 13; Paper v. Stern, 117 C. C. A. 346, 198 Fed. 642),. and that both the owner of the note and the indorser or guarantor may be charged for the receipt of a preferential payment made to the holder, but that only the amount by which the assets of the estate have thereby been depleted must be returned. In re George M. Hill Co., 64 C. C. A. 561, 130 Fed. 315, 318. Council for plaintiff, in substance, contend that the evidence showed that Breen & Kennedy was secondarily liable on said five notes which were paid to Graham, the holder, and that Breen & Kennedy was benefited by the preference given by Jones and had reasonable cause to believe that a preference was intended. We do not think that the evidence sufficiently proved either that Breen & Kennedy had reasonable cause to believe that a preference was intended or that Breen & Kennedy was secondarily liable on said notes. No indorsement or guaranty of Breen & Kennedy appeared on the notes, and according to the testimony of both Martin Breen and Graham there was no written agreement or oral promise made by Breen & Kennedy, or by Martin Breen individually in its behalf, to hold Graham harmless on the notes. It may be that Graham may have expected that Breen & Kennedy would make any loss thereon good, but it does not appear that Breen & Kennedy was under any legal liability to do so. Furthermore, it does not sufficiently appear that Breen & Kennedy advised, counseled or procured the payments to be made or that it had knowledge of the payments until after they had been made. Reber v. Shulman, 106 C. C. A. 110, 183 Fed. 564, 566.

And we are of the opinion that the action, as disclosed from plaintiff’s second amended statement of claim and upon which the case was tried, is one in contract and not in tort. The action was for the recovery of a certain sum of money, with interest thereon from a certain named date. In Walter Cabinet Co. v. Russell, 250 Ill. 416, 420, it is said: “The object of the rules requiring statements of claim and of set-off is to inform the parties of the nature of the respective claims, and * * * It is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement.” Furthermore, the case appears to have been tried upon the theory that it was an action in contract, and the plaintiff should not be heard to say in this court that the action was one in tort. “A party is bound, in the Appellate Court, as to the nature and form of the action, by the theory on which it was tried. Thus, where a cause has been tried upon the theory that it is an action in tort, and not in contract, that theory will govern the cause in the Appellate Court.” 2 Cyc. 671. This being an action in contract against two defendants, plaintiff was required to prove a cause of action against both. Griffith v. Furry, 30 Ill. 251, 255; Cassady v. Trustees of Schools, 105 Ill. 560, 565; M. W. Powell Co. v. Finn, 198 Ill. 567, 569. This, in our opinion, plaintiff did not do..

And we do not think that the trial court committed any prejudicial error in rulings on evidence, as contended by counsel.

The judgment of the Municipal Court is affirmed.

Affirmed.