text:
    Enrico Formella, trading as E. Formella & Company, Appellee, v. Durand & Kasper Company, Appellant.
    Gen. No. 23,575.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Rehearing denied June 24, 1918.
    Statement of the Case.
    Action by Enrico Formella, trading as E. Formella & Company, plaintiff, against Durand & Kasper Company, a corporation, defendant, to recover damages for defendant’s breach of contract. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Sales, § 1* — when evidence is sufficient to meet requirements of contract. In an action by the vendee to recover damages for the vendor’s failure to deliver goods called for by a written contract, evidence -of tender of the purchase price by plaintiff on demanding delivery held sufficient to meet the requirements of the contract, there being evidence of a readiness, willingness and ability on the part of the plaintiff to take 'the goods, as required by Uniform Sales Act, sec. 42 [Callaghan’s 1916 St. Supp. 10021(45)].
    2. Sales, § 166* — when practical construction given contract as not requiring cash on delivery. Vendor of goods held to have given a practical construction to thp contract as not requiring cash on delivery by extending a limited credit on deliveries made as it had done in previous dealings with the vendee.
    3. Sales, § 163* — delivery and payment as concurrent conditions. Even though a contract for the sale of goods provided for cash on delivery, delivery and payment were concurrent conditions, and the purchaser was not required to pay unless the seller was ready and willing to deliver, under Uniform Sales Act, sec. 42 [Callaghan’s 1916 St. Supp. If 10021(45)].
    4. Contbacts, § 53* — what is equivalent to formal execution. Even though one of the parties to a contract did not sign it, but such party held a copy of the contract and acted upon it, such action was equivalent to a formal execution.
    Frederick J. Kasper, for appellant.
    De Stefano & Mirabella, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Luigi Russo fu Agatino, Appellee, v. Louis Ginocchio et al., trading as Ginocchio, Costa & Company, Appellants.
    Gen. No. 23,649.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Reversed with finding of fact and judgment here.
    Opinion filed June 14, 1918.
    Rehearing denied June 24, 1918.
    Statement of the Case.
    Action by Luigi Russo fu Agatino, plaintiff, against Louis Grinocchio, P. Costa and A. M. Meyer, trading as Grinocchio, Costa & Company, defendants, to recover damages for breach of a contract to purchase almonds. Plaintiff resided in Sicily and the negotiations were conducted through one Pinder, a local broker. Plaintiff inquired of the latter as to the price of almonds for “first half September.” Pinder then cabled plaintiff as follows: “Lowest 150 bales Palma new crop first half September direct steamer,” to which plaintiff replied “126 September.” Upon defendants’ informing Pinder that they had a price at 120 “first half September,” he cabled that the Hamburg market was lower and received a cabled reply from plaintiff “I accept 120 September.” Believing that this message was a direct reply to their inquiry, defendants agreed to take 150 bales. Pinder then cabled plaintiff “Sold Costa 150 Palma new crop September 120” (meaning 150 bales at 120 shillings per cent). Defendants ’ negotiations with Pinder contemplated shipment before the first half of September while plaintiff claimed the right to ship any time during the month.
    An amended statement of claim filed during the trial relied upon a modification of the contract so as to call for shipment by the 16th of September, but up to that time plaintiff’s correspondence indicated reliance upon his original contention that the contract called for shipment during September. From a judgment in favor of plaintiff, defendants appeal.
    Abstract of the Decision.
    Sales, § 18

       — when contract through tyroTcer acting for both parties is not effected. Where a domestic purchaser and a foreign vendor acted through the same broker, and the purchaser’s offer made through the broker contemplated shipment prior to the middle of a certain month and the seller’s acceptance made through the same broker was based upon shipment at any time during such month, no contract was created since the minds of the parties did not meet.
    Culver, Andrews, King & Stitt, for appellants.
    Newman, Poppenhusen, Stern & Johnston, for appellee; Edward R. Johnston, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. James C. Bailey et al., Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 23,681.
    1. Mandamus, § 119

       — who may not join in seme writ as relators. Where the interests of several relators seeking redress by mandamus are separate and independent they cannot join in one and the same writ.
    2. Mandamus, § 139* — when petition for restoration of several persons to former rank as police officers is insufficient. A petition for mandamus on the relation of several persons claiming to have been unlawfully reduced in rank as police officers and praying to be restored to their former rank is bad on special demurrer, since there was no community of interests among the relators, even if they held positions of the same rank and were unlawfully removed therefrom by the same order.
    Appeal from the Superior Court of Cook county; the Hon. Wn> uam Fenimobe Coopeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed June 14, 1918.
    Rehearing denied June 24, 1918.
    Samuel A. Ettelson, for appellants; Rot S. Gaskill, of counsel.
    A. D. Gash, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a petition for a writ of mandamus on relation of fifty-two persons claiming to have been unlawfully reduced in rank as officers of the police department of the City of Chicago, and praying to be restored as senior detective sergeants of police. Respondents demurred to the petition, alleging as one ground of special demurrer a misjoinder of parties as relators in said cause. The demurrers were overruled and respondents electing to abide by the same have appealed from the order awarding the writ.

When the interests of several relators seeking redress by mandamus are separate and independent they cannot join in one and the same writ. (High’s Extraordinary Legal Remedies, 3rd Ed. sec. 439.) As tersely stated by Chief Justice Holt in The Case of Andover, 2 Salk. 433: “Five persons cannot have one writ of mandamus to be restored; for though the end of the writ is to do justice, yet the foundation is the wrong in turning them out, and the turning out of one is not the turning out of another.” The principle has been recognized and followed in Smith v. Erb, 4 Gill (Md.) 437; Heckart v. Roberts, 9 Md. 41; Hoxie v. Somerset County Com’rs, 25 Me. 333; Dobbs v. Stauffer, 24 Kan. 127; Wright v. Gallatin County Com’rs, 6 Mont. 29. There is no community of interests between the relators, even if they held positions of the same rank and were unlawfully removed therefrom by the same order. Hence a separate petition for each would be necessary. The special demurrer should have been sustained on the ground assigned. That being the case, we need not review other alleged defects in the joint petition.

Reversed.


author: Mb. Presiding Justice Barnes

text:
    Jakub Zamulewicz, Defendant in Error, v. Boleslaw Jasudes, Plaintiff in Error.
    Gen. No. 23,957.
    (Not to be reported in full.)
    Abstract of the Decision.
    Vendor and purchaser, § 54

       — when fraud by vendor in procuring signature of plaintiff to contract is shown. In an action to recover damages for fraudulently procuring plaintiff’s signature to a contract for the purchase of land by falsely representing that the contract, which plaintiff was unable to read, contained a provision that plaintiff would obtain clear title free from taxes or assessments upon the payment of a certain sum, evidence held to sustain a judgment for the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Ery, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Action by Jakub Zamulewicz, plaintiff, against Bole-slaw Jasudes, defendant, to recover damages for fraudulently procuring plaintiff’s signature to a contract for the purchase of land. The contract was in English and plaintiff, a Lithuanian, could neither read nor write English. He claimed that defendant in translating it represented that it contained provisions which it did not in fact contain. From a judgment for plaintiff, defendant brings error.
    Wolon & Brenza, for plaintiff in error; Joseph C. Wolon and Thomas W. Reilly, of counsel.
    Harry C. Leemon, for defendant in error.

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

   Mb. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    The Ozonized Ox Marrow Company, Appellant, v. M. L. Barrett & Company, Appellee.
    Gen. No. 23,616.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 141

       — necessity that goods conform to representation as well as to sample. Where goods are sold by sample and representation, the fact that they conform to the sample submitted is not sufficient as they must be in accordance with the representation as well.
    2. Sales, § 141* — when shown that commodity was not “oil of orange’’ as represented. Evidence held to sustain a finding that a commodity was purchased by sample on representation that it was “oil of orange,” but that, although it may have conformed to the sample, it was not “oil of orange” as represented.
    3. Customs and usages, § 26* — when evidence of custom as to

      ■meaning of term “oil of orange” is not inadmissible. Evidence of a custom in the chemical industry that the term “oil of orange” refers only to a commodity conforming to the formula of the United States Pharmacopreia is not inadmissible on the ground that the vendor, not being in the drug or chemical business, could not he charged with knowledge of the custom, if it existed, where the evidence in behalf of the vendee showed that the vendor agreed to deliver “oil of orange” in conformity with such formula.

      Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Rehearing denied June 22, 1918.
    Statement of the Case.
    Action by The Ozonized Ox Marrow Company, plaintiff, against M. L. Barrett & Company, defendant, to recover the value of a quantity of “washed oil of orange” sold and delivered to defendant. From a judgment in favor of defendant, plaintiff appeals.
    Olaf A. Olson, for appellant; Bull, Lytton & Olson, of counsel.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Louis Santowsky for use of Bank of Wisconsin, Appellee, v. First National Bank of Chicago and Chicago Metal Refining Company, Intervening Petitioner, Appellants.
    Gen. No. 23,642.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Richabdson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Garnishment proceedings hy Louis Santowsky for use of Bank of Wisconsin against First National Bank of Chicago, garnishee. The Bank of Wisconsin had previously recovered a judgment of upwards of $2,000 against Louis Santowsky upon which execution was issued and returned unsatisfied. 'Subsequently the First National Bank of Chicago was served as garnishee. Answers to interrogatories revealed that at the time of the service of the garnishee summons there stood to the credit of Santowsky the sum of $941.71, being a balance of a checking account, subject to a prior assignment thereof from said Santowsky to the Chicago Metal Refining Company, which sum the bank had since paid in full to the latter. The Chicago Metal Refining Company was made a party as intervening claimant. From a judgment against the garnishee, it and the intervening petitioner appeal.
    Abstract of the Decision.
    Garnishment, § 130* — when shown that prior assignment of bank account was void. Finding that a purported prior assignment of a garnisheed bank account was void as in fraud of creditors and without consideration, held sustained by the evidence.
    Bernard J. Brown, for appellants.
    McCulloch & McCulloch, for appellee; Charles Kramer and Julius Moses, of counsel.
   Mr. Justice McDonald

delivered the opinion of the court.


text:
    E. H. Johnson, Trustee, Appellant, v. Canfield-Swigart Company et al., Appellees.
    Gen. No. 23,653.
    1. Corporations, § 197

       — when stockholder paid for stock out of corporate funds liable to subsequent creditors. A stockholder who disposes of his stock with knowledge that the money received in payment thereof is taken from corporate funds, resulting in a depletion of the capital stock of the company, and with the further knowledge that the company is to continue doing business, will, in the event that the company afterwards becomes insolvent, be held accountable for the money thus received to creditors who subsequently extend credit to the company in ignorance of the fact that such depletion of the capital stock has thus taken place.
    ■2. Interest, § 19* — when not allowed on unliquidated demand. Where a stockholder was paid for stock transferred out of the corporate funds, the trustee in bankruptcy of such corporation suing to recover the amount so diverted is not entitled to interest from the date of the transaction, as until the insolvency of the company the liability of the defendant was purely contingent and the amount was unliquidated until the claims of all the creditors were filed against the bankrupt estate, the assets thereof converted into cash and the exact amount of the deficiency ascertained.
    Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gbidley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed June 14, 1918.
    Fred H. Atwood, Charles O. Loucks and Vernon E. Loucks, for appellant.
    Harry A. Biossat, for appellees Canfield-Swigart Co., George W. Swigart and Charles J. Canfield.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This appeal brings up for review an order dismissing appellant’s bill of complaint' for want of equity.

The bill was filed by E. H. Johnson, as trustee in bankruptcy of the estate of the Turnbull-Joice Lumber Company, bankrupt, against the Canfield-Swigart Company, a corporation, George W. Swigart, Charles J. Canfield, Charles C. Toung, William H. Turnbull and John K. Joice, and sought for the benefit of its creditors to compel the return of capital amounting to approximately $50,000 alleged to have been wrongfully and fraudulently diverted from the treasury of the said company.

The cause was referred to a master in chancery for hearing, who recommended that a decree be entered against the Canfield-Swigart Company for the sum of $28,049.70, and against Charles J. Canfield for the sum of $7,812.88, being the amounts so received by them respectively. Exceptions to the master’s report were sustained by the court and the bill of complaint dismissed for want of equity as to the said two last-named defendants. During the pendency of the suit the said Turnbull and Young died, and no one having been substituted in their stead, the suit abated as to them. What disposition was made of the suit as to the said Joice and Swigart personally the record does not reveal nor is any point made thereon by either party.

The undisputed evidence shows that in May, 1905, the Turnbull-Joice Lumber Company was incorporated under the laws of the State of Illinois, with a capital stock of $50,000, divided into 500 shares of the par value of $100 each; that on July 8, 1907, the said capital stock stood on the books of the company in the

names of the following persons:

William H. Turnbull.................... 71 shares
Charles C. Young....................... 52
George W. Swigart, as trustee for the Can-field-Swigart Company ...............259
John K. Joice..........................118;

that the stock appearing in the name of the said Joice was originally paid for with money advanced by the said Canfield and was immediately assigned and delivered to him, by the said Joice, as security for the money so advanced; that on and prior to the said last-mentioned date the officers of the Turnbull-Joice Lumber Company were as follows: William H. Turnbull, president; John K. Joice, vice president; George W. Swigart, secretary; and Charles J. Canfield, treasurer; that on said date negotiations theretofore carried on between the said Joice, acting on his own behalf, and the said Swigart, acting on behalf of the said Turnbull, Young and the Canfield-Swigart Company, culminated in an agreement by the terms of which the said Joice agreed to purchase all of the capital stock of the said company — including the 118 shares standing in his name but which had been assigned to and were being held by Canfield as aforesaid — for the sum of $53,-188.81, this being the amount agreed upon by the said parties as the fair cash value of the stock at that time.

The evidence further shows that the said Joice paid for this stock with funds taken from the treasury of the Turnbull-Joice Lumber Company, procured in the following manner: Joice, on behalf of the company, borrowed $30,000 from a Chicago bank, giving the company’s notes therefor, $27,930.85 of which he turned over to Swigart in part payment of the said stock, whereupon Swigart delivered to him all the capital stock of the Turnbull-Joice Lumber Company. The remainder of the purchase price was collected from the Ouachita Lumber Company, a corporation which was indebted to the Turnbull-Joice Lumber Company in the sum of $25,257.96. The evidence shows that the Canfield-Swigart Company advanced this amount to the said Ouachita Lumber Company to enable it to pay its indebtedness to the Turnbull-Joice Lumber Company, and for the express purpose of supplying the balance of cash necessary to complete the said stock purchase, and that it was actually used for that purpose.

The evidence further shows that on said date a meeting of the board of directors of the Turnbull-Joice Lumber Company was held, at which the then officers and directors of said company tendered their respective resignations, whereupon new directors and officers were elected, Joice becoming its president; that thereupon the newly-elected board of directors declared a 100 per cent, dividend on its capital stock, which Joice acknowledged receipt of, this being the money withdrawn from the treasury of the company and used in payment of the stock purchased by him as aforesaid; that thereafter the company, though still solvent, had barely sufficient assets to pay its existing indebtedness; that it continued doing business for upwards of 2 years thereafter, when it became insolvent, with liabilities aggregating upwards of $80,000 over and above its assets; that the creditors on whose behalf this bill was filed did not become such until some time after July 8, 1907, and that they extended credit to the company without notice of the aforesaid transaction.

The vital question here presented for determination is, whether or not under the aforesaid circumstances subsequent creditors of the company who had no notice thereof can attack such a transaction. This precise question has never been passed upon by our Supreme Court.

A situation somewhat analogous to the one now confronting this court arose in Taylor v. Ziegenhagen, 131 Fed. 232. In that case all the capital stock of the Haas Company, a corporation organized under the laws of the State of Illinois, was sold and the transfer to the purchasers thereof made. To secure the notes given to evidence the indebtedness due on the purchase price of the stock so transferred, a chattel mortgage upon the assets of the corporation was given to the vendors. Subsequently the company was adjudged a bankrupt, and it was sought by the mortgagee under the chattel mortgage to gain preference as a creditor under such mortgage. The reviewing court, in denying such claim, held that “unless shareholders may invade, at will, the capital and assets of the corporation, appropriating them with impunity to the payment of their individual debts, the transaction complained of by the trustee cannot be sustained”; that “shareholders may, * * * out of the assets of the corporation, declare and pay dividends; or, the affairs of the corporation being wound up, divide among themselves its capital and assets; but dividends mean the division not of capital and assets as such, but of earnings; and a final division of capital and assets means that the corporation will invite no further credit”; that so long as the company is a going concern there can be no lawful division of assets and capital that would impair the rights of existing and future creditors and that would diminish the security upon which continuing or future credit would be presumably based.

In Mackall v. Pocock (Minn.), 161 N. W. 228, the question presented for review was, whether or not dividends paid to the stockholders out of the paid-in capital of a corporation, at a time when the company had made no profits, owed debts but was nevertheless solvent, could be recovered by a trustee in bankruptcy for the benefit of creditors without notice, whose claims arose after the payment of such dividends. The court, in upholding such right, used the following language, p. 230:

“Defendant received assets of the corporation to which he was not entitled. Subsequent creditors, who trusted the corporation in ignorance that its capital had been impaired by the payment of these dividends, are entitled to recover on the ground of fraud, not actual fraud but constructive fraud, fraud in law.”

To the same effect is Coleman v. Tepel, 230 Fed. 63, a case very much in point, wherein the court held, pp. 70, 71:

“We are inclined to hold, upon the reasoning of well considered authorities, that the void character of such a transaction as to future creditors does not depend upon fraudulent intent, and that when a stockholder, with the knowledge he has or with that with which he is charged concerning the financial condition of the corporation, engages in a transaction which results in a depletion for his advantage of corporate assets below the subscribed capital or below existing liabilities, as the law may be, and becomes a party to the solvent appearance of a business that is intended to be continued, he is bound by his act both to existing and future creditors, when its direct object or immediate consequence is the insolvency of the corporation and injury to creditors.”

See also, Atlanta & W. Butter & Cheese Ass’n v. Smith, 141 Wis. 377, 123 N. W. 106; Brenaman v. Whitehouse, 85 Wash. 355; Maryland Trust Co. v. National Mechanics’ Bank, 102 Md. 608.

It will be noted from an examination of the foregoing authorities, that some of the courts predicate liability upon the theory that the capital stock of a corporation is a trust fund for the payment of its corporate debts and that the shareholders of the corporation are charged with notice of the trust character which attaches to it; that they are, to all intents and purposes, privies to the trust and hold the stock subject to all equities which attach to it, irrespective of whether there were fair dealings or actual or constructive fraud between the parties or fraudulent intent on their part in so doing, — which theory still obtains in this State (Olmstead v. Vance & Jones Co., 196 Ill. 236, and cases there cited). Others base it upon the doctrine that shareholders receiving dividends the payment of which depletes the capital of the corporation, which afterwards becomes insolvent, are guilty of a constructive fraud as to creditors who became such subsequently thereto.

In our opinion, a stockholder who disposes of his stock with knowledge that the money received in payment thereof is taken from corporate funds, resulting in a depletion of the capital stock of the company, and with the further knowledge that the company is to continue doing business, should, in the event it afterwards becomes insolvent, be held accountable for the money thus received to creditors who subsequently extend credit to the company in ignorance of the fact that such depletion of the capital stock has taken place.

In arriving at this conclusion, we are not unmindful of the fact that the authorities on this question are inharmonious. However, we shall not prolong this opinion with an analysis of them. Suffice it to say that in our opinion the conclusion here reached conforms to the trend of modern authority.

The further point is made by appellant, that in the event appellees are held liable, interest should be allowed on the respective stuns received by them, from July 8, 1907.

It will be seen that up to the time the Turnbull-Joiee Lumber Company became insolvent the liability of the appellees was purely contingent and the amount thereof was unliquidated until the claims of all creditors were filed against the bankrupt estate, the assets thereof converted into cash and the exact amount of the deficiency ascertained. It appears that the deficit was determined and demand made upon the appellees for the return of the moneys received by them respectively, immediately before the institution of this suit, which was begun December 28, 1911. Interest should therefore be computed and allowed from said last-mentioned date.

Accordingly the order dismissing the bill of complaint will be reversed and the cause remanded with directions to enter a decree as hereinabove outlined.

Reversed and remanded with directions.


text:
    The J. L. Mott Iron Works, Appellee, v. Nathan Rosenzweig and Maimonides Hospital. Nathan Rosenzweig, Appellant.
    Gen. No. 23,668.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Action by The J. L. Mott Iron Works, plaintiff, against Nathan Rosenzweig and Maimonides Hospital, defendants, to recover on a note. From a judgment for plaintiff for $1,902.05, defendant Rosenzweig appeals.
    Abstract of the Decision.
    Bills and notes, § 433* — when parol evidence is inadmissible. Parol evidence is inadmissible to contradict or vary the contract implied from the indorsement of a note by showing that the indorser was to incur no liability thereon.
    Hyman Soboroff, for appellant.
    Bryan, McCormick & Wilber, for appellee.
   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Charles Peterson, Appellee, v. William Sumner Smith, Appellant.
    Gen. No. 23,541.
    1. Assumpsit, Action op, § 44

       — when action for money had and received lies. It is not essential to the maintenance of an action for money had and received that the facts should be such as to imply a contract to repay, and hence the action may be maintained where, under an agreement between plaintiff and defendant, a credit with a third person was to be transferred to a corporation and plaintiff signed an order which he supposed directed such transfer, but which in fact directed its transfer to the defendant.
    2. Assumpsit, Action op, § 45* — when action for money had and received lies. The action of money had and received is not confined to cases where the defendant actually received the money which it is sought to recover, but it also lies where the defendant has received credit or other property which is the equivalent of money, and for which in equity and good conscience he ought to pay.

      Appeal from the Municipal Court of Chicago; the Hon. Eubank H. Gbaham, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Albert N. Powell, for appellant.
    W. W. Kent, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff by the Municipal Court of Chicago on trial by the court without a jury.

Plaintiff sued for money had and received by defendant by reason of an alleged mistake by which plaintiff transferred to defendant a credit of 2,000 marks or $480, being a payment which plaintiff made to a Berlin firm on account of lamps which he had purchased from them.

The affidavit of merits denied any mistake in the transaction and generally denied that the defendant was liable in equity and good conscience to the plaintiff as alleged in the statement of claim.

The evidence for plaintiff tended to show that in January, 1914, at Chicago, the plaintiff met one Gustave Cohn who was representing the firm of Hugo, Krolik & Wolf, of Berlin, Germany. Cohn in behalf of the Berlin firm made an arrangement with the plaintiff by which the firm purported to convey to plaintiff exclusive rights for the sale in the United States and Canada of certain lamps manufactured by them. As a part of the transaction plaintiff gave an order for these lamps to the Berlin firm and in payment therefor sent the firm 2,000 marks.

About one week later while in Cohn’s office plaintiff met defendant Smith and was surprised to find that Smith had a similar contract with the same firm for selling these lamps, and had also given a similar order for lamps.

When the true situation was discovered, conferences were held in an endeavor to straighten out the matter. It appeared that defendant and one Anderson had caused preliminary steps to be taken for the purpose of organizing a corporation known as the North American Specialty Company which was to deal in these goods. It was arranged that defendant and plaintiff should each transfer all their rights under their respective contracts with the Berlin firm to this corporation, accepting stock in the corporation according to their respective interests.

In pursuance of this agreement plaintiff signed an order prepared by Cohn which plaintiff supposed directed the Berlin firm to credit upon the account of the North American Specialty Company the 2,000 marks which plaintiff had paid. As a matter of fact, the order did not direct the transfer of this credit to the corporation, but on the contrary directed its transfer to the defendant Smith.

Upon discovering the mistake plaintiff wrote Hugo, Krolik & Wolf asking them to return his money. They refused to do so, stating that the same had already been applied on the account of the defendant Smith. The lamps in question were sent by the Berlin firm to Smith. He never turned them over to the corporation, nor was its organization ever completed, nor did it engage in business as contemplated by the parties.

There was testimony for the defendant tending to show that on March 14, 1914, defendant Smith complained to Hugo, Krolik & Wolf of the actions of their agent Cohn and asked to have defendant’s order for lamps canceled. It is, however, established by the evidence that he did not refuse to receive the lamps upon their delivery in Chicago, but on the contrary accepted them.

When demand was made by plaintiff on defendant for the amount of the credit which defendant had received from the Berlin firm by reason of the payment made by plaintiff, the defendant notified plaintiff to call and get the lamps “that you .claim is yours within 5 days.” He also demanded a certified check for the storage, freight, duty, insurance and interest, and threatened to sell the lamps unless his demand was complied with.

No propositions of law were submitted to the court by either party, but the one affirms and the other denies that under these facts plaintiff is entitled to recover as for money had and received.

Appellant contends that the evidence must disclose a relationship between the plaintiff and defendant of such a nature that a contract to pay this money may be implied therefrom. He insists that there was an express contract between the parties here as the subject-matter in controversy, and that the law will not therefore imply one (Willard v. Pittsburgh, C., c. & St. L. Ry. Co., 162 Ill. App. 427), and that the plaintiff, therefore, cannot recover and the trial court erred in refusing to grant a motion to strike the statement of claim for this reason.

We think appellant misapprehends the nature of the action. It has often been said that the action for money had and received rests upon an implied contract. This is not always true as a matter of fact.

The action was not known to the common law. It was a well-recognized rule of the civil law from which it was adopted. The fiction of an implied contract was invented by the common-law judges “in order to fit an exorable remedy to a new situation.” As was stated in Board of Highway Com’rs v. City of Bloomington, 253 Ill. 173:

“After subtracting express contracts and contracts implied in fact, there is still left another large class of obligations, to enforce which the action of general assumpsit is a well established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles, derived from the civil law. This obligation was under the civil law designated ‘ quasicontractus.’ Stated as a civil law principle, it was ‘an obligation similar in character to that of a contract, but which arises not from an agreement of parties but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obligation springing from voluntary and lawful acts of parties in the absence of any agreement. ’ (Howe’s Studies of Civil Law, 171; Morey on Eoman Law, 371.) In quasi contracts the obligation arises not from consent, as in the case of contracts, but from the law or natural equity.”

The phrase “money had and received” might seem to imply that the right to recover is restricted to cases in which the defendant has actually received the money which it is sought to recover. This is not true. On the contrary, the action also lies where the defendant has received credit or other property which is the equivalent of money and for which in equity and good conscience he ought to pay. Gordon v. Johnson, 186 Ill. 31.

Appellant has called our attention to the case of Ellis v. Ohio Life Insurance & Trust Co., 4 Ohio St. 628, holding that in actions of this kind, where the mistake arises from fault or negligence of the party making the demand or paying the money and recovery cannot be had without prejudice to the party who has received it, the action will not lie. We do not question the correctness of the rule there announced. The evidence of the respective parties on that issue was received by the trial court and the finding was against appellant on the facts. The court evidently held that this defense was not established. We cannot say that the finding of the court in that regard is against the weight of the evidence. Podolski v. Stone, 186 Ill. 549.

Appellant also contends that the right of action, if any exists, is in the North America Specialty Company rather than the plaintiff. There is no evidence in the record to sustain such contention. Plaintiff’s interest in this credit was never in fact transferred to the corporation so as to enable it to maintain an action.

The judgment will be affirmed.

Affirmed.


text:
    Auto Parts Company, Appellee, v. Joseph Silverstein and Sam Goodman, Appellants.
    Gen. No. 23,594.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 62

       — what is extent of protection in use of corporate name. A corporation in business is entitled to protection in the use of the name under which it is incorporated to the same extent as an individual would be entitled to protection in the use of his individual name.

      Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Bill by Auto Parts Company, complainant, against Joseph Silverstein and Sam Goodman, defendants, to enjoin the latter from doing business under the name “Auto Sales and Parts Company.” From a decree for complainant, defendants appeal.
    Rudolph Wolfner and Reuben J. Feldman, for appellants; Rudolph Wolfner, of counsel.
    No appearance for appellee.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

2. Trade-marks and trade names, § 23 — when relief granted against use of generic or descriptive name. While names which are generic terms or merely descriptive are the common property of the public, and a private property interest cannot be acquired, relief will be granted where a name of this character has been adopted under circumstances which make it appear that the purpose of adopting such name was to mislead the general public.

3. Trade-marks and trade names, § 22* — what is duty of trader adopting trade name similar to one in use. Regardless of fraudulent intent or actual injury, it is the duty of a subsequent trader to adopt affirmative precautions sufficient to make confusion and deception in the use of a similar trade name improbable.

4. Trade-marks and trade names, § 24* — what constitutes unfair competition in use of corporate name. The use of the name “Auto Sales and Parts Company” held to constitute unfair competition as to an older and established concern trading, under the name “Auto Parts Company,” there being evidence that confusion resulted and no evidence of an innocent intention in making use of a name so similar.

5. Appeal and error, § 1399* — when findings of master not disturbed. Findings of the master approved by the chancellor will not be set aside unless clearly and manifestly against the weight of evidence.

6. Equity, § 404* — when amount of costs taxed for master's fees may not be complained of. The fact that the costs taxed for master’s fees are in excess of the amount requested by the master affords no ground for complaint where they are much less than the statutory fees.


text:
    Edson R. Gilbert and William H. Dunn, Appellants, v. Robert M. Sweitzer, County Clerk, et al., Appellees.
    Gen. No. 23,630.
    (Not to be reported in full.)
    Abstract of the Becision.
    1. Appeal and error, § 1718

       — what constitutes waiver of constitutional Questions. An appeal to the Appellate Court constitutes a waiver of all questions as to the constitutionality of statutes raised in the court below.
    2. Injunction, § 191* — when Mil to enjoin payment of salaries to probation officers under Juvenile Court Act is insufficient. Bill to enjoin payment of salaries of probation officers appointed under the Juvenile Court Act on the ground that such appointment was made by the judges without request from the clerk of the Circuit Court, and was without warrant of law; that the order of appointment designated such officers by names descriptive of the duties to he performed by them, such as “Director Juvenile Psychopathic Institute,” etc., and that the act was being maladministered, held insufficient to state a cause of action.

      Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Bill by Edson R. Gilbert and William H. Dunn, complainants, against Robert M. Sweitzer, as county clerk of Cook county, and Henry Stuckart, as county treasurer, defendants, to enjoin the payment of salaries to 115 persons holding positions as probation officers in the Juvenile Court of Cook county. From a decree dismissing the bill for want of equity, complainants appeal.
    Charles S. McNett, for appellants.
    Maclay Hoyne and Robert E. Hogan, for appellees; Holt, Cutting & Sidley, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Andrew P. Gustavson, Appellee, v. George C. Hester, Appellant.
    Gen. No. 23,682.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 3

       — when negligence of respective drivers of colliding automobiles is question for fury. Conflicting evidence held to present a question for the jury as to the negligence of the respective drivers of two automobiles colliding on a public street while proceeding in opposite directions.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tothiix, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Action by Andrew P. Gustavson, plaintiff, against George C. Hester, defendant, to recover damages for personal injuries sustained in an automobile collision. From a judgment for plaintiff, defendant appeals.
    Zimmerman, Garrett & Rundale, for appellant.
    Edward H. Taylor, for appellee; Leland V. Pierson, of counsel.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

2. Automobiles and oarages, § 3 — when instruction is erroneous because directing verdict and omitting question of due care. In an action for injuries caused by an automobile collision, an instruction which informed the jury as to the law of speed applicable as expressed in the words of the statute and then directed that “if you believe from a preponderance of the evidence in this case that the defendant drove his car in violation of the law herein set forth and caused the damage and injury to the plaintiff * * * then you should find the defendant guilty,” is erroneous as directing a verdict and omitting the question of due care on plaintiff’s part.

3. Negligence, § 202* — when question of imputed is one of fact. The question of whether a minor driving an automobile is under such control of the parent as to render the minor’s negligence imputable to the parent so as to bar his recovery for injuries is a question of fact.

4. Negligence, § 157* — when burden lies upon plaintiff to show exercise of due care. The burden is upon plaintiff, in an action for personal injuries negligently inflicted, to show that at the time of the injury he was in the exercise of due care.

5. Appeal and ebror, § 369* — when theory of case may not be changed on appeal. Where plaintiff tried the case below on the theory that his minor son, who drove the automobile in which he was riding, was his agent and driving in his behalf, he cannot on appeal change his theory so as to claim that the negligence of the son was not imputable to him.


author: Mr. Presiding Justice Taylor

text:
    William C. Niblack, Receiver, Defendant in Error, v. John W. Farley, Plaintiff in Error.
    Gen. No. 23,518.
    1. Bankruptcy, § 85

       — what does not constitute new promise. Evidence that the partnership of which defendant was a memher executed two notes to a national bank, one for $10,000 and the other for $1,500, which defendant indorsed; that thereafter the partnership and defendant were adjudicated bankrupts and that after such adjudication defendant executed to a State hank which had purchased the assets of the national bank a note for $11,500, held insufficient to show that the latter note was executed by reason of the moral obligation to pay the old indebtedness as against defendant’s undisputed testimony that the note was given purely as an accommodation “to show the bank examiner.”
    2. Banks and banking — when maker of note not estopped to show want of consideration in action 6y hank receiver. A note given to a bank purely as an accommodation “to show the bank examiner” does not estop the maker from disputing liability on the ground of want of consideration, in an action by the receiver of the bank, where there is no evidence that any creditor was prejudiced or suffered any detriment .by reason of such act.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with a finding of fact.
    Opinion filed June 19, 1918.
    Petition for rehearing stricken July 5, 1918.
    Roberts & Swain, for plaintiff in error.
    Lewis, Fox, Blumberg & Adelsdorf and Hiram T. Gilbert, for defendant in error; Joseph W. Moses and Henry Jackson Darby, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The plaintiff, William C. Niblack, as receiver of the La Salle Street Trust and Savings Bank, having recovered judgment in assumpsit against the defendant, John W. Farley, in a trial before the court, without a jury, this appeal was taken therefrom.

The declaration consists of (1) a special count upon a promissory note dated May 24, 1913, for $11,500,- for value received, due on demand, payable to the order of the La Salle Street Trust and Savings Bank; and (2) the common counts. The defendant pleaded (1) the general issue; (2) want of consideration; (3) a discharge in bankruptcy. The plaintiff demurred to the plea of discharge in bankruptcy, and upon the demurrer being overruled, filed a replication averring a new promise made by the defendant on May 24,1913, a time subsequent to the date on which the petition in bankruptcy was filed. To the latter replication the defendant rejoined, denying the new promise.

On October 16, 1911, John W. Farley and Company, having borrowed $10,000 from the La Salle Street National Bank, gave a promissory note to the latter bank signed with the firm name, payable in 90 days thereafter, and indorsed by the defendant, John W. Farley. On November 28, 1911, the same firm borrowed the further sum of $1,500 from the La Salle Street National Bank and gave therefor a demand note executed by the firm and similarly indorsed by the defendant. On December 12, 1911, John W. Farley and John A. Murphy, individually and as copartners, trading as John W. Farley and Company, filed their petition in bankruptcy in the District Court of the United States and were, on that day, adjudged bankrupt. The two notes above mentioned were duly scheduled and filed and on December 27, 1911, proven. Since .then, neither in the bankruptcy proceedings nor otherwise has any part of the two notes, nor any interest thereon, been paid by any of the makers or indorsers. At the trial in the lower court, a certified copy of an order of the District Court of the United States in bankruptcy that the plaintiff, as surviving partner of John W. Farley and Company, be discharged from all debts and claims provable against his estate and which existed on December 12,1911, was offered in evidence, but, on objection to its admissibility being made by the plaintiff, it was ruled out. On October 21, 1912, the La Salle Street National Bank was denationalized and on that date the La Salle Street Trust and Savings Bank was chartered and came into existence. On that day the La Salle Street Trust and Savings Bank passed the following resolution:

“In consideration of the transfer and assignment by the La Salle Street National Bank of Chicago, of its cash, accounts receivable, bills receivable, bonds, stock, accounts and all other assets and credits of any nature or any kind to the La Salle Street Trust and Savings Bank of Chicago, this bank agrees to and does assume all the indebtedness of the La Salle Street National Bank of Chicago, of whatever kind or nature,” etc. Subsequent and pursuant to that resolution the assets of the La Salle Street National Bank were taken over by the La Salle Street Trust and Savings Bank and the latter acted as liquidating agent, as far as was necessary, under the National Banking Act. On November 28, 1911, the two original promissory notes of October 16, 1911 and November 28, 1911, were in the possession of the La Salle Street National Bank and so remained until October 21,1912, at which time, pursuant to the resolution of October 21,1912, they passed into the possession of the defendant, the La Salle Street Trust and Savings Bank. During the pendency of the bankruptcy proceedings of the defendant and until October 21,1912, the two notes of October 16,1911 and November 28, 1911, respectively, were carried on the books of the La Salle Street National Bank as “live notes,” that is, they were not, even after- Farley’s bankruptcy, charged off to profit and loss; and after October 21, 1912, when they were turned over by the La Salle Street National Bank to the La Salle Street Trust and Savings Bank — though without being indorsed — they were carried by the La Salle Street Trust and Savings Bank “as live assets for their face amount up to the time of the failure of the latter bank on June 12, 1914.”

On May 24, 1913, the defendant executed and delivered to the La Salle Street Trust and Savings Bank a demand promissory note in the sum of $11,500, being the note that is specially declared upon by the plaintiff. The testimony of the defendant, which is not materially contradicted by other testimony but which, it is claimed, is qualified by inferences from other circumstances which are in evidence, is to the effect that on May 24, 1913, he had a conversation with one Charles B. Munday, the vice president of the La Salle Street Trust and Savings Bank, in which the latter asked bim to give him an accommodation note; that he, the defendant, “told him a note from me would not be worth anything”; that Munday then said, “You expect to be in business here in Chicago, don’t you?”, to which the defendant answered, “Yes”; that Munday then said, “You go right along in yo-ur business and if you require any accommodations in the bank you come in and we will let you have what you want to carry on yo-ur business. I want a note from you to show to the bank examiner”; that, further, Munday then asked bim “as an accommodation to him to give him my note that he might show it to the bank examiner when he come (sic) around”; that he, the defendant, answered, “All right, Mr. Munday, I will do so”; that he,- the defendant, then signed that note; that he never received any consideration or any money for the note; that in that conversation nó mention was made of any former notes; that nothing was said by Munday to the effect that he wanted the defendant to renew the old notes with the La Salle Street National Bank; that Munday did not write out the note himself; that 1 ‘ a young man in the cage” wrote the note; that there was no connection in his, the defendant’s, mind between the amount of the old notes being for $11,500, and the new note being for a like sum; that when he went into the La Salle Street Trust and Savings Bank on May 24, 1913, he went there because Munday asked him to call and see him; that when Munday said, “I want some paper to show the bank examiner” he, the defendant, answered that he did not think his note would be much account to him at that time; that he understood that the note was to remain in the bank to show the bank examiner as an obligation of his, the defendant; that he understood that Munday “wanted some accommodation paper to show the bank examiner when he came around”; that he signed the new note to accommodate Mr. Munday; that the new note had no connection with any old or overdue note; that he knew, at that time, that he had not been discharged in bankruptcy; that he gave the note as an asset of the La Salle Street Trust and Savings Bank to show to the bank examiner. The evidence of Spohr, who was at one time a bookkeeper and clerk for the La Salle Street National Bank and from October 21, 1912, to April, 1914, auditor for the La Salle Street Trust and Savings Bank, was to the effect that the note of May 24, 1913, for $11,500, was examined by one of the bank examiners of the State of Illinois— the time is not given — and considered and treated by him as an obligation of the defendant. He also testified that the $11,500 note was given to take up the two prior notes, but evidently that was only an opinion and not a statement of facts which he knew of his own knowledge, as he stated that he never saw the defendant.

The evidence shows that on June 19, 1914, William C. Niblack was appointed receiver of the La Salle Street Trust and Savings Bank “and all its effects and assets with the usual powers of receivers in such cases and that the said La Salle Street Trust and Savings Bank” was directed to transfer and assign all its property of every kind to the said receiver. On August 3, 1914, an order was entered in the receivership case in the Circuit Court authorizing William C. Niblack, the receiver, to institute and prosecute, in his own name, as such receiver, “any and all suits of law and in equity which he may deem necessary or advisable for the collection of moneys now due or which may hereafter become due to said La Salle Street Trust and Savings Bank.” On December 4, 1914, the present cause of action was begun by the receiver and on June 11, 1917, the trial judge — the cause being tried without a jury — entered judgment for the receiver in the sum of $13,845.44 and costs.

It is contended by the appellant that there was no consideration for the promissory note for $11,500, dated May 24, 1913, which is declared on specially; and that there can be no recovery under the common counts. At the outset, two questions of fact arise: (1) Was the note for $11,500 given by reason of a moral obligation to pay the old indebtedness represented by the two notes, one of $10,000 and one of $1,500, which had been scheduled in the bankruptcy proceedings? (2) Was the note for $11,500 given solely as an accommodation and for the purpose of being treated and considered as an asset of the bank by the bank examiner?

(1) The evidence of the defendant as to what transpired at the time the $11,500 note was made, standing alone and believed, would be sufficient proof that it was not in any way given as the result of the existence of a prior indebtedness growing out of the two prior notes. The defendant testified that he signed the new note to accommodate Munday and that it had no connection whatever with any old or overdue notes; that it was given that it might be used as an asset of the bank to show the bank examiner. The only evidence in contradiction lies in inferences to be drawn from the history of the two prior notes. They aggregated $11,500; they had been indorsed by the defendant; they had been' delivered to the La Salle Street National Bank; they had been scheduled as a liability of the defendant in the bankruptcy proceedings and nothing had ever been paid on them. They had been carried on the books of the La Salle Street National Bank as “live notes” until October 21, 1912, and thereafter on the books of the La Salle Street Trust and Savings Bank as “live assets for a face amount” up to the time of the failure of that bank on June 12,1914, and, therefore, to a time long subsequent to the giving of the new note of May 24,1913. Spohr testified that the $11,500 note was a renewal, but he knew nothing of the facts occurring at the time the note was given. He had never seen the defendant and so was not present when the note was given. It is insisted by counsel for the appellee that the story of the defendant is unworthy of belief. There is no doubt but that the evidence, all taken together, gives rise to a strong suspicion that the $11,500 note was given by reason of the former outstanding indebtedness. The mere fact that the two amounts were equal, that is, the total amount of the old notes and the amount of the new note, however, is not necessarily conclusive proof that there was a relationship between them; nor is the fact, that the old indebtedness had not been paid, conclusive. It is true those facts are consistent with the claim of appellee and incline the mind strongly to suspect that the note of $11,500 was given to take the place of the old indebtedness. But, the uncontradicted testimony of the defendant, even though it may not be especially plausible, must yet be considered; for, although highly improbable, it still may be true. Skeptical though we are, after a careful analysis of all the evidence, we feel bound to conclude that it was not only insufficient, but manifestly insufficient to prove that the new note was given in any way, moral or otherwise, owing to the indebtedness evidenced by the old notes.

(2) Was it given as an accommodation and that it might be considered and treated by the bank examiner as an asset of the bank? The evidence sufficiently shows that it was; that is the admission and contention of the defendant; and the first point in the brief for the plaintiff is founded on that assumption. It ‘ may be said, incidentally, that counsel for the plaintiff argue that the defendant may be believed on that subject but is entirely unworthy of belief when he says the note was not given for the “moral consideration.” Of course, if it was given for the “moral consideration” it was not given as an accommodation and merely to swell the seeming assets of the bank; the two purposes are incompatible. We have already stated, however, our conclusion that the evidence does not prove that the note was given by reason of the “moral consideration”; and that that conclusion was reached partly by reason of the defendant’s testimony.

We shall, therefore, now, assume his testimony as to the history of the note to be true, and proceed to consider the question of law, whether the circumstances testified to show an estoppel. The important facts are that at the instigation of Munday, the vice president of the bank, the defendant gave the note for the accommodation of the bank, and that it might be shown to the bank examiners; and that subsequently it was examined by them and treated and considered as an asset of the bank; and that the defendant never got anything for it. Farley occupied no fiduciary position in regard to the bank and cannot be said to have been in any way interested in the continuance of the bank as a going concern. Is he now estopped from denying liability?

It is claimed by the defendant that the note was given as an accommodation and without consideration; and, therefore, may not be sued upon by the receiver; and it is claimed by the plaintiff that even if the defendant gave the note merely for the purpose of haw ing it considered and treated by the bank examiner as an asset of the bank, and it was so considered, want of consideration is no defense. The plaintiff relies chiefly upon the case of Golden v. Cervenka, 278 Ill. 409, and certain New York and Pennsylvania cases, and the Michigan case cited therein. The defendant undertakes to distinguish the Golden case and to rely upon the law as stated in Chicago Title & Trust Company v. Brady, 165 Mo. 197, and certain federal cases. In the Golden case the Central Trust Company was held liable because (1) the $1,250,000 — in currency and specie — did not remain “subject to the control and disposition” of the officers of the La Salle Street Trust and Savings Bank after the latter “was authorized to commence business and until it was subsequently checked out by the authorized officers in the regular course of business”; (2) because the Central Trust Company, having represented .that the $1,250,000 shown to the auditor was the property of the La Salle Street Trust and Savings Bank and “having immediately taken and retained possession of it to the exclusion of the Bank,” it (Central Trust Company) must make good its representation and account for the money so wrongfully taken by it; and (3) because the Central Trust Company assisted in the procurement of the auditor’s certificate and “is estopped as against creditors who had a right to rely upon the auditor’s certificate, to deny that the cash exhibited was the property of the Trust and Savings Bank,” etc. The amount of the liability of the Central Trust Company —and which was stated by the court to be only to creditors — was for the difference between the amount of the capital and surplus of the La Salle Street Trust and Savings Bank and the value of the assets of the La Salle Street National Bank on the date of the transfer. The court interpreted the evidence as showing that the Central Trust Company, by taking back the million and a quarter of cash which had been shown to the examiner .as the money of the La Salle Street Trust and Savings Bank, and in not leaving it with the latter until it was “checked out by the authorized officers of the bank in the regular course of business,” was guilty of taking funds which did not belong to it. The facts in that case and in the instant case are not even similar. Here the defendant did not take anything from the bank, as the Central Trust Company did; nor did he assist in helping the bank to obtain something of value — such as the auditor’s certificate — to which it was not legally entitled. He gave his note as an accommodation for which he received nothing, and the bank retained it. The bank lost nothing and its creditors, as far as the proof shows, suffered no detriment. The bank and its creditors had no less afterwards than before. And there is no evidence that the presence of that note had any bearing whatever on the continuance in business of the bank. Are we entitled, without evidence, to assume that it did? And if we are, even then, are we also further to assume that because the bank did continue longer in business by reason of the presence of the defendant’s note, that continuance was a detriment to its creditors? The note was given on May 24, 1913, and the receiver was appointed on June 19, 1914. Does it not seem reasonable, therefore, to conclude that such conjectures as to possible detriment to the creditors are insufficient to justify an estoppel?

There is a text in the Golden case, supra, to the effect that it has been held that where notes have been given to a bank “for the purpose of making an appearance of assets, so as to deceive the examiner and enable the bank to continue business, although the circumstances may have been such that the bank itself could not have collected the securities,” the receiver, representing creditors, could maintain an action, “and the makers were estopped, upon the insolvency of the bank, to allege want of consideration.” The following cases are cited in support of it: Best v. Thiel, 79 N. Y. 15; Sickles v. Herold, 149 N. Y. 332; State Bank of Pittsburg v. Kirk, 216 Pa. 452; People’s Bank of California v. Stroud, 223 Pa. 33; Lyons v. Benny, 230 Pa. 117; Dominion Trust Co. v. Ridall, 249 Pa. 122. The Stroud case need not be considered as it is not, as a decision, relevant. In four of the remaining five cases, the securities were not given by a stranger, but by trustees, stockholders or directors, or, as in one case, by a former treasurer. In the latter case (Dominion Trust Co. v. Ridall) the strongest in dicta, there was no evidence that it was agreed that the securities (mortgages) should not be enforced; so that liability was inevitable. Only in one of the cases cited — the Lyons case — was the security given by a stranger, and in that case it was given expressly to take the place of the note of another, which latter note had been objected to by the bank examiner. Thus it is seen that neither the actual decision in the Golden case, supra, nor the cases cited in support of the above-mentioned text, go so far as to hold that the acts of the defendant in the instant case create an estoppel. In Chicago Title & Trust Co. v. Brady, supra, where certain notes were given by the defendant in order to help the bank, the assets of which were decreasing, and for which notes the defendant received a written statement that they were accommodation notes, the court held that as a defense for want of consideration would have been good in a suit by the bank, it must be held to be good against the action of the receiver. Cutler v. Fry, 240 Fed. 238.

Of course, even if the defendant were liable by estoppel, he would only be liable secondarily to the creditors in case there was shown to be a deficit after the liability of the stockholders had been enforced. As the La Salle Street Trust and Savings Bank obtained the note for the purpose of deceiving the bank examiner, it, of course, qua bank, could not recover on the note; to hold otherwise would be to allow the bank to profit by its own fraud. As the court said in Agricultural Bank v. Robinson, 24 Me. 274: “When the law shall conclude that an agreement between two persons to deceive and defraud a third constitutes a valuable consideration for the contract between themselves, he may; but not till then.” In the instant case, there is no evidence in the record, not only that any stockholder but even that any creditor, has actually suffered by reason of the making of the note. “And the court cannot properly enter upon a wide range of conjecture and infer that some one must have suffered by it because the assets of the bank, as an insolvent corporation, were nearly four years (here about one year) afterwards placed in the hands of receivers.” Agricultural Bank v. Robinson, supra. Further, as the capital stock and surplus of the bank aggregated a million and a quarter, what practical effect did the acceptance of the defendant’s note for $11,500 have on the mind of the bank examiner, especially when, at that very time, the defendant was in bankruptcy1? There is an entire want of evidence to show that the giving of the note in any way affected the determination of the bank examiner, or that it had any influence upon the continuation of the bank in business; or, if it did influence the bank examiner, and did lend to the further continuance of the bank in business, that the bank was better or worse off by reason of continuing in business from May 24,1913 to June 19, 1914.

Certainly it was wrong and in violation of honest dealing for the defendant to agree with the vice president to give his note that it might be used to cheat the bank examiner, and as certainly there ought to be some method of punishing such an offense; but as this is a civil proceeding for the benefit of the creditors of the bank and the evidence fails to show that any creditor was personally prejudiced or injured, or suffered any detriment by reason of the defendant’s misconduct, and as, therefore, one of the well-known necessary elements creating an estoppel is wanting (Bigelow, Estoppel, 5th Ed. 638; Davis v. Bowmar, 55 Miss. 671; Shaw v. Spencer, 100 Mass. 382; Payne v. Burnham, 62 N. Y. 69), we are of the opinion that, under the law, the note of $11,500 must be considered as having been shown to be merely an accommodation and without consideration, and that, therefore, the plaintiff cannot recover. Accordingly, the judgment must be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. We find as a fact that there was no consideration for the promissory note in suit; that there was no indebtedness such as was claimed by the defendant in error and that the creditors of the bank were not injured by the giving of the note.


text:
    Robert Quait, Appellee, v. Horace L. Wortham, Appellant.
    Gen. No. 23,572.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by Robert Quait, plaintiff, against Horace L. Wortham, defendant, upon a written contract for the payment of a certain annual sum upon stock purchased from defendant. From a judgment for plaintiff, defendant appeals.
    Moses, Rosenthal & Kennedy and R. K. Welsh, for appellant.

      Abstract of the Decision.
    Evidence, § 345* — when parol is inadmissible as tending to modify written contract. Contract in writing under which plaintiff agreed to purchase stock from defendant, the latter to have the option to repurchase within 5 years, to vote the stock during that time, to receive the dividends thereon and to pay plaintiff a certain sum per year “during the time” he held the stock “and not otherwise,” held unambiguous, and parol evidence of a prior oral agreement that said sum was to he paid only during the option period of 5 years was properly excluded as tending to modify the written contract.
    O’Shaughnessy & O’Shaughnessy, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mb. Presiding Justice Taylor

text:
    Frank S. Frost, Appellee, v. C. E. Heath, J. C. Follett, C. Heath, A. L. Whatman, A. Burns and M. Evans, as Underwriters at Lloyds, Appellants.
    Gen. No. 23,718.
    1. Automobh.es and garages, § 7

       — when identity of recovered stolen oar shown. Evidence in an action upon a theft insurance policy on an automobile, held sufficient to identify an automobile recovered and tendered to the insured as the stolen car.
    2. Account stated, § 3* — what does not constitute. Where a theft insurance policy on an automobile gave the insurer 30 days after proof of loss in which to make payment, and before the expiration of the 30-day period the insurer and the insured adjusted the loss on the machine, the former drawing a draft for the amount and delivering it to the latter, hut stopping payment on it the next day because of information that the stolen car had been found, the transaction did not amount to an account stated so as to permit of an independent action thereon.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed June 19, 1918.
    John A. Bloomingston, for appellants.
    Joseph C. Pisha, for appellee.

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

   Mb. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal from a verdict and judgment in favor of the plaintiff, Frank S. Frost, in the sum of $402.16.

Plaintiff’s statement of claim filed November 11, 1915, recites that the defendants, on October 19, 1915, were indebted to the plaintiff in the sum of $372, “for money found to be due, from the defendant to the plaintiff, upon an account then and there stated between them.” On December 24, 1917, the defendants filed an affidavit of merits in which they denied that there was an account stated or that there exists any indebtedness between them.

In September, 1914, one Ward bought a Ford roadster of the Ford Motor Company. The car number was 529,783 and the motor number, 561,658. Subsequently, in the early part of December, 1914, he traded that automobile in to the Overland Motor Company, as part of the price of a secondhand Overland automobile. In December, 1914, the plaintiff bought the Ford roadster bearing car number 529,783, and motor number 561,658, from the Overland Company. The Ford was a 1915 model. On December 17, 1914, the plaintiff took out a Lloyd’s motor car insurance policy with the defendants. The policy provided for indemnity in case of theft, and was for $500 and expired on December 17, 1915. In August, 1915, the automobile was stolen from the plaintiff’s premises at 1520 South Hamlin avenue. On October 19, 1915, proper proof of loss was furnished to the defendants and — being 60 days after the time the automobile was stolen — the loss was appraised and adjusted at $372.50. The policy provides that the loss is payable “within thirty days after such loss is proved.” On October 25, 1915, between 5:00 and 5:30 p. m., one Waibel, an insurance broker, representing the plaintiff, communicated with A. F. Shaw and Company, who represented the defendants, in regard to the payment of the loss, and, accordingly, A. F. Shaw and Company, representing the defendants, delivered to Waibel a draft for $372. On October 24th and on the morning of October 25, 1915, one Hedge made some inquiries of Waibel, the insurance broker who wrote the policy in controversy here, in regard to obtaining a reward for finding the rightful owner of the plaintiff’s automobile, asking who it was that insured the automobile.

The draft reached the plaintiff on the morning of October 26, 1915. Meanwhile, however, on the ground that A. F. Shaw, the representative of the defendant company had received information through Hedge that the automobile in question had been found, the payment of the draft was stopped. Subsequently, the plaintiff, De Forest, R. R. Shaw and A. F. Shaw, the latter being the president of A. F. Shaw and Company, agent for the defendants, went over to the City Garage and examined the automobile which it was claimed was the plaintiff’s automobile. The evidence showed that the car which Ward bought originally, and which was subsequently purchased by the plaintiff, was a Model T runabout, the original price of which was $448.85; that the body number was 134,366, the factory number, 561,658 and the engine number, 529,783. When the automobile in the City Garage was examined it was found that the regular engine number had been erased and in its stead there was stamped “358,027.” The evidence shows that De Forest, a police officer, having received some information from Hedge, went with the latter to 3215 Crenshaw street and took an automobile — being the one examined in the City Garage — from one Mathews who, when asked where he got the automobile, gave a number on Jackson boulevard which was a vacant lot. De Forest turned over the automobile to the city custodian. The factory plate had been taken off and the original engine number, also, and the other number “358,027” put on by means of a die that was not a regular Ford die. The body number was 134,366, and that was the number used by the police officer to determine the ownership of the car. The original engine number 561,658 and the car number 529,783 were the ones that belonged to the body number 134,366. The body number is under the seat where the gas tank is located and is on a metal plate. At the time of the examination of the automobile in the City Garage, the evidence of A. F. Shaw is to the effect that Frost said, when asked if he was not satisfied that it was his car, that he was not prepared to say that it was or that it was not; that he further said that he had ordered a car and did not want two, and asked why the company did not take the car and give him the money. The witness, Ward, who originally bought the automobile and then turned it in to the Overland Company, testified that the automobile had Hartford shock absorbers; that when he originally bought the car there were no accessories; that he put the electric lights in front, taking off the Ford lights and replaced the Ford side lights with the electric lights, and put on four Hartford shock absorbers, and the battery in the light battery box on the left side; that he had celluloid side curtains put on by the American Auto Top Company; that he went over to the City Garage and examined the automobile in question and found the metal battery box in the same location as he originally had it, and, also, the Hartford shock absorbers all in place; that he found a switch button in front about where he located the electric switch button; that a padlock on the tin receptacle on the back which he originally put on was gone but that the holes were there; that the things he added to the car were practically as he put them on. When asked whether he was sure that the car was one that he formerly had he answered that he “would not be absolutely positive.” The adjustment which was made on October 19, 1915, as to the value of the property lost, was as follows: “Cost of car with top, $375.00; Electric head lights, $4.75; Electric tail light $1.50; Electric dash lights, $1.50; Electric horn, $4.50; Hartford Shock Absorbers, $20.00; Vesta Battery, $18.23; Weed chains, $3.75; 2-30x3 inner tubes, $5.00; 2-30x3% inner tubes, $6.00; 4-Extra Spark Plugs, $2.00; 2-Extra Fan Beits, $0.60; 1-Steel Floor Mat, $2.50; Speedometer, $10.00; Total cost of car and accessories, $455.33. Depreciation, $82.83; Net Loss, $372.50.”

The trial judge instructed, the jury “that when two parties have a settlement and adjust their accounts and agree upon the balance due, neither party can afterwards open the settlement, without first showing that there was fraud practiced on him, or a mistake made, and the burden of proof is upon the party wishing to open the settlement, to show by preponderance of evidence that there was a fraud practiced upon him, or that the party complaining was laboring under a mistake in relation to some matter of fact existing at the time, which entered into or affected the settlement. 'So that if you believe from the evidence that, at the time the settlement in question was agreed upon, the settlement was fairly and honestly entered into, and that the plaintiff was not guilty of any fraud in procuring such agreement for such settlement, then the settlement is binding upon the parties, and the plaintiff would be entitled to recover the amount agreed upon with interest on such sum at the rate of 5 per cent, per annum from the date of such settlement up to date. On the contrary if yon believe from the evidence that at or before the time of the making of such agreement for settlement, the plaintiff was guilty of any fraud, that induced the defendant to enter into such an agreement, you should find the issues in favor of the defendant. As stated the burden is on the defendant to prove by a preponderance of the evidence that there was fraud or mistake in the procuring of the agreement for settlement, and unless you find that the evidence preponderates in favor of the defendant, upon that issue you should find the issues in favor of the plaintiff. ’ ’

The only basis for recovery, alleged in the statement of claim, is upon an account stated. We are of the opinion that the evidence as to the identification of the automobile, the body number and other indicia, prove sufficiently that it was the particular machine covered by the policy in question, and that it was found at the time the draft was stopped. The sole question then remaining is whether adjusting the amount of the loss and the giving of the draft constitute, under the circumstances, such an account stated as would give rise to a new obligation upon which suit might be brought. Although the adjustment and giving the draft seem to suggest an account stated, we are bound to consider that what was done by the parties, they did having in mind all the circumstances and the thing insured against. Theft and inability to recover, or discover the whereabouts of, the automobile was the particular subject-matter of the contract of indemnity. The policy provided that the insurers would make good to the assured all loss, “within thirty days after such loss is proved,” etc. The proof of loss was made on October 19, 1915, so that the defendants had until November 18, 1915, to make payment. The draft was given on October 25, 1915, and was stopped on October 26,1915, before it was presented for payment.

As the defendants had until November 18, 1915, in which to pay the amount of the seemingly probable loss, and that time had not expired when the car was found, and the adjustment of the amount of the probable loss was merely an amicable determination of the value of the automobile, with certain accessories, we are of the opinion that the mere giving of the draft, under those circumstances, and before the expiration of the 30 days after proof of loss, bearing in mind the nature of the contract of indemnity and the subject-matter insured against and that the draft was stopped before payment, did not constitute such an account stated as to justify suit thereon. No rights of third persons intervened and the defendants had the right, when the automobile was found, being prior to the expiration of the 30 days, to stop1 payment of the draft. It stands to reason that if the stolen property is found before the defendants are in default of their liability to pay for it, they should not be bound unless some new binding contract has arisen between the parties. In the absence of evidence to the contrary, and as a practical matter, we must assume that the parties to the adjustment and the draft acted with the understanding that if the automobile was found before the draft was paid, the liability for indemnity then automatically ceased. On account of the errors pointed out, and as the suit is founded upon an account stated and not on the policy, the judgment will be reversed without remanding.

Reversed.


text:
    George W. Plummer, Appellee, v. Edward J. Ader, Appellant.
    Gen. No. 23,818.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 135

       — when evidence sustains judgment for plaintiff in action for legal services. Evidence in an action by an attorney for services rendered defendant in connection with disbarment proceedings against the latter, held to sustain a judgment for plaintiff as against defendant’s contention that plaintiff agreed to perform some of the services without compensation and that he had not retained him to perform other services.
    2. Attorney and client, § 130* — when claim for legal services is not tarred. A claim for legal services is not barred by limitations where the services were performed continuously over a period of years and part of the services were performed within the statutory period.
    3. Judgment, § 205* — when for less than amount plaintiff entitled to sue for is proper. A claim that a judgment for plaintiff cannot stand because he did not sue for as much as the evidence showed he was entitled to recover is without merit.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M, Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by George W. Plummer, plaintiff, against Edward J. Ader, defendant, to recover for legal services rendered defendant in connection with disbarment proceedings against the latter. From a judgment for plaintiff, defendant appeals.
    Johnson & Herr, for appellant.
    Walter A. Lantz, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    William J. Moldenhauer, Appellee, v. Joseph Moskalczuk, Appellant.
    Gen. No. 23,906.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

       — when statement of claim is sufficient in action to recover for medical services. Where the statement of claim in an action by a physician to recover for medical services recites that the action was for medical services, that those services were rendered in specified years and that the amount of the claim is a stated number of dollars, the statement of claim sufficiently complies with the requirements of section 40 of the Municipal Court Act (J. & A. If 3352).
    2. Physicians and surgeons, § 28b* — when verdict for plaintiff in action for medical services is proper. In an action by a physician to recover for medical services, evidence held sufficient to support a verdict for plaintiff.
    3. Physicians and surgeons, § 28b* — when allowance of item of claim for medical services is not error. On an appeal from a judgment for plaintiff in an action to recover for medical services, where there is no evidence in the record of any cross-examination as to one of the items of service which is set up in the statement of facts nor of anything in rebuttal of the claim therefor, the Appellate Court cannot say that the allowance of the claim for such item was error.

      Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by Dr. William J. Moldenhauer, plaintiff, against Joseph Moskalczuk, defendant, to' recover for medical services. From a judgment for plaintiff for $75, defendant appeals.
    James Percival Pio, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    J. Elliot Ainslie, Appellee, v. Joseph H. Biggs, Appellant.
    Gen. No. 23,747.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stouqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Rehearing denied July 5, 1918.
    Statement of the Case.
    Action by J. Elliot Ainslie, plaintiff, against Joseph H. Biggs, defendant, to recover damages for personal injuries alleged to have been caused by being struck by defendant’s auto-truck as plaintiff was starting to cross the intersection of a street and alley, whereby plaintiff’s fibula was fractured. From a judgment for plaintiff for $1,200, defendant appeals.
    Leland V. Pierson, for appellant; Edward H. Taylor, of counsel.
    Winters, Price & Stevens, for appellee; George M. Stevens and J. C. Risk, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Automobiles and garages, § 3 — what does not constitute substantial variance in action for personal injuries caused by auto-truck. In an action to recover for personal injuries alleged to have been caused by defendant’s auto-truck, there is no substantial variance, though the declaration alleges that the “auto-truck then and there ran and struck with great force and violence upon and against the plaintiff and thereby the plaintiff was then and there thrown with great force and violence to and upon the ground,” while the proof shows that plaintiff was not thrown but slipped and fell in attempting, to get out of the way of the truck and was injured.

2. Appeal and error, § 521* — what is insufficient objection as to variance. An objection on the ground of variance between the pleading and proof is not sufficient where it merely states that there is a variance without specifically indicating and pointing out in what the variance consists, in such a manner that the court can rule intelligently and that the pleading may be amended.

3. Appeal and error, § 521*' — When objection as to variance in action to recover for injuries due to auto-truck is insufficient. Where the declaration in an action to recover for personal injuries alleges that plaintiff was thrown down by defendant’s auto-truck and run over by it, whereas the evidence is to the effect that plaintiff slipped and fell in attempting to avoid the truck and was run over by it, an objection on the ground of variance which merely states that plaintiff says that “the automobile truck knocked him down to the ground whereas the witnesses don’t testify to that,” is not sufficiently specific in pointing out the variance.

4. Appeal and error, § 521* — when question of variance cannot be raised on appeal. Where, at the close of plaintiff’s case, defendant objects on the ground of variance and moves that the jury be instructed to return a verdict of not guilty and at the close of all the evidence again moves for an instructed verdict but without raising the question of variance, the court’s ruling on the question of variance cannot be urged as error on appeal.

5. Appeal and error, § 546* — When overruling of motion for instructed verdict may not be complained of. Where a motion made for an instructed verdict on the close of plaintiff’s case is overruled and defendant fails to renew the motion at the close of all the evidence, the court’s ruling cannot be urged as error on appeal.

6. Automobiles and garages, § 3* — When instruction on negligence in operation of truck is not erroneous. In an action to recover for personal injuries through being run over by an auto-truck, it is not error to instruct that the jury may consider the rate of speed at which the truck was being driven at and before the injury, even though there is no specific allegation that the truck was being operated at a dangerous rate of speed, but merely a general charge of negligence in the operation of the truck, where the evidence tends to show that the truck was without lights and no warning was given as it came out of the alley at the entrance of which the accident occurred.

7. Damages, § 207 — when instruction on manner of estimating is not erroneous. In an action to recover for personal injuries, it is not error to instruct that the jury may use their observation and experience in business affairs in estimating the damages, where they are instructed that in applying their observation and experience they should he considered in connection with the evidence.

8. Appeal and error, § 1542* — when instruction on damages is not reversibly erroneous because not in conformity with pleading. Even though, in an action to recover for personal injuries, there is no express allegation as to mental suffering, it is not ground for reversal that the jury were instructed that they might, in estimating the damages, take into consideration mental suffering resulting from the injury and future pain and suffering, where there was evidence tending to show that the injury was permanent and that plaintiff would suffer in the future and no complaint is made that the verdict was excessive.

9. Appeal and error, § 1265* — what presumed on appeal. On appeal it will be presumed that the jurors were well informed and understood the English language.

10. Appeal and error, § 1523* — when instructions not reversibly erroneous because not defining word. On appeal in an action to recover for personal injuries, it is not ground for reversal that the term “accident” used in the instructions was not defined.