text:
    Mary Mulcare and George D. Steuart, Administrators, Plaintiffs in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 17,033.
    Municipal corporations — contracts, burden of proof. Where in an action against a city for sums earned under a contract for the removal of garbage, providing for a penalty for each neglect or refusal to -properly collect garbage or ashes, there was a stipulation showing verified reports of such failures by garbage inspectors, the plaintiff had the burden of contradicting the verity of such reports to show a complete performance and sustain a recovery.
    Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    John W. Walsh, for plaintiffs in error.
    William H. Sexton and William K. Otis, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This suit was brought to recover of the City of Chicago for what was claimed to be unwarranted deductions from the total contract price for the removal of garbage and ashes in certain specified districts of the city during January and February, 1898, under a so-called supplemental contract therefor, made with Patrick Muleare.

A contract had already been entered into between the same parties for the removal of such material from the same districts, which was to go into effect March 1, 1898, and which provided for certain sanitary methods of removal and disposal set forth in specifications that were made part of the contract. Said contract contained this provision;

“It is also expressly agreed and understood that for each verified failure or neglect to collect the garbage in a proper, sanitary manner as prescribed in this contract and the said specifications, and for each and every individual instance of neglect or refusal to properly collect the said garbage and ashes according to the terms hereof, the sum of one ($1) dollar shall be deducted from the moneys owing, or to become due to the party of the .first part. The commissioner of public works shall be the sole judge of the sufficiency of the verification of such failure, which verification may be made by the report of any inspector of the city.”

The city inspectors reported, to the commissioner of public works in writing 2,179 individual instances in one district, and 4,132 in another, of failure and neglect to collect garbage and ashes during the months referred to, and at the expiration of the term of said supplemental contract the city paid Mulcare the contract price less an amount equal to as many dollars as the aggregate number of said reported failures.

Said supplemeutal contract provided that in the collection and removal of garbage and ashes, all the terms of the principal agreement shall apply as far as the same can be made applicable. It is contended that a proper construction of the agreement between them limits the penalties aforesaid to the neglect and failure to remove said materials in accordance with the sanitary methods that were to be installed on March 1, 1898, and hence the provision is not applicable to the supplemental contract. We do not so construe their agreement. But if we did, the manifest failure of plaintiffs, upon whom rested the burden of proof, to show that the contract had been fully performed on the part of Mulcare, was sufficient tc defeat recovery, and justified the court, to whom the case was submitted without . jury, to refuse plaintiffs ’ request for a propositic f law to the effect that plaintiffs were entitled to r^'^'er on the supplemental contract, and for a finding of fact that Mnlcare had fully performed such contract.

The only evidence relating to performance was the stipulation that “upon January 1, 1898, Patrick Huleare entered upon the performance of said supple^ mental contract and continued in the performance thereof by collecting and removing garbage and ashes from the said * * * districts during said months of January and February, 1898.” This was far from conceding a full compliance and performance, especially when in the same stipulation it was agreed that said reports of failure were duly made by inspectors to the commissioner of public works; that he was to be the sole judge of the sufficiency of the verification of said failures and that the city acted thereon in withholding payment. Regardless of whether the commissioner’s judgment was final as to the fact of such failures, the facts stipulated to put plaintiffs to the necessity of contradicting the verity of such reports in order to show a complete performance.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Nellie Carlin, Administratrix, Appellee, v. Peter F. Deahl and U. Samuel Deahl, Appellants.
    Gen. No. 17,108.
    1. Negligence — sufficiency of evidence to support verdict. In an action for the death of a child struck by a wagon, in which there was a verdict for the plaintiff, evidence held to sustain a finding that the defendant’s driver was guilty of common-law negligence.
    2. Death — assessment of damages. In an action for the death of a child, instructions which related to the measure of damages, stating the doctrine that as to collateral kin no more than nominal damages might be allowed unless it appears from the evidence that they suffered pecuniary loss and that when suit is brought on behalf of collateral kin some evidence of that character is necessary, were properly refused as ignoring the rights of parents, who were among the next of kin.
    3. Death — damages for death of child. A jury in assessing damages for the death of a child is nc confined to the pecuniary value of the services of the deceased antil it should arrive at the age of eighteen, but may consider * j.& pecuniary benefit which the next of kin might derive from it at any age of life had there been no accident.
    4. Appeal and eeboe — harmless error. In an action for death of a child, an instruction that the jury might consider the pecuniary benefit which the next of kin might have derived at any age of the child’s life had she lived was not prejudicial though the persons for whose benefit the suit was brought included, in addition to parents, collateral relations as to whom no pecuniary loss was shown, where the damages assessed were less than those allowed in similar cases brought for the benefit of parents alone, as to whom no such proof is required.
    5. Tbial — instructions. In an action for the death of a child, the court properly refused an instruction requested by the defendants to the effect that the defendant’s driver was not required to be on guard against the unusual, extraordinary and not reasonably to be expected, where another instruction told the jury that there could be no recovery unless they found from the evidence that the driver was negligent, and none if the child ran under the horse as claimed by the defendants.
    Appeal from the Superior Court of Cook county; the Hon. Theodoee Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 1, 1912.
    Robert S. Iles and Robert D. Martin, for appellants.
    Bernard P. Barasa, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The declaration in this case avers that a child sis years old was killed by the negligence of appellants’ servant while driving a horse and wagon. The case went to the jury on two counts — the first alleging common-law negligence, and the other alleging a violation of a city ordinance limiting the speed of vehicles around a street corner to four miles an hour. Appellants’ main contentions are that the evidence is insufficient to sustain either count, and that there was error in giving and refusing to give certain instructions relating to the measure of damages.

The child was killed in an accident on Oak street within a few feet west of the southwest corner of its intersection with Milton street. The team was driven north on Milton street around said southwest corner to the west on Oak. There were about twenty-five children on the street at the time. There is much conflict in the testimony as to the details. Three witnesses on each side gave their versions of the accident. Appellants’ witnesses testified that the team was driven slowly; that the driver checked his horse and warned the child as it was crossing the street to the north; that the child stopped and suddenly ran back between the horse’s legs shortly after the team started up again. Appellee’s witnesses testified that the horse was driven fast; that they heard no warning ; that the driver at ‘the time was engaged in talking to a companion on the seat with him; that the child was crossing the street from the north side and was run into and knocked down by the horse and run over by the wagon. Such a state of testimony presents a case peculiarly within the province of a jury to determine where the truth lies. In the absence of any impeaching testimony or inherent improbability of the facts testified to, we cannot say on such a record that the jury, which saw and heard the witnesses and had a better opportunity to determine their reliability and credibility than we have, were not justified in finding the driver negligent under the first count. The evidence on the rate of speed, however, hardly supports the other count. •

The refused instructions aforesaid, relating to the measure of damages, sought to apply the well-settled doctrine in such cases that, as to collateral kin, no more than nominal damages will be allowed unless it appears from the evidence that they suffered pecuniary loss, and when suit is brought on behalf of collateral kin, some evidence of that character is necessary. Rhoads v. C. & A. R. R. Co., 227 Ill. 328. But the next of kin in this case included parents, brothers and sisters. The instructions ignored the right of the parents; for that reason they were properly refused. B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535.

It is also urged that it was error to give the instruction to the effect that the jury in assessing damages were not confined to the pecuniary value of the services of the deceased child until she should arrive at the age of eighteen years, but might consider the pecuniary benefit which the next of kin might derive from her at any age of her life if she had not been killed. This instruction, in practically the same form, has been frequently approved in suits of similar character. U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531; No. Chi. St. R. R. Co. v. Johnson, 205 Ill. 32; B. & O. S. W. Ry. Co. v. Then, supra. We do not think that because the kin in whose behalf the suit was brought included collateral relations as to whom no pecuniary loss was shown, such instruction was prejudicial in view of the fact that it was also brought for the benefit of parents and that the damages assessed, viz: $1,200, were much less than those allowed in many similar cases brought for the benefit of parents alone, as to whom no such proof is required. O. & M. Ry. Co. v. Wangelin, 152 Ill. 138; Chi. & A. Ry. Co. v. Shannon, 43 Ill. 338.

The court refused to give an instruction to the effect that the driver was not required to be on guard against the unusual, extraordinary and not reasonably to be expected. The jury having been told in another instruction that there could be no recovery unless they found from the evidence that the driver was negligent, and none if the child ran under the horse as claimed by appellants, we do not think appellants were injured by the refusal to give such instruction.

The judgment is affirmed.

Affirmed.


text:
    Charles H. Schimelfenig et al., Appellants, v. Grace L. Howell, Appellee.
    Gen. No. 17,129.
    Landloed and tenant — forfeiture Toy breach of covenant to pay taxes. Equity will not relieve from a forfeiture incurred by a breach of a covenant to pay taxes where the property has been sold therefor as the covenant can no longer be performed.
    Appeal from the Superior Court of Cook: county; the Hon. Fabian Q. Bale, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 1, 1912.
    Colson & Johnson, Fred Plotke and Frederick Taylor, for appellants.
    Ossian Cameron and Frank Johnston, Jr., for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a decree dissolving a temporary injunction, and dismissing the bill on demurrer for want of equity.

The bill was filed by certain owners of a leasehold interest in real estate to prevent the landlord from enforcing a forfeiture of the lease and from prosecuting a pending action of forcible detainer for the recovery of the premises.

Among the covenants of the lease was an agreement of the lessees to pay the taxes. The premises were sold September 17, 1909, for failure to pay the general taxes for the year 1908, and were redeemed from said sale by appellee, the owner, October 4, 1909.

The sole question involved is whether in such a case, in the absence of any special circumstances of fraud, accident or mistake, a court of equity will relieve against a forfeiture incurred by the breach of a covenant to pay taxes after the property has been sold therefor.

It is contended that the right to relief from forfeiture in such a case is not different im principle from a right to equitable relief in case of a breach of a covenant to pay rent — from a forfeiture for which a court of equity will, in the absence of bad faith, when the damages can readily be ascertained, grant relief upon the making of full compensation. Sheets v. Selden, 7 Wall. 416. And such has been the holding in. eases where the property had not gone to sale for taxes. Noyes v. Anderson, 124 N. Y. 175; Tibbetts v. Cate, 66 N. H. 550. And the principle has been applied when the property was sold and redeemed from such' sale by the lesseé before he applied for equitable relief. Giles v. Austin, 62 N. Y. 486. The general principle upon which the court of equity granted relief in the cases cited was that “the rent is the object of the parties, and the forfeiture only an incident intended to secure its payment; that the measure of damages is fixed and certain, and that when the principal and interest are paid the compensation is complete.” Sheets v. Selden, supra.

But in the case of Kann v. King, 204 U. S. 43, and in the case of Gordon v. Richardson, 185 Mass. 492, the premises, as in the case at bar, had been sold for taxes, and in each case relief from forfeiture of' the lease for breach of covenant to pay taxes was denied.

In the Kann case, supra, the court says: “When the foundation upon -winch the doctrine is based is borne in mind, it becomes apparent that it affords no ground for the contention that it is applicable to a case where the failure to perform a covenant to pay taxes has led to a tax sale, ripening into a prima facie irredeemable title held adversely to the lessor. In other words, the doctrine lends no support to the proposition that a court of equity can require an owner to risk the loss of his property by compelling him to engage in a contest involving the validity of an irredeemable tax sale, for the purpose of endowing the tenant with the right, if the tax sale be held invalid, to pay the taxes, and thus be relieved of a forfeiture.” (p. 55).

In the Gordon case, supra, the court says: “The thing here in question secured by the right of re-entry not only has not been performed, but it cannot be performed now. The tax * * * has been paid and no longer can be paid by the plaintiff. The tax was paid to the collector by the application thereto of the proceeds of the tax sale. There is a right to redeem this tax title, but the tax has been paid, and the thing secured by the landlord’s right of re-entry can no longer be performed by the tenant. By the very terms of the covenant secured by the forfeiture, any performance of it is at an end, and that is the end of plaintiff’s application for relief from the forfeiture in the case at bar.”

These cases seem to us conclusive in their reasoning of the right to the relief prayed for in the case at bar. If a lessee who has covenanted to pay the taxes may stand by and see his landlord’s property sold for nonpayment of taxes and thereafter claim relief from forfeiture on the theory that it will yield to the principle of compensation regardless of his culpability and the trouble and litigation to which the landlord may have been put to save his title, then there would appear to be no time before the landlord actually loses his title when the lessee may not have relief if the landlord’s expenses and damages can be ascertained and are tendered.

We are disposed to accept the doctrine laid down in the Gordon case, supra, that after the sale the covenant to pay taxes cannot be performed. Furthermore, we consider it inexcusable neglect for a lessee who obligates himself to pay his landlord’s taxes, to permit the property to go to sale and thus subject the landlord to the trouble and danger such a situation entails, where, as in the case at bar, the only excuse offered for failure to pay the taxes is that one of the lessees relied upon an arrangement with another nonresident lessee to pay the same.

The decree will be affirmed.

Affirmed.


text:
    George Ungar and Max Zwiebel, Trading as Ungar & Zwiebel, Defendants in Error, v. Ignatz Feuer, Plaintiff in Error.
    Gen. No. 17,202.

      Judgment — default as admission of amount of damages. Under Practice Act, § 57, a defendant who, on entering his appearance, filed a written demand for a trial by jury and paid the fees, became entitled to have his damages assessed by a jury, even though he was in default. A default does not admit the amount of damages.
    Error to the Municipal Court of Chicago; the Hon. William N. •Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    Charles Wolff, for plaintiff in error.
    Elbert C. Ferguson, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error was sued for the price of goods sold and delivered. His amended affidavit of merits or defense having been stricken from the files, default was taken for want of an affidavit of merits, and the court, without a jury, assessed the damages upon the plaintiff’s affidavit of clainr..

At the time of entering his appearance plaintiff in error filed a demand in writing for a trial by jury, and paid the necessary fees therefor. The default did not-admit the amount of damages. Wanack v. People, 187 Ill. 116; C. & St. L. Ry. Co. v. Holbrook, 72 Ill. 419; Cook v. Skelton, 20 Ill. 107. Under Section 57 of the Practice Act he was entitled, after such demand and payment of fees, to have the damages assessed by a jury. Pinkel v. Domestic Sewing Machine Co., 89 Ill. 277; Electric Co. v. Manf. Co., 111 Ill. 309; Loellke v. Grant, 120 Ill. App. 74.

Whether or not we may take judicial notice that such section is made a part of the rules of the Municipal Court, we may so regard it inasmuch as it is assumed and treated as such by both parties in their briefs. Therefore, for failure to comply with the imperative requirements of the statute as aforesaid, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice F. A. Smith

text:
    Booth Fisheries Company, Plaintiff in Error, v. Jacob Rehm, alias Jack Rehm, Defendant in Error.
    Gen. No. 17,209.

      Contract — evidence in action on. In an action on contract to recover money advanced, evidence held to show that the money was given the defendant as a gift or gratuity rather than under an arrangement to repay..
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Max H. Whitney and George A. Kelly, of counsel.
    No appearance for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error to the Municipal Court brings before us an action of the fourth class in contract, brought by plaintiff in error to recover from defendant in error, Eehm, the sum of $984, which sum was shown to have been advanced to Eehm in part by the Chlopeck Branch of the Booth Fisheries Company, and in part by J. J. Chambers as receiver of A. Booth & Company.

It appears that Jacob Eehm, alias Jack Eehm, an employee at Chlopeck Brothers branch of plaintiff in error, was hurt at their factory on Sunday, March 21, 1909. He was taken to the Alexian Brothers Hospital, where he remained for some time, suffering from a broken arm; he was not able to work for some time after leaving the hospital; he testified that he did not work for fourteen months after the injury.

The jury found in favor of defendant in error, and plaintiff in error urges reversal of the judgment upon the following grounds: The verdict was manifestly against the weight of the evidence; appellee’s counsel made improper remarks in his closing arguments to the jury; and the court erred in overruling appellant’s motion for a new trial.

Defendant in error admits that he received some money from the plaintiff in error, and that certain sums were paid to the hospital direct for his expenses; he denies, however, that he agreed to reimburse his employers for the moneys advanced. The only question in the case is whether the money was given by plaintiff in error as a gift or gratuity, or whether defendant in error had agreed to repay the money thus advanced. The jury found in favor of defendant, and, after a careful consideration of the evidence, we are unable to say that the verdict is against the weight of the evidence. The judgment is, therefore, affirmed.

Affirmed.


text:
    S. F. Sayrs, Defendant in Error, v. E. F. Thompson, Plaintiff in Error.
    Gen. No. 17,221.
    Landlord and tenant — reimbursement of tenant for repairs. Where a tenant liad no agreement either with his landlord or the latter’s grantor for reimbursement for sums spent in repairs he is not entitled to be repaid sums so spent during the term of the lease.
    Error to the Municipal Court of Chicago; the Hon. John H. Gillen, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Rehearing denied and opinion modified and refiled October 15, 1912.
    Thompson & Clark, for plaintiff in error.
    M. B. Waltz, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a suit in forcible detainer united with a claim for rent under Section 48 of the Municipal Court Act. A judgment was given for possession and $175 accrued rent.

Plaintiff in error claimed a set-off for the value of improvements made by him several years prior to the purchase of the premises by defendant in error, but. had paid the latter rent for nearly four years before the suit was brought.

It is well settled as a general rule that a landlord is under no obligation to pay the tenant for improvements made during the term of a lease in the absence of an agreement to that effect, and none was shown in this case, either with defendant in error or his grantor. Bedford v. Bedford, 136 Ill. 354; Diederich v. Rose, 228 Ill. 610.

The judgment will be affirmed.

Affirmed.


text:
    Abraham Abramovitz, a minor, by Meyer Abramovitz, his next friend, Plaintiff in Error, v. Chicago City Railway Co., Defendant in Error.
    Gen. No. 17,245.
    1. Negligence — questions for jury. In an action for injuries to a boy struck by a crowbar, whether the defendant’s employe handled the bar in a negligent and unskilful manner, held, under the evidence, properly submitted to the jury.
    2. Negligence — instruction. In an action for injuries to a boy struck by a crowbar, an instruction that the burden of proof was not upon the defendant to show that it was not guilty of the specific negligence charged in the declaration but upon the plaintiff to prove the defendant guilty was not misleading.
    3. Negligence — burden of proof. In an action for injuries from negligence, the burden resting on the plaintiff to prove the specific negligence charged in the declaration does not shift.

      Error to the Superior Court of Cook county; the Hon. Makcus A. Kavanagii, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Adler & Lederer, for plaintiff in error.
    John E. Kehoe and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This case was submitted to the jury on plaintiff’s evidence, and the verdict was for defendant. The record presents two questions for our consideration: (1) whether the verdict was against the weight of the evidence, and (2) whether there was error in giving an instruction relating to the burden of proof.

Plaintiff in error, a minor eleven years old, while standing on a public sidewalk, was struck and injured by a crowbar which, in some manner, flew out of the hands of one or more agents of the defendant company while they were moving a steel rail in the street toward the curb. The negligence charged in the first count of the declaration is that one of defendant’s servants conducted himself so negligently and unskilfully that the crowbar slipped from his hands; in the second count, ■ that the defendant provided its said servant with a crowbar of insufficient strength so that it broke and slipped from his hands; and in the third count, that the defendant employed a person insufficiently skilful in the use of a crowbar.

The four witnesses who observed the accident, including the boy himself, differed as to whether one or more persons had hold of the crowbar. Their evidence tended to show that the rail was being moved by the use of crowbars toward the curb; tliat one of the crowbars flew up, as the rail was turned, out of the hands of one or more men, and hit the boy. Just how the accident happened or what caused it did not appear. The first witness, a woman, thought several men had hold of the crowbar and that suddenly it slipped some way and flew over and hit this boy; she saw the men trying to move the rail, but how she could not tell. The next witness, a boy, said, “The laborers had their crowbars into the holes on each end of the rail. The rail went over and the crowbar in one of the laborer’s hands slipped and it went over and struck this boy.” He did not know whether more than one man had hold of that crowbar. The third witness, a man, testified that the men used crowbars in turning over the rail; that they stuck the crowbar, in one of the holes; that when this rail rolled over, it threw the bar and struck the boy, and that only one man had hold of the bar at the time of the accident. He further testified that as the rail was going over it took the crowbar with it; and again, that in going over, it struck the crowbar in the hands of the man that had it; and again, that as it turned over, it flew in the air and struck the crowbar out of the hands of the man that held it and struck the boy. He also said he saw the man handling the crowbar put it in the hole and begin to turn over the rail, and that that was when the bar got away from him.

It is a little difficult to reconcile these several statements, but none of them, standing by itself, nor all together, seem to us, as contended by plaintiff in error, to make a prima facie case of negligence, especially the specific negligence alleged. Both the question of negligence and of the exercise of ordinary care by the boy were, under the instructions bearing thereon, of which no complaint is made except as hereinafter referred to, properly submitted to the jury, and we are unable to say that their finding is not justified by the record. In the absence of a description and size of the hole in the rail, and of the crowbar, or of any other circumstance that would throw light upon the manner of using it, it cannot be said that it was negligence per se to insert the crowbar in the hole, and it is mainly from that fact that the inference of negligence is sought to be drawn.

The instruction complained of told the jury that the burden of proof was not upon the defendant to show that it was not guilty of the specific negligence charged in the declaration, but upon the plaintiff to prove the defendant guilty. Such instruction was not misleading, especially in view of all the instructions given. As a matter of law the burden of proof never shifts. Chi. Un. Tr. Co. v. Mee, 218 Ill. 9.

The verdict of the jury and judgment will not be disturbed.

Affirmed.


text:
    C. N. Woodard, Trading as The Oak Street Stables, Defendant in Error, v. Angldile Computing Scale Company, Plaintiff in Error.
    Gen. No. 17,283.
    1. Appeal and error — presumptions as to court's action. In tbe absence of a contrary showing it will be presumed on appeal that the Municipal Court heard such evidence as it deemed sufficient for the assessment of damages as required by Municipal Court Act, §43.
    2. Process — service on corporations. R. S. c. 110, § 8, which provides that service on an agent of a corporation found in the county is good, applies to both foreign and domestic corporations.
    3. Judgment — vacation of default. There was no abuse of the court’s discretion in denying a motion to vacate a default, where the default was entered twelve days after the issuance of summons and no steps were taken by the defendant to enter an appearance or file an affidavit of merits until the time specified in the summons under Municipal Court Act, § 41, at which time the defendant’s agent was delayed by crowds and insufficient elevator services arriving five minutes late, as there was no showing of diligence.

      Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Jacob Katz, for plaintiff in error; Harry H. Krinsky, of counsel.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Three errors are assigned. The first is that the judgment was entered upon an affidavit of claim without hearing evidence thereon. In the absence of a showing to the contrary, it will be presumed the court did its duty and heard such evidence as it deemed sufficient to assess the damages, as under Section 43 of the Municipal Court Act it is required to do even in case of default.

The second error assigned is the denying of defendant’s motion to vacate the judgment and quash the summons. The contention is that the service of summons made on a local sales agent of the defendant, which is a foreign corporation, was not good, but that it should have been served on the agent designated for that purpose by the company, under the act regulating the admission of foreign corporations to do business in this state. Under the statute relating to service on corporations, service on any agent of the company found in the county is good, (Chap. 110, Sec. 8, R. S. 1911), and such statute applies to all corporations, foreign as well as domestic, and is not inconsistent with the act aforesaid.

The third error, assigned, and the only one argued, is that the court erred in denying the motion to vacate the judgment and- grant a new trial on the merits. The motion is supported by affidavits showing a meritorious defense, and by an affidavit of said sales agent to the effect that he arrived in court five minutes after 9:30 a. m., the time specified in the summons as required by Section 41 of the Municipal Court Act, and found that judgment had been entered; that he reached the court building three or four minutes before 9:30, but was delayed by the crowded condition of the building and insufficient service of the elevators.

While a meritorious defense was set forth, yet the excuse given by defendant’s agent, for his failure to appear at the appointed hour, does not show the exercise of due diligence to reach the court at the specified time. It was his duty to provide against conditions not shown to be unusual that might tend to prevent his reaching the court at the required time. The summons was served November 11th, and the judgment entered November 23rd. No steps were taken by defendant after service to enter appearance or to file an affidavit of merits. It waited until the very last minute to take any such step. It did not show due diligence, and the court’s discretion in denying the motion to vacate was not abused:

The judgment is affirmed.

Affirmed.


text:
    M. H. Elliott and Nelson A. Pearson, Trading as Elliott & Pearson, Defendants in Error, v. Mansel B. Greene, Plaintiff in Error.
    Gen. No. 17,301.
    Appeal and error — presumption as to court’s action. In the absence of a contrary showing it will be presumed on appeal that the lower court proceeded regularly and set the cause for trial at the time of the defendant’s appearance as authorized by Municipal Court Act, § 45.

      Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Clair D. Vallette, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The only ground urged for reversal is that this being a case of the fourth class it was imperative on the court to set it down for trial, and that no order of record to that effect appears.

The record shows that defendant entered his appearance December 6th, the return day of the summons, and that judgment was entered on December 17th. The judgment order recites that the cause came up in the regular course for trial, and that defendant was absent and not represented — presumably meaning at the trial. There is nothing to show that the court did not proceed regularly, and, in the absence of a showing to the contrary, the presumption is that it did, and that it set the cause for trial at the time of defendant’s appearance, as it might do under Section 45 of the Municipal Court Act.

Judgment is affirmed.

Affirmed.


text:
    George W. Ellis, Plaintiff in Error, v. The Chicago Safe & Merchandise Co., Defendant in Error.
    Gen. No. 17,318.

      Sales — damages on breach of contract. Where furniture was sold on a contract of sale and was held under a landlord’s lien and the seller assigned the contract of the purchaser and agreed to deliver the goods if possession could be obtained without litigation, the buyer, on a failure to deliver, could recover only a sum advanced for drayage and not amounts paid for the interest of a transferee of the original purchaser and for rent of a room rented in anticipation of receiving the furniture.
    Error to the Municipal Court of Chicago; the Hon. John Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Charles A. Ward, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff’s statement of claim alleged a sale and agreement to deliver to him furniture valued at $65, and claimed damages for failure to deliver the same.

Defendant had delivered the furniture to one Malone on a written contract of sale to him; the latter had parted with his interest and given possession of the goods to one Marshall, who had mortgaged them and who, at the time of the trial, was nnder arrest, and his landlord was holding the property under a landlord’s lien. Five dollars were still due defendant on his contract of sale.

With knowledge of such circumstances, the parties to the case entered into an arrangement which plaintiff claims was a re-sale of the furniture to him on the payment of said balance of $5, and an agreement to transport it back to defendant’s store for $5 additional also paid defendant. Defendant admits tbe payments aforesaid, but claims that he merely assigned Malone’s contract to plaintiff and agreed to deliver tbe goods only on condition that be conld get possession of them without litigation. Tbe main fact in controversy was whether tbe agreement to deliver was unconditional. On tbe evidence received, tbe court found tbe defendant was liable only for tbe $5 advanced to him for dray-age, and we see no reason for disturbing such finding.

It is urged that tbe plaintiff should have been permitted to prove as damages what be bad paid for Marshall’s interest and for rent of a room in anticipation of receiving tbe furniture from defendant, and that tbe court should have allowed him to amend bis claim to include such items. Regardless of tbe propriety of tbe court’s ruling in refusing, leave to amend bis statement of claim, proof of such items was not admissible on tbe question of damages. Tbe court evidently accepted defendant’s version of tbe transaction, namely, that defendant parted with bis title, leaving tbe plaintiff in tbe position of Malone, or bis alleged assignee, Marshall, to assert such right as be bad to possession of tbe goods which defendant only conditionally agreed to regain. Under such a construction of tbe contract there is no liability on tbe part of tbe defendant except to return tbe money advanced for drayage.

Tbe judgment will be affirmed.

Affirmed.


text:
    Paul Bohlander, Defendant in Error, v. John Oshinski, Plaintiff in Error.
    Gen. No. 17,342.

      Contracts — consideration. One who had transferred his interest in premises to another had thereafter no title to improvements and an agreement by a later purchaser to pay him for such improvements was without consideration.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed October 1, 1912.
    Harry C. Leemon, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

In his amended statement of claim, the plaintiff, Bohlander, claimed a balance of $85 due from Oshinski, plaintiff in error, “for the purchase price of furniture, $15, and for $100 for sale of house and improvements thereon,” alleging $30 was paid thereon prior to suit.

Oshinski’s affidavit of merits admitted the payment of $30, but alleged it was for articles bought of plaintiff, and denied owing plaintiff any sum. The court’s finding and judgment was for plaintiff in the sum of $85.

From the certified statement of facts it appears that Bohlander made a contract to purchase of one Hiss a certain house and lot, on which he paid $450. He was given possession of the same and made some improvements thereon which, from their nature, became attached to the realty. Subsequently, he surrendered to Hiss his contract and the possession he acquired thereunder and took in exchange a vacant lot. At or about the same time of such exchange, Oshinski made a contract to purchase said premises from Hiss, paid him $150 thereon, and took possession thereof. Coincident with the transaction or a little later, Oshinski bought of Bohlander some personal property on the premises, and claims that the $30 paid to-Bohlander was entirely for such personal property, while Bohlander claims that $15 of it was part payment on a verbal agreement between them that Oshinski should pay him $100 for said improvements. Oshinski denied making any such agreement and claims that if made it comes within the statute of frauds. It is unnecessary to consider either contention because the title to the realty (which included the improvements aforesaid) was at all times in Hiss, and whatever right Bohlander had to said premises was surrendered with his contract to Hiss. He manifestly had no title to the improvements to give. If therefore such a contract as he claims was entered into between him and Oshinski, and the same were otherwise legal, there was no consideration to support it.

Judgment of the court below will, therefore, be reversed.

Reversed.


text:
    Mary J. Van Sickle, Plaintiff in Error, v. Henry Harmeyer, alias William L. Allen et al., Defendants in Error.
    Gen. No. 16,736.
    1. Judgment — vacation to prejudice of tona fide holder. An entry in satisfaction of a judgment -will not be vacated to tbe prejudice of a bona fide purchaser of property who became such while the judgment appeared of record to be satisfied and discharged.
    2. Moetgages — acts of mortgagor as affecting mortgagees’s right to foreclose. Promises of a transferor of property to a transferee that he would pay the interest on a loan thereon and aid such) transferee in securing a new loan or an extension of the old one will not affect the mortgagee’s right to foreclose.
    3. Mortgages — effect of foreclosure decree. Previous promises made a transferee of mortgaged premises by the transferor will not affect the title obtained in foreclosure proceedings, as all such matters were determined and settled by the decree.
    4. Vendor and purchaser — effect of bona fide purchase. One who purchased property for full value from the record owner without notice that another either had or claimed any interest therein, and who used the property for his own personal use, is a purchaser in good faith without notice and is entitled to have his title fully protected even though another than the vendor was guilty of fraud in his dealings with his divorced wife in respect to such property.
    5. Judgment — lis pendens. Pendency of a motion made in original divorce proceedings to set aside a settlement decree will not operate as a lis pendens or a constructive notice for the reason that the court had no jurisdiction therein to hear and determine the motion.
    6. Mortgages — effect of foreclosure. One who is a party to foreclosure proceedings is bound by the decrees, sales and deeds issued thereunder, and is thereafter a stranger to the title.
    7. Judgment — setting aside consent decree. In an action to set aside a consent decree, evidence held not to show a conspiracy among certain defendants to defraud the plaintiff.
    8. Deeds — right to prove consideration by parol. That the express consideration in a deed is one dollar will not cast suspicion of fraud on the transaction, as the true consideration, though different from that expressed, may be shown by parol.
    9. Trusts — cestuis que trust as necessary parties to action affecting the res. Where the answer in a suit to set aside a consent decree disclosed that property held in trust was affected, and the bill was not amended to make the cestuis que trust parties, no relief was warranted against either the property or the holders of the equitable title.
    10. Laches — right to set aside consent decree. Where a consent decree, modifying an original decree for divorce and alimony and releasing the payment of alimony in consideration of the transfer of certain property, was allowed to remain undisturbed •for four years, during which time mortgages on the property were foreclosed in actions to which the divorced wife was a party and she knew for three years that her former husband was not carrying out alleged promises to redeem, pay taxes, etc., she is estopped by her laches from relief in an action to set aside the consent decree as against defendants who purchased the property from the holder of the master’s deed.

      11. Laches — duty on discovery of fraud. Where a party discovers fraud it is his duty to act with great promptness to dis-affirm the transaction.
    12. Trusts — existence of fiduciary relationship. Whether there was a fiduciary relation existing between parties to a transaction will depend upon all the facts and circumstances of the particular case.
    13. Divorce — fiduciary relation of husband and wife. There was no fiduciary relation existing between a husband and wife which would invalidate a consent decree superseding a decree for alimony for the fraud of the husband where the parties had been divorced for a year, during which time the wife had instituted several proceedings to collect alimony and constantly employed a solicitor to look after her interests.
    14. Judgment — waiver of objection by accepting benefits. Where a party to a consent decree, replacing a decree for alimony and providing for the transfer to her by her former husband of certain property in lieu of alimony, accepted benefits of decree and retained the property, there was a waiver of objection to- the decree.
    15. Judgment — offer to return as condition to vacation of consent decree. Where a decree was entered in pursuance of a compromise settlement between the parties, one of them who enjoyed the avails of the settlement with full knowledge of the facts could not have it vacated without an offer in the bill to return everything received pursuant to the agreement.
    16. Contracts — equitable relief against judgment. The making of promises to induce the making of a contract or entry of a judgment, which are not kept, will not sustain a bill to set aside the contract or decree.
    17. Fraud — promises as basis of action. Though, to induce his former wife’s consent to the entry of a decree releasing the payment of alimony provided for by the decree of divorce, a husband made promises and agreements to pay taxes, satisfy mortgages, etc., which he did not intend at the time to perform, his acts will not constitute ground for an action of fraud at law or for equitable relief.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Statement by the Court. This case is before us upon writ of error to the Circuit Court of Cook county. On April 5, 1906, plaintiff in error, complainant in the court below, filed a hill to set aside a certain consent decree upon the ground that it had been fraudulently procured by defendant. On June 11, 1907, tbe bill was dismissed on bearing for want of equity.
    Tbe bill avers in substance that Mary J. Van Sickle, the complainant, was formerly Mary 'J. Harmeyer, wife of Henry Harmeyer, who was her second husband; that her first husband’s name was Van Sickle; her maiden name was Mary J. Kane. She obtained a decree of divorce from Henry Harmeyer on July 20, 1901, by the terms of which she was entitled to $25 per week as alimony from the said Henry Harmeyer, and certain property was conveyed to one Gerard F. Harmeyer under a declaration of trust for the use and benefit of complainant, to secure the payment of alimony in accordance with the decree; and that Henry Harmeyer should pay, as part of the alimony, all interest, taxes and assessments due and owing on the property in question, which had been held by her under her maiden name of Mary J. Kane. Complainant was by the decree released from any claim which Henry Harmeyer held against her, and all powers of attorney and other instruments in writing theretofore given by her to Harmeyer were revoked. There was paid to complainant $425 on her allowance of alimony up to and including May, 1902.
    The bill avers that complainant was urgent in endeavoring to obtain the alimony due her, and met and took up with Henry Harmeyer the matter of payment of alimony and providing means for her support; that the defendant made certain representations to her as to the value of certain property and the incumbrances thereon, which, at the time, she believed to be true, but has since learned to be in many respects false; that he proposed a new settlement of the divorce decree, promising and representing that he would see that the taxes and interest were paid and that he would redeem the property held by Gerard F. Harmeyer under the trust agreement, and also some other property, so that she could carry it and would be enabled to clear it, and that he would pay her alimony right along if she did not press him too hard; also that he would pay her at that time $500 to apply upon what was due her, and pay taxes, interest and alimony, and see the loans renewed and that no foreclosure should take place; also that he would cause certain property on Kimbark avenue (then stated by him to have an incumbrance of $4,500 only, free and clear of all past due interest and taxes) and also property at 2120 Dearborn street and 2121 Armour avenue (then stated by him to have an incumbrance of $6,500 only, and all past due interest and taxes paid, making the incumbrances on all said property amount to $11,000), to be conveyed to complainant, and that he would attend to all these matters for her and see that she should have a comfortable living therefrom. Complainant, relying upon these representations, agreed to a settlement, entered of record in the Circuit Court of Cook county on September 22, 1902, whereby the decree entered on July 20,1901, was changed, releasing Henry Harmeyer from the payment of any alimony to complainant, and also from the payment of interest, taxes and assessments due and to become due on the premises known as 5620 Kimbark avenue, all of which was in consideration of the procurement by Henry Harmeyer of the transfer to complainant of the premises known as 2120 Dearborn' street and 2121 Armour avenue, in the city of Chicago, and of the payment of $500 in cash to complainant.
    The bill further avers that on September 22, 1902, the amount of alimony due complainant under the original divorce decree was $1,500; that prior to that time only $425 had been paid, and that after the payment of $500 there still remained due complainant $675.
    The bill then avers that after the settlement and entry of said order modifying the original divorce decree, Henry Harmeyer failed to keep his promises to remove liens upon the property and to procure a renewal of loans on the same; that he did everything in his power to prevent renewal of loans on the property by complainant; that he failed to pay interest and taxes due, and purposely allowed defaults in interest and taxes so as to force the parties having liens to foreclose; that the foreclosures were made, and a receiver appointed, and that either Henry Harmeyer or the receiver obtained all the rent of the premises at 2120 Dearborn street and 2121 Armour avenue, and complainant never received any income from those premises; that by reason of such fraudulent acts on the part of Henry Harmeyer, complainant was not only obliged to submit to foreclosure of the property at 5620 Kimbark avenue, but was obliged, for more than a year, to pay rent for said premises at the. rate of $25 per month; that by such foreclosure proceedings complainant was deprived of all of said real estate, which she supposed she was to receive from Henry Harmeyer, so that the pffect of the modification of the original divorce decree, by reason of the fraudulent acts of Henry Harmeyer, was to entirely defeat the provisions made for the support and maintenance of complainant, with the exception of $500 which was paid to her; that the property passed into the hands of various other parties ; that Henry Harmeyer, confederating with Emma Harmeyer, Louise Eobertson, William B. Wilson and Frederick A. Weil, contrived to injure complainant in the premises, so obtained title to said property, and they refuse to surrender same, or any part thereof to complainant, doing all in their power to deprive her of her rights under the divorce decree.
    The complainant further sets out the devolution of title to the property known as 5620 Kimbark avenue, whereby the title became vested in William B. Wilson, and avers that all of said conveyances were in the interest of Henry Harmeyer, and were not real conveyances but were made to cover up the property so that the complainant ■ might not be able to enforce her rights against Henry Harmeyer; that the title so acquired by Henry Harmeyer through Emma Harmeyer and William B. Wilson should be held for the benefit of complainant, and that Henry Harmeyer, Emma Harmeyer and William B. Wilson, and all other persons claiming under them, should be required to convey all their title to said premises to complainant.
    The bill also sets out the devolution of title to the property known as 2120 Dearborn street and 2121 Armour avenue, whereby the title thereto became vested in Frederick A. Weil, and complainant avers that the said conveyance to Weil was made merely to cover up and further complicate the title, and was in the interest of Henry Harmeyer; that all of said conveyances were in fraud of complainant and should be set aside, and that all titles to such property acquired by deeds to Louise Robertson, Emma Harmeyer and Frederick A. Weil should be held for the benefit of complainant, and the property should be subjected to the payment of all amounts due her under the divorce decree and subsequent proceedings.
    The bill prays for an injunction restraining Henry Harmeyer from disposing of, encumbering or in any way removing any of his property, or in which he has any interest, until the further order of the court, and that the other defendants, interested in the property in 5620 Kimbark avenue, 2120 Dearborn street and 2121 Armour avenue, may be enjoined in like manner; also that the order changing the divorce decree may be set aside and said decree restored and remain in full force and effect; that the release be set aside, and complainant have her rights as fully as though said release had never been signed; that alimony due her under the decree of July 30, 1901, at the rate of $25 per week, less $925 already received, be paid complainant ; that she recover all rent she was obliged to pay' while occupying 5620 Kimbark avenue, also such additional sum as would compensate her for the failure to have the premises for her to live in since she was driven ont by foreclosure proceedings; that tbe title to tbe property at 5620 Kimbark avenue be reconveyed to complainant; that the foreclosure proceedings by which 2120 Dearborn street and 2121 Armour avenue were conveyed to the other defendants, be declared null and void, and that they be compelled to convey title to complainant or to a trustee for her benefit.
    The defendant, William B. Wilson, answered the bill, setting up that the title to 5620 Kimbark avenue was acquired by him in the following manner: Plaintiff in error, complainant, under the name of Mary J. Kane, being the owner of said property by a trust deed dated June 8, 1897, recorded June 10, 1897, conveyed the property to Herman Felsenthal, to secure $4,500 and interest.
    On February 18, 1902, Isaac Levinson, the owner of the indebtedness secured by said trust deed to Felse'nthal, filed his bill of complaint in the Circuit Court of Cook county, case Gen. No. 225,403, to foreclose the said trust deed to Felsenthal; to said bill, Mary J. Kane, among others, was made a party defendant and duly appeared and answered the bill. On September 27, 1902, a decree of foreclosure was entered in said cause by virtue of which, one of the masters in chancery sold said premises to said Levinson on October 25, 1902; said sale was confirmed by court on October 31, 1902; no redemption having been made from said master’s sale, by deed dated February 1, 1904, and recorded February 1, 1904, said master in chancery conveyed the said real estate to said Isaac Levinson.
    Afterwards by warranty deed dated April 2, 1904, and recorded April 15, 1904, Isaac Levinson and wife conveyed said real estate to Emma Harmeyer, and by trust deed dated April 4, 1904, and recorded April 12, 1904, Emma Harmeyer conveyed said premises to the. Chicago Title & Trust Company, as trustee, to secure the payment of $3,500 and interest, due in five years after date, being part of the purchase price of said premises.

      . Afterwards, by warranty deed dated February 1, 1905, and recorded February 14, 1905, Emma Harmeyer, a widow, conveyed said premises to William B. Wilson, subject to said incumbrance of $3,500, and by trust deed dated February 1,1905, Wilson conveyed said property to tbe Chicago Title & Trust Company, as trustee, to secure an indebtedness of $1,000 and interest, being part of the purchase price.
    Tbe defendant Weil answered the bill, averring tbat be acquired title to 2120 Dearborn street and 2121 Armour avenue as follows: Plaintiff in error, under tbe name of Mary J. Kane, being tbe owner of tbe premises known as 2120 Dearborn street and 2121 Armour avenue, by a trust deed dated March 22, 1900, and recorded March 29, 1900, conveyed said premises to Max Guthmann, to secure tbe payment of $7,500 and interest; afterwards, by a warranty deed dated July 6, 1901, and recorded July 19, 1901, Mary J. Kane, a widow, conveyed said premises to Gerard F. Harmeyer; by declaration of trust, dated July 30, 1901, and recorded on tbe same day, Gerard F. Harmeyer declared tbat be held tbe title to 2120 Dearborn street to secure to Mary J. Yan Sickle tbe payment of alimony and taxes on 5620 Kimbark avenue, as provided in the decree of divorce of July 30, 1901, and after-wards, by mesne conveyance, tbe title to the Dearborn street and Armour avenue property, subject to tbe trust deed to Guthmann, trustee, dated March 22,1900, and to other encumbrances, became vested in Edna Harmeyer; and by quit claim deed dated September 22, 1902, and recorded on tbe same day, Edna Harmeyer and husband conveyed 21“' Dearborn street and 2121 Armour avenue to Mary J. u Sickle.
    Abram S. Farber, tbe owner íe indebtedness secured by tbe trust deed dated 1 h 22,1900, and Max Guthmann, as trustee in said i deed, filed a bill in tbe Circuit Court of Cook count se Gen. No. 226,757, to foreclose said trust deed froi <ry J. Kane to Max G-uthmann, dated March 22, 1900. To this bill of complaint, among others, Mary J. Kane, otherwise known as Mary J. Harmeyer, otherwise known as Mary J. Van Sickle, was made a party defendant, and duly appeared in said cause and filed her answer therein. On November 20, 1902, a decree of foreclosure was entered in said foreclosure suit, and thereafter, on December 18, 1902, one of the masters in chancery of the Circuit Court, by virtue of said decree, sold said Dear-born street and Armour avenue property to Abram S. Farber, and said sale was duly approved on January 10, 1903; Abram S. Farber assigned his certificate of sale to Ida K. Farber, his wife, and no redemption having been made from said master’s sale, by deed dated July 12, 1904, and recorded July 16, 1904, the master in chancery conveyed said Dearborn street and Armour avenue property to Ida K. Farber. By deed dated June 30, 1904, and recorded July 16, 1904, Ida K. Farber and husband conveyed said Dearborn street and Armour avenue property to Louise Bobertson, and Louise Bobertson, by trust deed dated April 15, 1904, and recorded July 5, 1904, conveyed said real estate to the Chicago Title & Trust Company, as trustee, to secure the payment of $8,000 and interest, and by trust deed dated June 30, 1904, and recorded July 16, 1904, Louise Bobertson and husband conveyed said real estate to the Chicago Title & Trust Company, to secure a further indebtedness of $1,500 and interest. After-wards, by warranty deed dated October 17, 1904, and recorded October 18, 1904, the said Louise Bobertson and husband conveyed said Dearborn street and Armour avenue property to Frederick A. Weil, subject to said two incumbrances of $8,000 and $1,500 respectively.
    The answer of Henry Harmeyer filed April 28,1906, to the bill of complaint, admits that complainant was formerly wife of the defendant, and that she obtained a divorce from him and resumed the name of Mary J. Van Sickle; it admits that lie is known as William L. Allen, and that the decree of divorce was entered in the Circuit Court of Cook county on July 30, 1901, and contains the provisions stated in complainant’s bill; admits that the decree provided for alimony as alleged, and that he paid $425 of the alimony up to May, 1902, and admits the trust agreement.
    The answer alleges that complainant’s attorney, who represented her in procuring a divorce, acted for her in efforts to collect alimony, and that the respondent was unable to keep the alimony provided in the decree paid up, and that, being unable to meet the payment of alimony and being pressed by complainant, placed the matter in the hands of T. S. Allee, his attorney, and that Allee and Condee, complainant’s solicitor, had frequent interviews, and made many attempts to arrange some basis as a solution of the demands by complainant.
    His answer admits that the complainant entered into the settlement set forth in the order of September 22, 1902, whereby the previous decree was modified, and sets out the order in full; admits that the release set up in the bill was executed by the complainant, and alleges that the order of September 22, 1902, was the result of long negotiations. The answer alleges that the solicitor for complainant represented to the solicitor for the respondent that he had fully informed complainant of the terms of the supplementary order, and had advised her to accept the same, and that she was willing to make a compromise, and thereupon solicitor for this respondent submitted to respondent a draft of the decree, and respondent agreed to its terms, and if the decree was entered, he was prepared to carry out the provisions in good faith; that respondent never consulted with complainant relative thereto.
    The answer alleges that complainant and her solicitors were fully apprised of the condition of the properties mentioned in the decree; that the title to the property oh Kimbark avenue, Dearborn street and Armour avenne had always been in ber name, and she bad made tbe incumbrances on said property and knew all about them.
    Tbe answer further alleges that all negotiations for settlement embodied in tbe order of September 22, 1902, were carried on by tbe solicitors, and neither complainant nor defendant consulted with each other, but they were at all stages advised of tbe terms of said agreement, and after tbe decree was prepared, tbe solicitors, together with complainant, went into court and bad tbe decree entered.
    Tbe answer further alleges that respondent complied with all tbe terms of tbe decree, paid complainant $4,500 and procured a transfer to ber of tbe title to 2120 Dearborn street and 2121 Armour avenue, in full satisfaction of respondent’s obligation.
    Tbe answer avers that respondent bad no information of tbe transfers of tbe property mentioned in tbe bill of Emma Harmeyer, William B. Wilson or tbe Chicago Title & Trust Co., and denies that tbe conveyances were in tbe interest of this respondent, or to cover up tbe property so that complainant might not be able to enforce ber rights; and denies -that tbe title acquired by Emma Harmeyer and William B. Wilson is held for tbe benefit of tbe respondent, or that it should be held for tbe benefit of complainant; and avers that respondent has no knowledge as to a master’s deed issued to Ida K. Farber, or any receipt in tbe nature of a contract to purchase, given to Emma Harmeyer, or any quit-claim to Louise Robertson, and denies any knowledge regarding conveyance to tbe Chicago Title & Trust Company. Defendant admits that Louise Robertson is bis sister, but denies that Louise Robertson and Emma Harmeyer acted in tbe interest of this respondent, or that be furnished tbe money to make tbe purchases, or used tbe names of bis sisters for tbe purpose of defrauding complainant. Defendant states that he had no knowledge or notice of the conveyance of the premises to Frederick A. Weil, and denies any acquaintance with Wed or William B. Wilson; and denies specifically all the other averments of the bill.
    The answer of Emma Harmeyer and Louise Bobertson, filed May 7, 1906, sets up and avers many of the facts stated in the answer of Henry Harmeyer, and avers that the conveyances made by them were in good faith, for a valuable consideration, and that since said conveyances they have no interest in the property conveyed, and avers that they have no interest in any of the matters in controversy, and denies that complainant is entitled to any relief against them.
    L. D. Condee and William Street, for plaintiff in error.
    Charles L. Bartlett, Sherman C. Spitzer, and Vail & Vette, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

It appears from the documentary evidence offered that the conveyances set up in the answers of William B. Wilson and Frederick A. Weil were made in the order set forth in their answers. It further appears that the purchase of the Dearborn street and Armour avenue property from Louise Bobertson was in fact made by L. F. Minzesheimer and Mason B. Starring, and that the title was taken by them for convenience in the name of Frederick A. Weil; that Minzesheimer and Starring purchased the property in good faith and gave for the conveyance from Louise Bobertson certain Chicago real estate, valued at $1,200 to $1,500, certain Iowa real estate, valued from $1,500 to $2,500, $1,260 in cash, and assumed $9,500 of incumbrances resting upon the Dearborn street and Armour avenue property. The evidence further shows that at the time Minzesheimer and Starring purchased the Dearborn street and Armour avenue property and took title thereto in Weil’s name, neither Minzesheimer, Starring nor Weil had any knowledge or notice, either actual or constructive, that Henry Harmeyer either had or claimed to have any interest in the property, or any knowledge or notice, either actual or constructive, of any of the claims now made by the complainant in her bill. The answer to the bill filed by Weil on May 25,1906, disclosed the interest of Starring and Minzesheimer in the Dearborn street and Armour avenue properties, but neither Starring nor Minzesheimer were ever made parties defendant to the bill. In our opinion the evidence shows that the defendants, Wilson and Weil, are bona fide purchasers for value of their respective properties, without knowledge or notice, either actual or constructive; that at the time of their respective purchases, Henry Harmeyer either had or claimed to have any interest in the real estate, and without knowledge or notice, either actual or constructive, of any of the claims now made by the plaintiff in error.

The main object of the bill is to set aside the settlement decree of September 22, 1902, and to restore the provisions for alimony contained in the decree of July 30, 1901, and plaintiff in error contends that she is entitled to this relief because her consent to the entry of the decree of September 22, 1902, was obtained by means of certain false promises made to her by Harmeyer. It is not claimed, however, that either Wilson, Weil, Minzesheimer or Starring had anything to do with the entry of the decree of September 22, 1902, or that they or either of them took any part in the alleged fraud that was perpetrated upon the plaintiff in error by Harmeyer. Evidently, when the original bill in this case was filed, plaintiff in error supposed that Wilson and Weil were mere dummies for Harmeyer, and held the titles to their respective properties in secret trust for him; but, upon the final hearing no evidence was adduced which showed or tended to show that either Wilson or Weil held title in trust for Harmeyer, or that Harmeyer at the time of the filing of the bill had any interest of any kind or nature in either of the parcels of real estate named; but, on the other hand, the evidence clearly showed that Harmeyer had no interest in the purchases made by either Wilson or Weil, and that both Wilson and Weil acquired title to their respective properties in good faith and for full value without notice that Harmeyer, at the time of their respective purchases, either had or claimed to have any interest in the respective properties which they were purchasing.

The decree of September 22, 1902, was a complete satisfaction and settlement of the alimony decree of July 30,1901, and that decree so far as it provided for alimony stood released and discharged of record. It is well settled that an entry of satisfaction of a judgment will not be vacated to the prejudice of a bona fide purchaser of property who became such while the judgment appeared by record to be satisfied and discharged. Freeman on Judgments, Sec. 478a; Persons v. Shaeffer, 65 Cal. 79; Taylor v. Ranny, 4 Hill (N. Y.) 619; Page v. Benson, 22 Ill. 484.

Even if it be true that Harmeyer promised plaintiff in error that he, Harmeyer, would pay the interest on a loan on the Kimbark avenue property, and aid her in securing a new loan thereon, or an extension of the old one, such promises could not affect the right of the mortgagee, Isaac Levinson, to foreclose or affect the title which he obtained by means of the foreclosure. All such matters were absolutely determined and settled by the decree of foreclosure. Topping v. Brown, 63 Ill. 348; Springer v. Darlington, 198 Ill. 121; Sielbeck v. Grothman, 248 Ill. 435.

When Wilson purchased the property from Emma Harmeyer the records showed that she was the absolute owner of the property, and there was nothing of record showing that Henry Harmeyer either had ór claimed to have any interest therein. The testimony of Wilson as to the purchase of the property in good faith and what he paid for the same, and that he had no notice, either actual or constructive, that Henry Harmeyer had or claimed to have any interest in the property, and that he purchased the property for his own personal use, and has since been residing thereon as his home, is not controverted in the evidence. It follows, therefore, that Wilson is a purchaser in good faith, for full value, and without notice, and is entitled to be fully protected in his title, even though Harmeyer may have been guilty of fraud in his dealings with plaintiff in error. Dickerson v. Evans, 84 Ill. 451; Grundies v. Reid, 107 Ill. 304.

In our opinion the pendency of the motion in the original divorce proceedings to set aside the settlement decree in that proceeding, did not operate as a lis pendens or a constructive notice, for the reason that the court had no jurisdiction in that case to hear and determine the motion. Bennett on Lis Pendens, Sec. 98; Jones v. Lusk, 2 Metc. (Ky.) 356; Irwin v. Jeffers, 3 Ohio St. 389.

At the time of the purchase of the respective parcels of property by defendants Wilson and Weil, plaintiff in error had been foreclosed from all of her interest in each parcel of property and was a stranger to the title. She was a party to both foreclosure proceedings and was, therefore, bound in every respect by the decrees and sales and deeds' issued thereunder.

It may further be stated that neither Wilson, Weil, Minzesheimer nor Starring were parties to any conspiracy to defraud plaintiff in error. This is clearly shown without contradiction in the evidence. While Minzesheimer was an attorney at law, and appeared as an attorney for Harmeyer, and resisted the motion made by plaintiff in error in the original divorce proceedings to set aside tbe decree of September 22, 1902, that does not in any wise connect him with the alleged conspiracy. This one appearance was the only connection that Minzesheimer had with the controversy between plaintiff in error and Harmeyer. The attempt, therefore, of plaintiff in error to establish a conspiracy with which Wilson, Weil, Minzesheimer, or Starring, or either of them, were connected, failed completely, and apparently the alleged conspiracy was without the slightest foundation, as shown by the evidence.

The consideration expressed in the deed of Weil was $1 and other good and valuable consideration, and in the deed to Wilson the expressed consideration was $1. This, of itself, casts no suspicion on the transaction. Hazle v. Bondy, 173 Ill. 302. The true consideration may always be shown by parol, even though it is different from that expressed in the deed. Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368; Worrell v. Forsyth, 141 Ill. 22; Howell v. Moores, 127 Ill. 67.

The evidence offered on the hearing showed that fnll consideration was paid for the conveyance by both Wilson and Weil, and this evidence was uncontradieted.

The equitable titles of Minzesheimer and Starring to the Dearborn street and Armour avenue properties was disclosed in the answer of Weil, filed May 25, 1906, and also on the hearing, but the plaintiff in error did not amend her bill to make Minzesheimer and Starring parties defendant thereto. It is a well-established rule that in suits affecting property held in trust, both the trustee and the equitable owners are necessary parties. McGraw v. Bayard, 96 Ill. 146; Dubs v. Egli, 167 Ill. 514; Gordon v. Johnson, 186 Ill. 18. Plaintiff in error, therefore, is entitled to no relief against Minzesheimer or Starring, or in respect to the Dearborn street or Armour avenue properties.

Defendants in error contend that the plaintiff in error is barred by her gross laches from any relief against them. It appears that the bill to foreclose the Kimbark avenue property was filed February 18, 1902; plaintiff in error filed her answer therein on May 7,1902, and the decree of foreclosure was entered September 27, 1902, and no redemption having been made from the sale thereunder, a master’s deed issued to Levinson, dated February 1,1904, and was recorded the same day.

The bill to foreclose the Dearborn street and Armour avenue properties was filed April 8, 1902', and plaintiff in error filed her answer therein on May 22, 1902. A decree of foreclosure was entered in the suit on November 20,1902, and, no redemption having been made from the sale thereunder, a master’s deed issued to Ida K. Farber, dated July 12, 1904, and recorded July 16, 1904.

The bill of complaint in the present case was filed April 5, 1906. It thus appears that plaintiff in error was a party defendant to both foreclosure suits and for over three years knew that Harmeyer was not fulfilling his alleged promises and agreements, which, she alleges, constituted such fraud upon her as to entitle her to set aside the settlement decree of September 22, 1902. It is a well-established rule that if a party discovers fraud it is his duty to act with great promptness and disaffirm the transaction. Greenwood v. Fenn, 136 Ill. 146; Naugle v. Yerkes, 187 Ill. 358; Brady v. Cole, 164 Ill. 116.

Wilson did not acquire his title until February 1, 1905, and Weil did not acquire his title until October 17, 1904. The plaintiff in error, with knowledge of all the facts, allowed the settlement decree of September 22, 1902, to remain undisturbed for nearly four years. In our opinion, therefore, she is barred, by her laches, from any relief affecting the rights of the defendants in error, Wilson and Weil. The bill was, therefore, in our opinion, properly dismissed for want of equity as against the defendants in error, Wilson and Weil.

The question remains as to the propriety of the decree as to defendant in error, Henry Harmeyer. It is contended on behalf of plaintiff in error that while the marriage relation had ceased at the time of the alleged fraudulent transaction averred in the bill, still such influence had been attained over the plaintiff in error and such confidential relations existed between plaintiff in error and defendant in error Harmeyer, that the plaintiff in error was induced to rely upon the promises and representations made by Harmeyer at and prior to the entry of the decree of September 22, 1902, and that the promises and agreements of Harmeyer at that time amounted to fraud upon the plaintiff in error. The question whether there was a fiduciary relation between the parties so that confidence was reposed by the one in the other will depend upon all the facts and circumstances of the particular case. Albrecht v. Hunecke, 196 Ill. 127. In our opinion, there was no such confidential relation between Henry Harmeyer and plaintiff in error during the time of the negotiations for the consent decree, or at the time of the entry thereof. She had been divorced for a year and during that year she had instituted proceeding after proceeding to collect alimony. In our opinion such state of facts tends to show bitterness between the parties and want of confidence rather than any confidential relation, or the repose of any confidence by the one in the other. During the time between the entry of the divorce decree and the entry of the consent decree of September 22, 1902, plaintiff in error had in her employ constantly a solicitor looking after her interests, not only in summary proceedings antagonistic to the defendant Harmeyer, but her interest in the properties involved in the foreclosure suit to which she was defendant, and in a suit against the trustee who held property to secure her alimony. All the facts and circumstances indicate that there was no confidential relation between Harmeyer and the plaintiff in error.

Plaintiff in error accepted the benefits of the decree of September 22, 1902, and retained them, and does not offer, by her bill, to restore them. A party cannot accept the benefits of a decree without being bound thereby. Holt v. Rees, 46 Ill. 181; King v. King, 215 Ill. 100.

After the plaintiff in error discovered what she claims to have been fraud practiced upon her by defendant in error, Harmeyer, and that he would not and did not keep the alleged promises which she claims to have relied upon at the time that the consent decree was entered, it was her duty at once to take affirmative action. She, however, remained silent and treated the property as her own, and that, in our opinion, constituted a waiver of any objection which she could make to the decree and she became conclusively bound thereby. Greenwood v. Fenn, supra; Grymes v. Sanders, 93 U. S. 55; Naugle v. Yerkes, supra.

A satisfaction of a judgment entered in pursuance of a compromise, or settlement between parties, will not be vacated at the instance of one of the parties where he has enjoyed the avails of the settlement with full knowledge of the facts, except upon the condition that the party shall return all he has received pursuant to the agreement. Lee v. Vacuum Oil Co., 126 N. Y. 579; Reid v. Hibbard, 6 Wis. 175.

In our opinion, the promises and agreements of defendant in error alleged to have been made at the time that the consent decree of September 22, 1902, was entered, were not false representations. The plaintiff in error stated in her testimony that she relied on the promises and agreements of the defendant in error. She testified as follows:

“Q. What did he say die would do for you? A. He would renew the loans, and see that I redeemed the property, and see that I was supported properly and had a good income if I would do as he agreed to do with me.
Q. I will ask you whether those conversations and the various promises between yourself, that Henry Harmeyer made to you, had any influence on you? A. Certainly they did, and I made the settlement on those promises, believing he would keep them.
Q. Did you rely on his promises or not? A. Yes, sir, I certainly did. ’ ’

The making of promises which are not kept will not sustain a bill to set aside a contract or decree. Krieger v. Krieger, 120 Ill. App. 634, and cases there cited.

We think the evidence adduced on the hearing does not show that plaintiff in error was defrauded by the defendant in error, Harmeyer, in the entry of the decree of September 22, 1902. Giving to the evidence the most favorable construction possible to the plaintiff in error, it only tends to show that in order to induce plaintiff in error to consent to the entry of the settlement decree, Harmeyer made to plaintiff in error certain promises and agreements which he has not performed, and which, at the time the promises and agreements were made, he did not intend to perform. This is not fraud in law, nor does it afford a ground for relief in equity. Murphy v. Murphy, 189 Ill. 360; Haenni v. Bleisch, 146 Ill. 262; People v. Healy, 128 Ill. 9; Commercial Accident Co. v. Bates, 176 Ill. 194.

In our opinion the evidence fails to show that plaintiff in error is entitled to have the settlement decree of September 22, 1902, set aside, and the bill was properly dismissed for want of equity as to defendant in error, Harmeyer. The decree is, therefore, affirmed.

Affirmed.


text:
    Nellie Carlin, Administratrix, Appellee, v. Wallace G. Clark, Appellant.
    Gen. No. 17,062.
    1. Appeal and error — objections below for review. Where in an action for the death of a boy struck by an automobile there was no objection to testimony as to the deceased’s habits, the admissibility of such testimony is not open to review.
    2. Death — evidence of contributory negligence. In an action for the death of a boy struck by an automobile, evidence held to show that the deceased was not in the exercise of ordinary care for his own safety at the time of the accident.
    Appeal from the Superior Court of Chicago; the Hon. George W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded
    Opinion filed October 1, 1912.
    George H. White, for appellant.
    Richard J. Finn, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, as administratrix of the estate of Joseph Herlihy, deceased, recovered a judgment for $3,000 in the Superior Court of Cook county, for damages resulting to the next of kin from the death of plaintiff’s intestate. The case was tried on one count, which, in substance, alleged that defendant negligently drove and operated an automobile at such a great rate of speed that it ran into and against plaintiff’s intestate, who was instantly killed.

Appellant, with his wife, was driving an automobile north on Wentworth avenue on the east side of the street between the curb and the east rail of the street car tracks. When they reached a point about midway between Fifty-fifth and Fifty-seventh streets, the automobile struck plaintiff’s intestate, a boy about thirteen years old, killing him instantly.

Wentworth avenue is a north and south street in the city of Chicago, fifty feet wide between the curbs, with a double street car track on it. There is no cross street between Fifty-fifth and Fifty-seventh streets. About half way between these streets and fronting west was a place called Jacob’s restaurant, at 5625 Wentworth avenue. The next lot north of Jacob’s restaurant was vacant, and fifty feet in width; a seven-foot cement sidewalk and a grass space to the curb fronted this lot. Between the street curb and the east rail of the northbound street car track is a space of nine or ten feet. The accident occurred in this space, opposite the restaurant.

In a building in the rear of Jacob’s restaurant was a boys’ club, and in going to their homes from this club on the evening in question, deceased and one of his fellow members ran through the vacant lot and out on Wentworth avenue. It appears that deceased crossed the sidewalk and walked or ran into the street in a southwesterly direction, where he collided with appellant’s automobile, while his companion went directly south on the sidewalk.

Appellant’s machine was a four-cylinder “Boyal Tourist” touring car, seating seven people, equipped with two very large bull’s-eye acetylene gas lamps in front of the car inside the front wheels, two kerosene oil lamps on the dashboard and one kerosene lamp in the rear. It was furnished also with two emergency brakes on the hubs of the rear wheels, and a band brake on the shaft. The lights were all burning brightly at the time of the accident. The glass of the east or right-hand acetylene lamp was broken by the collision with the deceased. The accident occurred at about eight o’clock in the evening of September 23, 1907. It was raining, with considerable wind.

Upon the question of liability, appellant contends that he was not proven guilty of the negligence charged against him, and that the accident was entirely dne to a failure on the part of the deceased to exercise ordinary care for his safety, in that he suddenly ran out of a vacant lot and across the sidewalk in a southwesterly direction into Wentworth avenue at a point where there was no regular crossing, and plunged into appellant’s brilliantly lighted automobile.

The declaration avers, as it is necessary it should, that plaintiff’s intestate was in the exercise of ordinary care for one of his years and discretion for his own safety and welfare. The plaintiff, upon the theory that there were no eyewitnesses to the accident, introduced evidence tending to show that the deceased was a careful and cautious, boy with good eyesight and hearing, for the purpose of making the best proof possible under the circumstances that the deceased was in the exercise of ordinary care for his own safety and welfare for one of his years and discretion. The testimony of Ryan, Kroell and Mrs. Josephine Herlihy, the mother of the deceased, was received upon that question.

At the close of the plaintiff’s evidence and again at the close of all the evidence in the case, appellant interposed a motion on the trial to direct a verdict of not guilty. That motion raised a question of law as to the sufficiency of the evidence, favorable to the plaintiff to sustain a verdict in her favor, and error is assigned in this court upon the denial of the motions by the court below. The question is presented whether the verdict of the jury is against the weight of the evidence on the question of the exercise of ordinary care by the deceased at the time of the accident. This evidence as to the habits of deceased was offered and received without objection on the part of appellant as to its admissibility under the facts and circumstances shown by the record. The question, therefore, as to the admissibility of this evidence is not before us for review, as it was not saved by proper objection. The question.. however, as to whether the evidence so offered is sufficient to overcome the presumption or inference arising from the testimony on behalf of the plaintiff that the deceased was in the exercise of ordinary care for his own safety at the time of the accident, is before ns.

The witness Anna Sundwall testified that she was walking south on the east side of Wentworth avenue and, when in front of the house north of the vacant lot, saw Joseph Herlihy, the deceased, coming’ out of the vacant lot and walk up on the sidewalk in a southwesterly direction; she, at the same time, saw the appellant’s car. She did not see the deceased step off the sidewalk and into the roadway of the street. For some reason she did not see the deceased again until after he was struck by the automobile.

Mark McQuinston testified that he was playing with the deceased in the boys’ club in the rear of Jacob’s restaurant, and that the deceased and the witness started home at the same time; that the deceased was about ten feet ahead of the witness, and it was dark and rainy; that they ran through the vacant lot north of Jacob’s restaurant, and, when the deceased came to the sidewalk, they parted, and the deceased continued across the sidewalk in a southwesterly direction, and that he was running fast when the witness saw him last. The witness continued directly south upon the sidewalk; he did not see the automobile striké the deceased, but he glanced to the right as he was going along the sidewalk and saw the rear wheels of the automobile go over the deceased.

The witness Maria Eichler testified that she alighted from a south-bound car a short distance north of Jacob’s restaurant, and after the car started up again, she, intending to cross the street, looked south to see that the north-bound car track was clear, started across the street toward her home, and saw the automobile coming toward her, and saw it strike something, but she did not know at the moment what it struck; she was some thirty or forty feet northwest of the automobile at that time; she ran over to the automobile and found that the car had struck the deceased, and saw that the deceased was lying back of the car, and that the automobile had run about its length and five or six feet more from where the deceased was lying.

Upon consideration of this testimony, it clearly appears that the lights on the car were burning brightly, or sufficiently so that they could be seen, and that the deceased came out of the vacant lot and either ran or walked across the sidewalk into the street and in front of the automobile in a southwesterly direction, so that the lights on the automobile were plainly visible to him if he had been looking in the direction he was going and exercising ordinary care for his own safety in the street at a point where there was no crossing for pedestrians, and nothing to obstruct his view or prevent him from seeing the automobile. In our opinion, the facts and circumstances shown by the testimony of these witnesses overcome the presumption or inference arising from the proof offered on behalf of the plaintiff that the deceased was in the exercise of ordinary care just before and at the time of the accident. "We think the evidence tends to show that the deceased was not looking in the direction in which he was going, or, if he was.looking, he attempted to cross in front of appellant’s automobile, which was approaching in plain view.

Inasmuch as we have reached the conclusion that there must be another trial of the case for the reason given above, we do not deem it necessary to comment upon the evidence bearing upon the negligence of the defendant. Nor is it necessary to pass upon the rulings of court in permitting counsel for appellee in his closing argument to make the statements shown by the record.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    Nicholas D. Verdon, by Christopher Verdon, his next friend, Appellee, v. Nicholas D. Lassarias, Appellant.
    Gen. No. 17,088.
    1. Malicious prosecution — probable cause. In an action for malicious prosecution, evidence held to show prohahle cause' for suing out a warrant.
    2. Malicious prosecution — action on legal advice. Where a defendant in an action for malicious prosecution had prohable cause for the suing out of a warrant and sought legal counsel, following his advice therein, there is no malice present to sustain a suit for malicious prosecution.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term* 1910.
    Reversed with finding of fact.
    Opinion filed October 1, 1912.
    Miles J. Devine, for appellant; John T. Murray, of counsel.
    Haynie R. Pearson, for appellee; Samuel W. Jackson, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This case is before us on appeal from a judgment for $750, rendered in the Circuit Court of Cook county-in favor of appellee, Nicholas- D. Yerdon, against Nicholas D. Lassarias, appellant, for malicious prosecution.

It appears that appellee was employed in appellant’s restaurant as a night waiter and cashier from June, 1904, until September, 1905, and from December 22, 1905, to January 28, 1906, when he was discharged by appellant, and informed that the reason for it was that on a number of occasions the cash register was short of money as shown by the checks issued during the night time. About two days later a complaint was sworn out, charging that Verdón had unlawfully and fraudulently converted to his own use certain sums of money belonging to Lassarias. That case was tried before a justice of the peace and Verdón was acquitted, who then brought suit in the Circuit Court of Cook county for malicious prosecution.

Appellant asks a reversal of the judgment in the court below upon the grounds that there was probable cause; that he was justified by the advice of counsel in bringing the suit, and that the court erred in the admission of certain evidence.

We cannot enter into any detailed discussion of the evidence shown in the record. It appears without contradiction or controversy that appellee was appellant’s cashier in charge of his cash during the night in a restaurant conducted by appellant. During appellee’s employment appellant repeatedly discovered a shortage in the cash as recorded by the cash register when compared with the checks turned in by customers during the night; and appellant frequently talked with appellee in regard to the shortage, but received no explanation thereof. After talking with appellee, appellant found that for two or three days the cash was correct and everything was found correct, but gradually thereafter the shortages again appeared.

The witness, Courlas', and the cook employed by appellant informed appellant that the sales during certain nights were in excess of the amounts registered in the cash register, and Courlas testified that he had seen appellee ring up incorrect amounts on the register. Appellant thought that there might be something wrong with the cash register machine, and applied to the National Cash Register Company to have one of its experts examine and test the machine; this was done and it was found that the machine registered correctly. Appellant, Lassarias, then consulted his attorney and laid before him the facts as they had developed and as lie had ascertained them, and sought the attorney’s advice. The attorney testified to the fact that appellant, Lassarias, consulted him with reference to the case before the warrant of arrest was issued. The conversation was had in the attorney’s office two or three days before action was taken, and appellant, Lassarias, revealed to him all the facts and circumstances connected with the case, and the attorney, to be safe and cautious in his advice, consulted with the witnesses named to him by appellant, Lassarias, and for that purpose went to the place of business of appellant. After making a careful investigation, the attorney advised appellant to take out a warrant for the arrest of appellee, and that was accordingly done.

In our opinion the evidence clearly showed that probable cause for the suing out of a warrant existed. It further shows that appellant sought legal counsel and followed the advice of counsel. Upon these facts .we are of the opinion that malice was not shown — that all the facts were disclosed to counsel and that the cause of action alleged- in the declaration was not sustained by the evidence. The judgment is reversed with a finding of fact.

Reversed with finding of fact.