text:
    American Terra Cotta & Ceramic Company, Appellant, v. Bankers Surety Company, Appellee.
    Gen. No. 21,294.
    1. Contracts, § 171

      —when effect given to all clauses of. Effect must be given to all the clauses of a contract, if it can be done.
    2. Contracts, § 196*—when written provisions in prevail over printed provisions. Although the written provision of a contract should prevail over one inconsistent, and which is part of a printed form adopted for general use, yet only so far as it is apparent that the parties intended to modify or disregard the printed stipulations will the latter give way.
    3. Principal and surety, § 44*—what does not constitute waiver of provision in bond to commence suit within stipulated time. The fact that a surety company makes a demand on a building contractor for the payment of the annual premium on the bond for the ensuing year' after the time limited for the commencement ■ of a suit on the bond does not constitute a waiver of the requirement to commence suit within such period where the person furnishing material has no knowledge of such demand, and he is not prejudiced thereby.
    4. Principal and surety, § 44*-—when surety does not waive defenses to action on bond. A surety on a building construction bond does not waive all of its defenses by its denial, in a letter to a materialman, of any liability where the materialman is not misled or influenced to his injury thereby.
    5. Principal and surety, § 44*—when suit barred on building construction bond. Where a building construction bond provides that suits must be brought to recover any claim thereunder within a specified time after the first breach of the contract, a suit by a materialman is barred when not commenced within the tinae prescribed after judgment is obtained against the contractor.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 1, 1916.
    Rehearing denied June 13, 1916.
    Statement by the Court. Suit was commenced in the Municipal Court of Chicago by the American Terra Cotta & Ceramic Company (hereinafter known as the Terra Cotta Company) against the Bankers Surety Company, to recover for an alleged forfeiture on its surety bond given to secure payment of material furnished by the Terra Cotta Company to the Oliver Sollitt Company. There was a trial by jury, and at the close of plaintiff’s testimony the court directed a verdict finding the issues for the defendant and upon such verdict judgment for costs was entered against plaintiff (appellant here).
    The surety bond in question, which was in part written and in part printed, provided that the obligors, the Sollitt Company, and the Surety Company, respectively, were indebted to the Terra Cotta Company in the penal sum of $39,000, and that the Sollitt Company had entered into a written contract by the terms of which the Terra Cotta Company had agreed to furnish architectural terra cotta for the completion of the Birmingham Terminal Station, and that the Sollitt Company had agreed to pay $39,000 in monthly instalments payable on the 25th day of each month, the value of so much of the terra cotta as had been delivered before the 10th day of such month. The surety bond further provided that in the event the Terra Cotta Company furnished the material and the Sollitt Company paid for same as provided in said contract, then such bond was to be null and void, otherwise to remain in full force. The Terra Cotta Company made its first shipment August 23,1906, and its last shipment September 16, 1907, which shipments included all of the terra cotta provided for in said contract. The first payment for said terra cotta was due plaintiff on September 25, 1906 (and was not paid), at which time it alleges the Sollitt Company first breached its contract. All of the terra cotta in question was used in the construction of said passenger railway station. The Sollitt Company declined to make payment for such terra cotta, claiming same was defective, and plaintiff has never received payment therefor, except the sum of $3,138.22, the amount expended by plaintiff for freight charges thereon.
    It is not clearly established by the evidence whether certain promissory notes aggregating the sum of $35,000 were given by the Sollitt Company to plaintiff as accommodation paper or as payment for the terra cotta in question. All of said notes were paid with money furnished by plaintiff. The Sollitt Company ceased doing business in 1909.
    The home office of the Bankers Surety Company, defendant, is Cleveland, Ohio. The Terra Cotta Company, commencing about October 1, 1906, and frequently thereafter, covering a period of nearly five years, informed the Chicago representative of the Surety Company that plaintiff was unable to obtain any money from the Sollitt Company under said contract. During such period, there was also much correspondence between the Terra Cotta Company and the Surety Company relative to the Sollitt Company’s failure to make payment to plaintiff for the material furnished. In June, 1910, suit was brought by plaintiff against the Sollitt Company to determine the dispute as to the quality of the terra cotta, resulting in a finding of the issues in favor of plaintiff and judgment against the Sollitt Company for $49,351.37 and costs, entered December 27, 1910. Execution was issued on such judgment, which execution was returned nulla bona, and no part of such judgment has been satisfied. Prior to the commencement of such suit, viz., March 7, 1910, plaintiff’s attorney addressed a letter to the Surety Company and its agent, which is in part as follows: “ * * * Unless I hear from you at once, I shall institute suit to recover the damages which the American Terra Cotta & Ceramic Company has sustained through your breach of contract.” On July 1, 1911, more than six months after the entry of such judgment against the Sollitt Company and nearly fifteen months subsequent to the date of such letter, the instant suit was commenced.
    Childs & Childs, Thornton & Chancellor and Edward F. Dunne, Jr., for appellant.
    Gustav E. Beerly and John F. Dammann, Jr., for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

The surety bond contained the following provision: “ * * * That any suits at law * * * brought against this bond, to recover any claim hereunder, must be instituted within six months after the first breach of said contract, * *

In view of the conclusion reached by this court, it will be only necessary to consider the foregoing limitation in said bond.

Plaintiff contends that the printed provisions in said bond, including the limitation provision in question, are inapplicable to the contract entered into by plaintiff and the Sollitt Company. In this regard, plaintiff contends that the written provisions of the bond should prevail over the printed provisions. While it is true that the printed provisions, other than the limitation provision, of said bond are inapplicable to the contract between plaintiff and the Sollitt Company, the limitation provision is not inconsistent therewith. It is a familiar rule of construction that effect must be given to all clauses of a contract, if it can be done. “Although the written provision of a contract should prevail over one inconsistent with it, and which is part of a printed form adopted for general use, yet only so far as it is apparent that the parties intended to modify or disregard the printed stipulations will the latter give way. ’ ’ Ruling Case Law, vol. 6, page 848; Peck v. Scoville Mfg. Co., 43 Ill. App. 360.

On October 1, 1908, the surety company by letter made a demand upon the Sollitt Company for payment of the annual premium on the surety bond in question for the ensuing year. It is contended by plaintiff that such demand constituted a waiver of the requirement to commence suit under said bond within six months after the first breach of the contract by the Sollitt Company. There is no evidence, however, that the plaintiff had knowledge of such demand, nor that it was, in any manner, prejudiced thereby.

It is also contended by plaintiff that defendant, by its denial, in a letter, of any liability, whatever, on the bond, waived all of its defenses. The defendant was not restricted in its defense because of its general denial of liability on the bond in question, as it does not appear that plaintiff had been misled or influenced to its injury thereby. Weston v. State Mutual Life Assurance Co., 234 Ill. 492, 501.

The defendant contends that the Sollitt Company first breached its contract with plaintiff in September, 1906, and plaintiff impliedly admitted on June 15, 1909, that said contract had been breached by the Sollitt Company in a letter sent by it to defendant on that date, in which letter it informed defendant that plaintiff looked to it for performance of its obligation under said bond. In any event, the breach by the Sollitt Company was established by the judgment rendered in favor of the plaintiff and against the Sollitt Company on December 27,1910. The instant case was not commenced within six months thereafter. In the case of Western Tube Co. v. Aetna Indemnity Co., 181 Ill. App. 592, in which a similar limitation clause of the surety bond was in question, the court held that the six months’ limitation clause applied to the whole bond, and any suit on the bond for any breach thereof under that clause was barred unless brought within the six months specified. 1 ‘ The appellees herein had a legal right to limit their liability to any time in their undertaking, and when they did so, the limitation became a part of the contract of indemnity and should be enforced the same as any other contract.” Brown v. Massachusetts Bonding & Insurance Co., 176 Ill. App. 502, 505; Lesher v. United States Fidelity Co., 239 Ill. 502, 511.

There is no conflict in the evidence that the Sollitt Company first breached its contract with plaintiff more than six months prior to the commencement of suit in the instant case, and there is nothing in this record that can be construed as a waiver by defendant of the limitation provision which required plaintiff to commence suit upon said bond within six months thereafter. The court did not err in ruling that this suit could not be maintained because it was brought outside of the limitation period provided in the bond, and the trial court was therefore justified in directing a verdict on that ground in favor of defendant.

For the reasons stated, the judgment of the Municipal Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice McGoorty

license: Public Domain

text:
    Mendel Sachs, Appellant, v. Friedman Brothers & Lipsky Company, Appellee.
    Gen. No. 21,331.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stblk, Judge, presiding. . Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed June 1, 1916.
    Statement of the Case.
    Action by Mendel Sachs, plaintiff, against Friedman Brothers & Lipsky Company, a corporation, defendant, to recover balance due for goods sold and delivered. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    Fbabduient conveyances, § 276

      —when evidence sufficient to show existence of relationship of creditor and debtor. In an action to recover the balance due for goods sold and delivered, held that the evidence was sufficient to-establish the relation of debtor and creditor between the defendant and plaintiff on or before the date in which the defendant, without notice to the plaintiff, sold at public aution nearly all its stock of merchandise in contravention of the Bulk Sales Act [Cal. Ill. St. Supp. 1916, H 10,021 (D-10,021 (3) ], and that a writ of attachment .was improperly quashed.

      An attachment in aid issued in connection with said action January 14, 1915, on which date defendant disposed by public auction of most of its property. Michael Tauber and Michael Levy, trading as Michael Tauber & Company, conducted said auction sale, were summoned as garnishees and filed their answer to plaintiff’s interrogatories, admitting an existing indebtedness to defendant in excess of $1,218.84 at the time of service of said writ. Defendant filed an affidavit of merits denying that plaintiff at any time sold and delivered to defendant the merchandise set forth in plaintiff’s statement of claim and traversed plaintiff’s affidavit of atttachment, which affidavit alleged that defendant, within two years last past, fraudulently (a) conveyed or assigned its effect; (b) concealed or disposed of its property; (c) that it was about to fraudulently conceal or dispose of its property, so as to hinder and delay its creditors. Trial by jury having been waived, the cause was submitted to the court who found the attachment issues and the issues on the merits in favor of defendant, dismissing the attachment writ and entering judgment against plaintiff for costs.
    Jacob Levy, for appellant; Josiah Burnham, of counsel.
    Benjamin E. Cohen, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    National Bank of the Republic of Chicago, Defendant in Error, v. Arthur K. Hitomi et al., Plaintiffs in Error.
    Gen. No. 22,103.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 6, 1916.
    Statement of the Case.
    Action by the National Bank of the Republic of Chicago, plaintiff, against Arthur K. Hitomi and others, defendants. To reverse a judgment for plaintiff, defendants prosecute a writ of error.
    An order was entered in this cause striking the bill of exceptions from the record. The plaintiff moved the court' to affirm the judgment on the ground that the assignménts of error and the brief and argument of the defendant touched only points appearing by the bill of exceptions, which the court found to be true. No errors were assigned or argued arising upon the statutory record.
    Ernest Saunders, for plaintiffs in error.
    Newman, Poppenhusen & Stein, for defendant in. error.

      Abstract of the Decision.
    Appeal and erbob, § 1751

      —when judgment affirmed after striking. hill of exception from files. Where on review assignments of error touch points appearing only by a bill of exceptions, which has been stricken from the record, the judgment will be affirmed.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

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


text:
    Harry J. Grimm, Executor, Defendant in Error, v. Clark Delivery Car Company, Plaintiff in Error.
    Gen. No. 22,134.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding, of facts.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Harry J. Grimm, executor of the estate of Henry E. Grimm, deceased, plaintiff, against the Clark Delivery Car Company, defendant, to recover damages for the death of his testator. To reverse a judgment for .plaintiff, defendant prosecutes a writ of error.
    Henry E. Grimm while crossing Clark street at its intersection with Adams street in Chicago was struck by an automobile truck and received injuries resulting in his death. His executor brought suit against the defendant Clark Delivery Car Company, which owned the truck. Deceased was thirty-five years of age, physically active, with good eyesight and hearing.

      Of the five eyewitnesses testifying, four testified substantially that the accident happened in this way: Under the downtown traffic regulations in Chicago the police officer directing the movement of traffic at street intersections blows one whistle as a signal' for the traffic to move from north to south and vice versa. At this time the east and west traffic stands until the officer gives two whistles, when it moves, while the north and south traffic in turn stands still. Clark street runs north and south, Adams east and west. Deceased was at the southwest corner of the two streets, starting to go east across Clark on a line about four feet north of the south crosswalk across Clark. As deceased started easterly to cross Clark, the traffic, pursuant to the officer’s single whistle, was going north and south, that is, deceased was going against the course of the traffic. The last vehicle'in the procession going- south, running about equidistant between the westerly street car track on Clark and the west curb, was the auto truck of the defendant. It was going about three to five miles an hour, no faster than vehicles ahead of it. There was some little space between it and the traffic ahead. As one of the witnesses testified, deceased seemed to walk right into the truck He was struck by its righthand front corner and knocked down, falling under the wheels. This version of the accident was supported not only by the occurrence witness produced by the defendant, but also by three of the four occurrence witnesses testifying on behalf of the plaintiff. According to the single witness who was in disagreement with the others, when deceased started to cross the street the two whistle signal for the east and west traffic to move had been given; but in this he is contradicted by the police officer, the driver of the truck, and the pedestrians who saw the accident while they were waiting at the street corner for the two whistle signal which would clear th,e way for them to cross Clark street.

      Abstract of the Decision.
    1. Evidence, § 475

      —what does not constitute preponderance of. A preponderance of the evidence is not established by the testimony of one witness, directly contradicted by two at least equally credible witnesses,' one of whom was called by the plaintiff itself.
    2. Roads and bridges, § 232*—-when evidence insufficient to establish negligence of driver of wagon in injuring pedestrian at crossing under control of traffic policeman. In an action for damages for the death of the plaintiff’s testator, killed by a vehicle while crossing a street at an intersection, where three out of four of the plaintiff’s witnesses testified that the deceased attempted to cross the street while traffic was passing along it in accordance with the direction of a traffic policeman; and the other witness testified that the signal for the traffic to cease had been given before the deceased started across, which fact was denied by the policeman, the driver of the vehicle and other witnesses, preponderance of the evidence held to show lack of negligence of the defendant and lack of due care by the deceased.
    3. Roads and bridges, § 235*—when pedestrian attempting to cross street before signal given by traffic policeman guilty of contributory negligence. A pedestrian attempting to cross a street, at an intersection where traffic is under direction of a traffic policeman, while traffic is passing along such street and before the signal for it to cease has been given, is not exercising due care and caution for his safety.
    4. Roads and bridges, § 231*—when driver of vehicle at street intersection where traffic under control of traffic policeman not negligent in injuring pedestrian.- The driver of a vehicle proceeding along a street, at an intersection where traffic is under the direction of a traffic policeman, at a lawful rate of speed and in accordance with the direction of the policeman stationed there, held not guilty of negligence in running into a pedestrian attempting to cross such street.
    Bulkley, More & Tallmadge, for plaintiff in error.
    Ft,twer & Cohen, Leo Koretz and John A. Irrmann, for defendant in error; Leo Koretz and John A. Irrmann," of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John M. McClun, Plaintiff in Error, v. Theodore Furnya, Defendant in Error.
    Gen. No. 22,137.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by John M. McCIun, plaintiff, against Theodore Furnya, defendant, on a promissory note. To reverse a judgment for defendant, plaintiff prosecutes a writ of error.
    Theodore Furnya, defendant, intending to purchase real estate from Catherine Joyce, paid to her agent, John M. McCIun, the plaintiff, $100 earnest money, $80 cash and $20 by his note.
    The contract was entered into on February 4, 1915. By its terms it was provided that an abstract or a guaranty policy should be furnished to the defendant “within a reasonable time,” also that a loan of $1,000 drawing interest at six per cent, should be furnished to defendant within sixty days from date of the contract, and if the loan was not furnished the contract was to be null and void and the earnest money returned to defendant. The evidence showed that although defendant made repeated efforts to obtain an abstract or guaranty policy, and was given many promises that it would be delivered to him, none was furnished; that when sixty days after the date of the contract had expired,' and several days thereafter,' and neither an abstract, guaranty policy nor the loan contemplated by the contract had been furnished, defendant served notice upon Catherine Joyce and the plaintiff of his election to terminate the contract. The evidence also shows that no guaranty policy was ordered until about ninety days after the signing of the contract.
    Abstract of the Decision.
    Vendor and purchaser, § 327

      —when purchaser entitled to return of earnest money upon failure of vendor to fulfil condition. Where earnest money was paid and a note given by a prospective purchaser of real estate to the owner’s agent to bind a contract of purchase, whereby the owner agreed to furnish an abstract of title or a guaranty policy within a certain time, and if the loan was not furnished the contract was to be null and void and the earnest money returned to the prospective purchaser, and such owner failed to perform, held that the prospective purchaser was entitled to the return of the money and that the agent could not recover on the note.
    Rathje & Wesemann, for plaintiff in error; Guy Van Schaick, of counsel.
    Bluim & Teed, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Bernard Carpenter, Plaintiff in Error, v. City of Chicago and Board of Commissioners of Police Pension Fund of Chicago, Defendants in Error.
    Gen. No. 22,170.
    1. Pleading, § 200

      —what is effect of demurrer. A demurrer admits the truth of material allegations of fact in the pleading demurred to.
    2. Municipal corporations, § 143*—when reinstated patrolman not entitled to pension. A patrolman who has been discharged and reinstated so that his total time of service is less than twenty years is not entitled to receive a pension from the police pension fund provided for by chapter 24, Hurd’s Illinois Statutes (J. & A. TTir 1862-1887).
    Error to the Circuit Court tif Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 19, 1916.
    A. S. Gash, for plaintiff in error.
    Samuel A. Ettelson, for defendants in error; James W. Breen, of counsel

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Petitioner seeks by mandamus to be placed on the pension roll of the police pension fund provided for in chapter 24, Hurd’s Illinois Statutes, section 391 (Cal. Ill. St. Supp. 1916, ft 1862). Defeated in the trial court, he asks that the order dismissing his petition be reversed.

Petitioner alleges that he was appointed patrolman October 2, 1891, and served until March 14, 1898, when he was illegally discharged; that in October, 1908, he brought a mandamus suit alleging his illegal discharge, and a writ was issued commanding the City of Chicago to place his name on the roster and pay roll of patrolmen, and that this was done on October 20, 1908, and he continued to perform the duties of patrolman until June 30, 1915, when he resigned; that from March 14, 1898, to October 20,1908, he was ready to perform his duties as patrolman; that his discharge was illegal, and that the Circuit Court in said mandamus suit adjudged that it was illegal, and that during said period he was in theory and truth a patrolman; that on June 30, 1915, he presented to defendants the civil service register and the roster of the police department and a certified copy of the appropriation bill, and asked that he be allowed a pension, but the board denied this application; that petitioner has served as patrolman on said police force for twenty years, but defendants refused on the sole ground that he was not in the actual service for twenty years.

The city filed its amended answer admitting the appointment of petitioner as patrolman on October 2, 1891, and that he served until March 14, 1898. It denies that he was illegally discharged on this last date, but asserts it as a fact that he was legally separated from the police department on that date in accordance with the rules and regulations of the department and the ordinances of the City of Chicago governing patrolmen. Defendant’s answer says that the petition for mandamus was filed on April 6, 1908, and the writ issued on August 14, 1908. The answer denies that the Circuit Court of Cook county entered any order in the mandamus suit holding that Carpenter was illegally discharged; that the order reinstating him made no reference at all to his discharge. Further answering defendant says that petitioner is not entitled to the writ of mandamus for the reason that on August 14, 1908, he executed for a valid consideration a release under seal, releasing the city from any and all liability and from any and all claims of any kind or nature which accrued to him by reason of his separation from the police department. The answer further denies that the petitioner served twenty years in the police department of the City of Chicago, and denies that his combined years of service, either in the police department or the fire department, or in both departments, amounted to twenty years, but on the contrary states the fact to be that he served only thirteen years and one month in the police department, and because of his failure to complete a service of twenty years he is not entitled to a pension. . The defendant City of .Chicago further answering denies that it has any power or control over the police pension fund of the City of Chicago, but asserts the fact to be that the Board of Trustees of the Police Pension Fund of the City of Chicago has exclusive control over said fund and is the only tribunal authorized by law to hear and determine applications for pensions. It denies that it has any right to order or direct that said petitioner be granted a pension.

The board of trustees of the pension fund by its amended answer says that petitioner was legally separated from the police department in accordance with the Revised Code of Chicago, which provides that the superintendent of police shall have power to remove from the police force any police patrolman. It denies that the Circuit Court of Cook county entered a finding in the mandamus suit that Carpenter was illegally discharged, and the answer sets forth a copy of the order, which directs that the name of Bernard Carpenter be placed “upon the roster of police patrolmen and upon the police pay roll of the City of Chicago, to the end that the said Bernard Carpenter may at once enter upon the performance of his duties as police patrolman, with the same- right to continue in the performance thereof and receive salary therefor as he had to continue in the performance thereof and receive salary therefor prior to his discharge on the 14th day of March, A. D. 1898.” This defendant further states that it was not a party to the proceedings in the Circuit Court and was not represented in any manner by counsel in said suit, and therefore any judgment, decrees or orders entered therein are not binding upon it. This defendant also denies that petitioner served twenty years in the police department of the City of Chicago, but on the contrary states the fact to be that he served only thirteen years and one month, and that as a result of his failure to complete a service of twenty years he is not entitled to receive a pension. This defendant also sets up the release given by Carpenter to the city under date of August 14, 1908. It asserts the fact that said release was executed upon the consideration that the City of Chicago would waive its right to appeal and to sue out a writ of error from the order of the Circuit Court of Cook county. • This defendant further answering says that the Police Pension Board of the City of Chicago heard petitioner’s application for a pension on July 13, 1915, and that he neglected and failed to produce evidence before said board proving that he had been a member of the police department for twenty years, and failed to produce any evidence or any order of the Circuit Court of Cook county, or any other court, finding that he had been illegally discharged from the police force. This defendant also states that it has exclusive control of the funds of the Police Pension Fund of the City of Chicago, and that it has exclusive right to try and determine all applications for a pension, that it heard the application of petitioner and that it was a question of fact whether or not he had served the required time in the police department to entitle him to a pension, and the board found from the evidence introduced before it that he had not served the required time. This defendant further asserts that its decisions upon the rights of parties applying for a pension where questions of fact are involved, are binding and not reviewable by the courts. This defendant further says that during the period petitioner was not on the force, that is, from March 14, 1898, until reinstated in 1908, he contributed nothing to the police pension fund.

The release referred to is included in the amended answers, and thereby Carpenter released and discharged the city “from any and all claims of every kind and nature which have accrued to me at any time, and more particularly any and all claims which in any manner grew out of my discharge from the position of patrolman under the, general order of the superintendent of police, of said city, heretofore made.” The release recited that it was given in consideration of the city consenting to waive all right to appeal from and right to prosecute a writ of error based upon the judgment entered in the mandamus suit in the Circuit Court of Cook county.

To these amended answers petitioner filed a general demurrer which was overruled by the court, and petitioner having elected to stand by his demurrer, it was ordered that the petition be dismissed. The demurrer admitted the truth of the material allegations of fact appearing in' the answers which were well pleaded. It was alleged in the answers as a fact that petitioner had not served twenty years in the police department but had served only thirteen years and one month, and this must be taken to be true. Under the statute providing for the formation and disbursement of the police pension fund, only those are entitled to a pension who “shall have served for a period of twenty years or more in the police department.” We hold that this means actual service, and that petitioner is not entitled to credit for the period of time of over ten years when he was not in service. One of the reasons supporting this conclusion is found in the statute, which provides that the fund shall in part be made up from the salary of each policeman during his period of service. This .clearly indicates that the period of service for twenty years is cotemporary with the contribution or deduction from the officer’s salary during this period. To hold otherwise would permit of ah officer participating in a pension fund to which he might not have contributed anything. In the instant case it would permit the petitioner to share in a pension fund towards which he had not made the statutory contribution from his salary for a period of nearly half of the time upon which he bases his claim. This is contrary to any reasonable construction of the statute.

Other points are made and discussed, but what we have just said is sufficient to justify the ruling of the trial court, and its order is affirmed.

Affirmed.


text:
    Henry M. Lauderdale and Harry H. Lauderdale, trading as Lauderdale & Son, Defendants in Error, v. William Downs, Plaintiff in Error.
    Gen. No. 22,171.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Henry M. Lauderdale and Harry H. Lauderdale, trading as Lauderdale & Son, plaintiffs, against William Downs, defendant, for commissions for the sale of real estate. To reverse a judgment for plaintiffs, defendant prosecutes a writ of error.
    In June, 1915, defendant engaged the plaintiffs, who are licensed real estate brokers, to sell a piece of real estate belonging to him; the defendant agreed to sell the property at a price of $5,250, and to pay the plaintiffs the Chicago Beal Estate Board rate commissions, and the property was listed with plaintiffs upon these terms. The plaintiffs submitted the property to Paul B. Scholz, and at the same time informed defendant that Scholz was the 'buyer secured by them. Scholz made the brokers and also the defendant an offer on the property, and after defendant had raised his price several times the defendant and the buyer came to terms, and in August, 1915, the property was conveyed to Scholz.
    Abstract of the Decision.
    Brokers, § 48

      —when entitled to commissions upon furnishing purchaser. A broker, who, in pursuancé of an agreement with the owner of real estate to sell the property for him, furnishes a purchaser ready, willing and able to buy it and who through direct negotiations with the owner does buy it at a price higher than that named to the broker, is entitled to the commissions agreed upon.
    Henry L. Wilson, for plaintiff in error; F. P. Bead, of counsel.
    Oliver B. Opsahl, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Charles L. Hansen, Appellee, v. Best Brewing Company of Chicago, Appellant.
    Gen. No. 22,209.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed June 19, 1916.
    Rehearing denied July 13, 1916.
    Statement of the Case.
    Bill by Charles L. Hansen, complainant, against Best Brewing Company of Chicago, a corporation, defendant, to restrain the defendant from enforcing the terms of a lease. From a decree granting the relief prayed, the defendant appeals.
    By a written lease dated August 16, 1909, defendant leased to complainant certain premises, the rental payable in monthly instalments of $265 each, with a provision that if complainant should comply with and faithfully perform each and- every condition therein contained he would be credited with or paid by the lessor out of the money so received the sum of $100 per month. By the terms of the lease complainant agreed that during the entire term he would purchase all beer that he might use or sell on the premises from the defendant. He was given permission to sell bottled or imported beer as stated in the following clause:
    “Party of the second part (lessee) shall have the right, however, to purchase and sell bottled or imported beer from other persons, firms or corporations, and use or sell the same in said premises, but this right shall be optional with the party of the first part (lessor), and shall be terminated upon thirty days’ notice in writing given by the party of the first part (lessor) to party of the second part (lessee). Said party of the second part (lessee) shall immediately upon receipt of such notice cease to purchase such bottled or imported beer and sell such bottled or imported beer as he then shall have in stock within said thirty days. ’ ’
    In June, 1912, defendant notified complainant to stop using and selling bottled beer in his saloon, as provided in said clause, and that his refusal would be considered a violation of the terms and conditions of the lease. Complainant refused to comply with this notice. Thereupon defendant refused to give him the monthly credit of' $100, and as the lessee refused to pay the sum of $265, the monthly rental provided for in the lease, judgments for the full amount by confession were entered against him. Complainant thereupon filed this bill of complaint, alleging that the clauses in the lease giving defendant the right to terminate the sale of bottled beer upon the premises, and providing for payment of rental at the rate of $265 per month,' were mere matters of form; that he was told that no attempt would ever be made to enforce either of these conditions, and that he could sell at all times all the bottled beer he wished, and pay only $165 per month. The bill further alleged that defendant made to complainant a loan of $5,000, secured by his notes and trust deed; that he has paid said note and interest in full but that the defendant company refuses to turn over to him the possession of said principal note and the coupon notes or the trust deed.
    The defendant answering avers that complainant was fully aware of the contents and the terms of the lease, denies that any misrepresentations were made regarding its recitals, avers that the right of complainant to sell bottled or imported beer from other persons on the premises was optional with defendant and could be terminated upon notice, that such notice was given and that complainant has refused to comply with the same; that because of such failure to comply with his agreement complainant is not entitled to a credit of $100 on his monthly rental but is obligated to pay the full sum of $265 for each month in accordance with the terms of the lease. Defendant says as to the $5,000 note and trust deed that it had sold the papers, hut that it would ascertain where they were and endeavor to arrange for complainant to secure a proper release.
    Abstract of the Decision.
    1. Contracts, § 293

      —when covenants of enforced. Where there is no fraud or mistake in the preparation of an instrument, and it appears that the parties signing understood its language and purpose, its covenants will be enforced.

      Reference was had to the master, who took testimony and returned the same to the court with -his report. Objections and exceptions were filed and overruled, and the court entered a decree in accordance with the recommendations of the master. ‘
    By its decree the court finds substantially that in August, 1909, complainant entered into an agreement with one Charles P. Hill for the purchase of a saloon; that Hill was the owner of the building in which the saloon business was conducted, and that he made an agreement with complainant to lease to him said premises for a period of eighty-six months, to commence September, 1909, at a monthly rental of $165; that in pursuance of an agreement made between the Brewing Company and Hill and complainant, Hill executed a lease to defendant of the premises for a monthly rental of $165, and the defendant in turn leased the premises for the same period of time to complainant at the rental of $265. The decree finds the fact with reference to the provisions of the lease, and the service of notice upon complainant with reference to the bottled beer, substantially as hereinabove stated.
    Winston & Lowy, for appellant.
    Johan Waage, 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. Presiding Justice McSurely

delivered the opinion of the court.

2. Injunction, § 206 —who has burden of showing that contract does not conform to understanding of parties. In a suit to restrain a. lessor from confessing judgments for rent in accordance with the lease, the one claiming that the contract does not contain the true understanding of the parties thereto has the burden of proving the truth of such claim.

3. Injunction, § 65*—when relief from contract causing hardship not granted. The fact that the enforcement of an obligation will work a hardship cannot, in the absence of fraud or mistake, furnish ground for equitable relief therefrom by injunction.

4. Injunction, § 206*—when evidence insufficient to authorize decree restraining lessor from confessing judgments according to lease. In a suit to restrain a lessor from confessing judgments for rent in accordance with the terms of a lease, evidence of the complainant that the terms under which, in accordance with the lease, such judgments could be confessed were considered, mere matters of form at the time of its execution, and not intended to be enforced, and such lease as written did not represent the true understanding of the parties, held not sufficient to justify the relief prayed.

5. Cancellation of instruments, § 37*—when decree requiring proper. In a suit in chancery, a prayer that defendant be directed to deliver up to complainant a note, coupons and trust deed granted, the settlement of the obligation having been acknowledged by the defendant.


text:
    J. L. Obermeyer, Plaintiff in Error, v. Wisconsin Dairy Farms Company, Defendant in Error.
    Gen. No. 22,252.
    1. Accord and satisfaction, § 1*—what constitutes. To constitute an accord and satisfaction there must be an honest dispute between the parties, a tender with the explicit understanding of both parties that it was in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted in full payment.

      2. Accord and satisfaction, § 4

      —when qualified acceptance of qualified tender does not constitute. Where a purchaser mailed the seller a check in payment of an account, a statement of which was inclosed and at the bottom of which was written: “We hand you check in payment of the above account. Trust that the settlement is in accordance with your figures and to your entire satisfaction,” held not such a tender as would constitute an accord and satisfaction, on the seller’s cashing the check after indorsing it: “This check accepted as part payment of this account.”
    3. Municipal Court of Chicago, § 29*—when judicial notice not taken of rules of Municipal Court. The Appellate Court will not take judicial notice of the rules of the Municipal Court.
    4. Municipal Cotjbt of Chicago, § 31*—when judgment not entered on reversal of case on writ of error to. The Appellate Court on reversal of a case on writ of error to the Municipal Court will not enter judgment in accordance with the rules of that court if they do not appear in the record.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed June 19, 1916.
    Joseph M. Connery, for plaintiff in error.
    Jonas O. Hoover, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, a butter manufacturer of Jackson, Minnesota, brought suit for a balance claimed to be due on a shipment of seventy-two tubs of butter which he had made to defendant, a corporation, acting as commission merchants in Chicago. Defendant claimed accord and satisfaction, and the trial court being of the opinion that this defense was proved entered judgment for the defendant. In so holding we are of the opinion that the trial court was in error.

The transaction between the parties, which is claimed to amount to accord and satisfaction, is this: In response to a request defendant forwarded to plaintiff what purported to be a ‘ ‘ statement of settlement, ’ ’ which gave in columns the shipments, sales, advances for freight carriage, and expenses, showing a balance due plaintiff of $369.19. At the bottom of the statement was appended this: “We hand you check in payment of the above account. Trust that the settlement is in accordance with your figures and to your entire satisfaction.” The check inclosed was received by plaintiff and paid through the bank upon which it was drawn. Upon the check plaintiff made this indorsement: “This check accepted as part payment of this account.” At the same time he wrote to defendant disputing the accuracy of the statement and demanding the full amount which he claimed was due to him..

It has been held many times that to constitute an accord and satisfaction there must be an honest dispute between the parties, a tender with the explicit understanding of both parties that it was in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted in full payment. Farmers & Mechanics Life Ass’n v. Caine, 224 Ill. 606; Snow v. Griesheimer, 220 Ill. 109; Western Union R. Co. v. Smith, 75 Ill. 496. In this latter case the court said of circumstances like those in the present case that the acceptance of the money offered should not operate as an estoppel upon the plaintiff and thus preclude him from suing for and recovering any balance that might be shown to be due him.

There was no suggestion in the instant case that the acceptance of the check would be considered a settlement in full.’ The language, “trust that the settlement is in accordance with your figures,” would indicate that plaintiff was at liberty to modify or disagree with the statement if from his own records he was of the opinion that it was not correct. Therewas nothing-said which could be construed as binding plaintiff to the correctness of this statement if he should accept the check. •

There being no accord and satisfaction, plaintiff was entitled to produce evidence in support of his claim.

Plaintiff’s counsel suggests that under the rules of the Municipal Court he is entitled to judgment hero for the amount of his claim; but no rules of the Municipal Court appear in the record, and we cannot take judicial notice of them.

Plaintiff is entitled to another trial upon the merits. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Antonina Michalsky and Frank Michalsky, Defendants in Error, v. Salvatore Pisano and John Torrio, Plaintiffs in Error.
    Gen. No. 22,140.
    (Not to be reported in full.) "
    Error to the Municipal Court of Chicago; the Hon, William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Rehearing denied July 1, 1916.
    Statement of the Case.
    Action by Antonina Michalsky and Frank Michalsky, plaintiffs, against Salvatore Pisano and John Torrio, defendants, to recover earnest money paid on a contract for the purchase of real estate. To reverse a judgment for plaintiffs, defendants prosecuté a writ of error.
    John Torrio contracted with Antonina Michalsky to sell to her the real estate described as Lots 4 and 5 except the south two feet of Lot 5, being forty-six by one hundred feet in Poyntz subdivision, etc., at the price of $6,200. Michalsky paid to Pisano $200 earnest money, agreeing to pay the remainder at the time specified in the contract. The contract and earnest money were to be held by defendant Pisano for the mutual benefit of the parties concerned, and he was to apply the earnest money, first, to the payment of expenses, and, second, to the vendor’s broker as a commission on the selling price for his services in procuring the contract, rendering the overplus to the vendor. The defense stated by Pisano was that “this defendant acted as a broker in the matter of the sale referred to in the contract in question; that plaintiffs themselves, without legal ground, refused to carry out said contract, and the plaintiffs, under the terms of said contract, have no claim upon the money deposited with this defendant and have stated no cause of action against this defendant in the statement of claim filed by them.” The condition stated in the contract was that Torrio should furnish to Antonina Michalsky a good and sufficient warranty deed conveying the premises to her. This he failed to do and Pisano thereby became bound under the contract to return the earnest money.
    Torrio did not assign error, but was summoned and judgment of severance entered, and Pisano alone assigns error on the record.
    On the trial the jury found the issues for defendant Torrio, also found the issues for the plaintiffs and against defendant Pisano, and assessed plaintiffs’ damages against Pisano at the sum of $200.
    George E. Dawson, for plaintiffs in error; Mitchell Dawson, of counsel.
    A. F. W. Siebel, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Vendor and purchaser, § 305 —when purchaser entitled to return of earnest money. One who, having contracted for the purchase of real estate, pays to the vendor’s broker earnest money, which is to be applied to the payment of expenses and brokerage, and balance paid to the vendor, is entitled to the return of such earnest money from such broker on failure of the vendor to tender a deed in accordance with his contract.

2. Appeal and error, § 493*—when erroneous judgment against one joint defendant only not disturbed on appeal. Though the rule is that a plaintiff suing two or more on a contract must recover against all or none, a judgment entered against one defendant only in accordance with verdict will not be disturbed on appeal in the absence of an objection thereto in the trial court.


text:
    Hugo Ash, Defendant in Error, v. Isidor Oppman, Plaintiif in Error.
    Gen. No. 22,177.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with direction to enter a judgment of nil capiat for defendant Oppman.
    Opinion filed June 19, 1916.
    Rehearing denied July 1, 1916.
    Statement of the Case.
    Action by Hugo Ash, plaintiff, against Isidor Opp-man, defendant, to recover commissions for the sale of real estate for defendant to one Silver. From a judgment for plaintiff, defendant brings writ of error.
    On the back of the contract of sale Ash made the following indorsement: “My commission is dependent upon the actual consummation of the within sale and the payment of the purchase price.” This contract was prepared and not signed by Oppman and Silver, but the indorsement as to commissions was signed by Ash. A second contract was prepared by defendant’s attorney, was signed by Oppman and Silver, and the following indorsement made thereon was signed by Ash: “I agree with Isidor Oppman that I shall be entitled to commission only in the event that this contract is fully consummated and the purchase money actually paid. ’ ’
    Abstract of the Decision.
    1. Vendor and purchaser—When evidence sufficient to show that purchaser in default under contract. In an action by a broker for commissions under a contract providing that he should be entitled thereto only in the event that the contract was fully consummated and the purchase money actually paid, evidence held, sufficient to sustain a finding that the purchaser had made no effort to perform on the day set for the performance and that he was in default.
    2. Brokers, § 36

      —what constitutes performance of contract entitling hroleer to commission. The general rule is that if a broker who has been employed to effect a sale of property finds a purchaser of sufficient responsibility "willing to take the property on the terms stated, he has performed his contract, and is entitled to his commission, it being immaterial in such a case that either party has refused to carry out the contract.
    3. Brokers, § 56*—when not entitled to commissions under express agreement. Where an agreement is entered into between a vendor and a broker whereby the latter is to be entitled to his commissions only in the event that the contract is fully consummated and the purchase price fully paid, he is not entitled to his commissions where the contract of purchase is not performed but the purchaser defaults and the vendor accepts the forfeiture of the contract.
    The evidence was conflicting.
    Budolph D. Huszagh, for plaintiff in error.
    Edward Maher, for defendant in error.

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

      See Illinois Notes Digest, Volsi XI to XV, and Cumulative Quarterly, same tonic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

4. Vendor and purchases, § 244 —what are remedies of vendor upon default in performance 6y vendee. Where a purchaser of land defaults in performance of the contract the vendor may bring an action for specific performance of the contract, or a suit for damages, or he may accept the act as a forfeiture of the contract.


text:
    Peter Dewald, Defendant in Error, v. Ferdinand Becker, Plaintiff in Error.
    Gen. No. 22,211.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph La But, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Peter Dewald, plaintiff, against Ferdinand Becker, defendant, to recover commissions for goods sold for defendant.- From a judgment for plaintiff, defendant brings error.
    The contention of the defendant was that plaintiff had not turned over to him all of his collections, defendant claiming that plaintiff was short in his returns by $225. The parties agreed that a check for this amount should be placed in the hands of one John H. Kingsbury until December 21, 1911, by which time if it was ascertained that plaintiff had paid over all moneys collected by him from January 1, 1910, to October 21, 1911, then the amount of this check should be paid to him. The jury found that plaintiff had turned over to defendant all his collections except $39. Defendant wrote a letter to plaintiff under date of December 8, 1911, in which he requested that plaintiff permit defendant to retain the money represented by the check held by Mr. Kingsbury for the reason “that we are very short of money at the present time, but would be able to give it to you at the time specified. Hoping you will not be inconvenienced by not having the money, we beg to remain,” etc.
    Abstract of the Decision.
    Master and servant, § 84

      —when evidence sufficient to show that salesman had accounted for part of collections. In, an action by a salesman for commissions on goods sold by plaintiff for defendant, evidence held sufficient to sustain a finding that plaintiff had accounted for all his collections except a certain sum.
    Philip K. Barnes, for plaintiff in error.
    Lee & Lee, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Norman Johnson, Defendant in Error, v. Susan Dellas and Anton J. Cermak, Bailiff, Plaintiffs in Error.
    Gen. No. 22,114.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with directions.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Norman Johnson, plaintiff, against Susan Dellas and Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendants, to try the right to property taken under execution. From a judgment for plaintiff, defendants bring error.

      Abstract of the Decision.
    1. Execution, § 84

      —when statute requiring service of copy of writ of execution upon debtor complied with. The purpose of Hurd’s Rev. St. ch. 52, sec. 14 (J. & A. If 5584), providing that a copy of a writ of. execution shall be served upon the debtor in the same manner as summonses are served in chancery, is to give the debtor an opportunity to make a schedule and claim exemption within ten days, and the purpose of the statute is met when the debtor in fact sends his schedule to the bailiff in due time, although service is made upon the wife of the debtor.
    2. Exemptions, § 28*—when unsworn schedule insufficient. An unsworn schedule of property claimed to be exempt is insufficient and not in compliance with Hurd’s Rev. St. ch. 52, sec. 14 (J. & A. If 5584).
    Peden, Kahn & Murphy, for plaintiffs in error; Harry Kahn, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Victor Electric Company, a corporation, Defendant in Error, v. Charles Miller, Plaintiff in Error.
    Gen. No. 22,154.
    1. Appeal and error, § 1725*—when decision in prior case binding on appeal. The decision of the Appellate Court on a former review is the law of the case binding upon the parties, the trial court and the Appellate Court.
    2. Contracts, § 371*—when presumed that written contract contains entire agreement of parties. It will be presumed that a written contract embodies the agreement of the parties to it, and that all contemporaneous oral agreements are merged in it.

      3. Municipal Court op Chicago, § 19

      —when judgment for plaintiff on pleadings not objectionable as being entered without evidence. In an action on a written contract where plaintiff relied upon his sworn statement of claim and the pleading of defendant which set up matters dehors the record and which tended to contradict the written contract, and defendant offered evidence which had been held improper on a prior appeal as tending to vary an unambiguous contract, held that a judgment for plaintiff was proper, and was not objectionable as being entered without evidence.
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Eugene Huss and Victor E. Behm, for plaintiff in error.
    Fred B. Hovey, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The cause of action set out in the statement of claim rests in a contract in writing. In the first trial of this cause defendant prevailed. His defense consisted of oral statements dehors the contract. This court reversed that judgment because of the erroneous admission of such evidence. On a second trial, the record of which is before us for review, plaintiff had judgment against defendant on the finding of the court for eighty dollars. ~ 0

The decision of this court on the former review became the law of the case binding upon the parties and the trial court and is the law of the case in this court. Mr. Justice Pam, in the decision of the court, said: “We are of the opinion that the contract is clear and explicit and not ambiguous, and that the court erred in admitting the testimony of defendant with reference to any conversation had with a representative of plaintiff, as a promise to see that electricity was furnished.” The opinion of this court being binding upon the second trial, it is immaterial how the trial court was informed of the opinion and conclusions of this court. It became the duty of the trial judge to inform himself of the opinion of this court and to proceed in the second trial in conformity therewith. This the trial judge did. While plaintiff offered the opinion as evidence, it was not necessary so to.do. The opinion was not evidence of any fact ;■ it was more than that; it was the law of the case by which the court must be guided and controlled in the conduct of the second trial. For the contract in suit and a full statement of the facts and the pleadings, we refer to the opinion in 194 Ill. App. 347, filed on the former review.

Upon the trial now being reviewed, defendant complains that the judgment was rendered without evidence. The record does not bear out such claim. The statement of claim setting out the written contract was verified. Defendant in his affidavit of meritorius defense set up matters dehors the contract which tended to contradict the written contract by oral conversations. This defense this court held to be unavailing. Plaintiff relied upon its sworn statement of claim and the pleading of defendant, which did not deny the contract, and rested. Thereupon defendant’s counsel offered as a defense the evidence which this court held to be incompetent and not available as a defense against the admitted written contract. This was all defendant offered and it was rightfully excluded. There being no defense after the court’s ruling excluding the proffered evidence, finding and judgment followed for the amount of plaintiff’s contract claim. In this condition of the record the trial judge had no alternative than to do as he did. It is a presumption of law that a written contract embodies the agreement of the parties to it and that all contemporaneous oral agreements are merged in it. Telluride Power Transmission Co. v. Crane Co. 103 Ill. App. 647; Ford Motor Co. v. Osburn, 140 Ill. App. 633.

The judgment of the Municipal Court does justice between the parties under the law and is affirmed.

Affirmed.


text:
    Trinity Methodist Episcopal Church of Chicago, Defendant in Error, v. Marie Methodist Episcopal Church of Chicago and James M. Wheaton, Plaintiffs in Error.
    Gen. No. 22,159.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Trinity Methodist Episcopal Church of Chicago, plaintiff, against Marie Methodist Episcopal Church of Chicago, a corporation, and James M. Wheaton, defendants, to recover on a stay of execution bond.
    There was a former review of this case, the opinion of which is reported in 192 Ill. App. 222, where all the essential facts appear.
    Brundage, Landon & Holt, for plaintiffs in error.
    Eddy, Wetten & Pegler, for defendant in error; Clarence 1ST. Boord and Jasper F. Bommel, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 870 —what abstract should not contain. An abstract should not contain argumentative matter.

2. Appeal and error, § 1298*—when presumed that jury regularly impaneled and that their verdict regular. It will be presumed on appeal that a jury was regularly impaneled in an action upon a stay bond and that their verdict was regular when objection is made for the first time on appeal.

3. Appeal and error, § 1886*—when right to have damages assessed by jury in action on bond. The defendant in an action upon a bond given upon the prosecution of a writ of error in a forcible entry proceeding is entitled to have the damages assessed by a jury, as such damages are unliquidated.

4. Appeal and error—what is procedure in action on stay bond after striking affidavit of defense. Where the affidavit of defense to an action upon a stay bond given upon the prosecution of a writ of error in a forcible entry proceeding is stricken from the files, all that remains to be done is to assess the damages of plaintiff, and all that defendants may do on such assessment is to cross-examine witnesses in diminution of damages.

5. Appeal and error, § 1883*—what is effect of striking affidavit of defense in action on stay bond. Every material averment of a statement of claim in an action on a stay bond stands admitted where the affidavit of defense is stricken from the files.

6. Appeal and error, § 1859*—when defendants in action on stay bond estopped by recitals thereof. The recital of the judgment in a stay bond offered in evidence is sufficient proof of its existence, and the defendants are estopped from denying such recital or other recitals.


text:
    William A. Smith, Defendant in Error, v. Lord & Bushnell Company, Plaintiff in Error.
    Gen. No. 22,185.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodhow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by William A. Smith, plaintiff, against the Lord & Bushnell Company, a corporation, defendant, to 'recover damages for breach of contract in failing to deliver lumber that had been paid for. From a judgment for plaintiff, defendant brings error.
    Plaintiff bought of defendant certain lumber and paid for the same. The controversy related to 26,000 feet of the lumber, which defendant, it was claimed, failed to deliver to plaintiff. Between the time of the purchase of the lumber and the repurchase by plaintiff of the shortage in delivery, the price of lumber advanced. The contract price was $7 per 1,000 feet and the market price which plaintiff paid for the 26,000 feet not delivered was $14 per 1,000. Plaintiff sought to recover the sum paid for the 26,000 feet of lumber at $7 per 1,000, with interest at five per cent, from August 6, 1912, the date when the payment was made, and also the difference between the contract and market price at the time plaintiff purchased the same to make good the shortage in delivery of the 26,000 feet of lumber.
    There was some correspondence between the parties regarding the sale and purchase of the lumber. The contract for 186,000 feet of lumber was orally made between plaintiff and one A. A. Henry, the secretary of the defendant company. It appeared that defendant had a large amount of lumber stored with Swallow & Hopkins at Winton, Minnesota, and it was agreed between the parties that plaintiff should send to Swallow & Hopkins orders for the lumber purchased, and that Swallow & Hopkins would send plaintiff a memorandum of the amount loaded on each car, car number and date of shipment, and that afterwards defendant would send plaintiff invoices for the lumber so shipped. Plaintiff paid to defendant July 24, 1912, by postdated check of August 6, 1912, $1,302 for the 186,000 feet of lumber due plaintiff under his contract, and defendant gave plaintiff an order on Swallow & Hopkins to ship to him the 186,000 feet of lumber upon plaintiff’s order. This agreement was carried out as to 159,982 feet of lumber, leaving about 26,000 feet undelivered. Swallow & Hopkins refused to deliver to plaintiff the latter quantity of lumber.
    Defendant, in its affidavit of meritorious defense, admitted the sale of the 186,000 feet of lumber and the payment of $1,302 therefor by plaintiff, but claimed that defendant gave to plaintiff an order on Swallow & Hopkins for the whole of the 186,000 feet of lumber, which plaintiff accepted, and defendant contended that such order operated as a delivery of the lumber sold and a full compliance by defendant with its contract with plaintiff.
    The lumber sold, defendant claimed, was stored with Swallow & Hopkins at Winton, Minnesota. The lumber was agreed to be delivered f. o. b. cars at Duluth, Minnesota. As bearing upon the question of complete delivery, defendant offered in evidence a letter of July 22, 1912, written to plaintiff, in which it said:
    “We enclose herewith our memorandum invoice for 186,000 feet. If you will mail us a check for the amount of this invoice less 2%, we will then tell Swallow & Hopkins that the balance of our $6 Boards belong to you and that you will correspond with them direct in regard to shipments. We must guarantee, however, that the entire quantity will be moved before September 1st.
    Abstract of the Decision.
    1. Sales, § 126

      —when evidence insufficient to show delivery of lumber. In an action to recover damages for breach of contract in failing to deliver lumber which had been paid for, where it appeared that an order was given by the seller to a firm with whom the seller had stored a supply of lumber to deliver the amount contracted for to the purchaser but that the delivery was to be f. o. b. cars at the place of storage, evidence held insufficient to show a complete delivery of all the lumber contracted for or an intention to relieve the seller from liability.
    2. Contracts, § 345*—when third person may not sue on contract. Where a person with whom lumber is stored accepts an order by the owner for delivery of lumber to a purchaser, such person is not liable to the purchaser in an action for damages for failure to deliver the lumber, there being no privity of contract between the purchaser and such person.

      “Please let us hear from you promptly as the writer will not be here after this week. ’ ’
    This letter plaintiff answered by a personal visit to defendant, when the contract in controversy was made. Thereupon, on July 24, 1912, defendant wrote the following letter to Swallow & Hopkins:
    “We have sold to William A. Smith of Oconto, Wisconsin, 186,000 feet of 4/4 $6 Boards. Please accept Mr. Smith’s orders for the shipment of this lumber, which will probably take all that we have left in the pile, invoicing to us in the regular manner, giving Mr. Smith only a memorandum invoice showing car number and quantity loaded.”
    Defendant limited its defense to its claim of delivery to plaintiff of the lumber contracted to be sold. It did not question the market value or the grade or quality of the 26,000 feet of undelivered lumber set forth in plaintiff’s statement of claim.
    Louis J. Behan, for plaintiff in error.
    Boyle & Mott, for defendant in error.

      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 Holdom

delivered the opinion of the court.

3. Sales, § 126 —what does not constitute delivery of lumber. An order given by the seller of lumber to a person with whom the seller’s lumber is stored to deliver to a purchaser a specified quantity upon the purchaser’s orders does not operate to transfer the title to such lumber to the purchaser, nor does it constitute a symbolical delivery thereof.

4. Municipal Coubt of Chicago, § 13*—when defendant may not prove matter not set up in affidavit of defense. Under rule 19 of the Municipal Court providing that “every allegation of fact in any statement of claim or of counterclaim or set-off, if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken to be admitted,” the defendant in an action by the purchaser of lumber against the seller to recover damages for the failure to deliver a portion of the lumber paid for who limits his defense to the claim of delivery to plaintiff of the entire amount of lumber contracted to be sold may not prove that the market value or the grade and quality of the lumber in controversy were different from those appearing in plaintiff’s statement of claim, as such matter should - have been set up in the affidavit of defense.


text:
    City of Chicago, Defendant in Error, v. Charles Zitny, Plaintiff in Error.
    Gen. No. 22,188.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Charles Zitny, defendant, for the violation of a municipal ordinance in selling or giving away intoxicating liquor without a license. From a judgment for plaintiff, defendant brings error.
    Defendant waived a trial by jury under a complaint charging him with violating section 1539 of the Eevised Municipal Code of Chicago, in that he, on the 26th day of December, 1915, at the City of Chicago, “did then and there sell or give away in quantities less than one gallon of spirituous or intoxicating liquor without first procuring'a license to sell the same.” The trial judge after hearing all the evidence proffered found the defendant guilty and punished him by the infliction of a fine of fifty dollars, placing upon him the costs of the prosecution and ordering his confinement in the House of Correction until such fine and costs were paid or worked out in such House of Correction at the rate of fifty cents per day; but in no event was the imprisonment to continue for a space of time exceeding six months.
    Defendant was the keeper of a restaurant. At three o’clock in the morning of December 26, 1915, defendant’s restaurant was open and many persons of both sexes were found patronizing it. In certain cups of coffee rum was present. In the kitchen of defendant was found a jug of rum. These incriminating circumstances were not denied. Defendant attempted to explain the presence of the rum upon the theory that one of the customers had a bottle of rum and without the knowledge, consent or connivance of defendant, poured some, of it into his own coffee and that of the others there present.
    Otto L. Kolar, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 10 —judicial notice of ordinance. A trial court must take judicial notice of a municipal ordinance.

2. Municipal Court of Chicago, § 39 *^when presumed that ordinance violated as charged in complaint. It will be presumed on appeal from a judgment of conviction for the violation of a municipal ordinance, where such ordinance is not found in the record, that it was proven to have been violated as charged in the complaint.

3. Municipal Court of Chicago, § 39*—when finding of trial judge in prosecution for violation of ordinance not disturbed. The finding of a trial judge in a prosecution for the violation of a municipal ordinance will not be disturbed as against the weight of evidence where it appears that his finding is sustained by credible evidence appearing in the record.


text:
    Frank Zurek and Martin Wierbowski, Defendants in Error, v. Joseph Ferfecki and Regina Ferfecki, Plaintiffs in Error.
    Gen. No. 22,191.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed without remanding.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Frank Zurek and Martin Wierbowski, plaintiffs, against Joseph Ferfecki and Regina Ferfecki, defendants, to recover commissions under a contract for the exchange of real estate between defendants and others. From a judgment for plaintiffs, defendants prosecute a writ of error.
    Thomas E. Swanson, for plaintiffs in error.

      Abstract of the Decision.

      Brokers—when verdict should be directed for defendants in action for commissions. In an action by a broker to recover a stipulated commission for the exchange of real estate between defendants and others where there was no testimony to contradict evidence in behalf of defendants that the agreement was that no commission should be paid unless the deal was closed, and it was admitted that the deal was never carried out, held that a verdict for defendants should have been instructed.
    Bernard J. Brown, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    William H. Morris and Margaret E. Morris, Defendants in Error, v. Walter W. Taylor, Plaintiff in Error.
    Gen. No. 22,222.
    1. Landlord and tenant, § 325

      —when evidence suffleient to sustain finding, that giving of notice of termination of lease not waived by agents of lessor. In an action to recover for rent under a lease for one year, providing that unless the tenant gave sixty days’ notice to the landlord of his intention to terminate the lease on the date of its expiration the lease should continue in force from year to year until terminated by like notice in some ensuing year, evidence held sufficient to sustain a finding that the provision for giving of notice was not waived by agents of the lessors.
    2. 'Principal and agent, § 86*—when agents may not change provisions in lease. An agent to rent property may not without express authority from his principal, change provisions in the lease.
    3. Judgment, § 86*—when burden of proof rests upon plaintiff after opening judgment by confession. Where a judgment by confession under a power of attorney under a lease is opened and the defendant let in to defend and a trial had, the burden rests upon the plaintiff to prove his case in the same way that he would have been compelled to do had no judgment by confession been entered.
    4. Judgment, 87

      —when proper practice to restore judgment by confession after trial had. Where a judgment by confession has been opened and a trial had, and the issues found for the plaintiff, the proper practice is to restore the judgment by confession and not to enter an independent judgment.
    5. Landlord and tenant—what is effect of provision in lease for specified term for extension in absence of notice. A provision in a lease for one year that unless the tenant shall give sixty days’ notice to his landlord of his intention to terminate the lease on the date of its expiration the lease shall continue in force from year to year until terminated by like notice in some ensuing year is not a mere covenant which may be specifically enforced in chancery or on which an action at law may be maintained for the breach of the covenant, but is a present demise in case the lessee does not give written notice of his intention to vacate the premises within the time fixed by the lease, and is binding.
    6. Landlord and tenant—when provision for automatic extension of lease by failure of tenant to give notice of termination based upon sufficient consideration. The same consideration which supports other provisions in a lease for one year is sufficient to support the provision that the failure of the lessee to give the notice of termination provided for in the lease shall operate as a renewal of the tenancy for the further period of one year.
    Error to the Municipal Court of Chicago; the Hon. Denis W. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed June 19, 1916.
    Hirschl & Hirschl, for plaintiff in error.
    William English, for defendants in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

Defendant was tenant of an apartment for one year from the 1st day of October, 1914, under a lease which provided that unless defendant gave sixty days’ notice to his landlord of his intention to terminate the lease on the date of its expiration, the lease should continue in force from year to year until terminated by like notice in some ensuing year. It was likewise provided that the lessor should be allowed to terminate the lease upon the same notice at the same dates as might the lessee.

The lease also contained a power of attorney to confess judgment for unpaid rent from time to time and for attorney’s fees. Plaintiffs entered judgment by confession for $95 rent, being the rent for October and November, 1915, and $20 attorney’s fees. On motion the judgment was opened and defendant let in to defend, the judgment meantime standing as security, and the execution was stayed until the further order of court. A trial was had before the court, without a jury, and the court found the issues in favor of plaintiffs, and it was ordered that the judgment rendered by confession stand confirmed and in full force and effect as the judgment of the court as of the date of its rendition, and that execution issue for the amount of the judgment and the costs. From this finding and judgment defendant prosecutes this writ of error.

It is not denied that defendant did not give sixty days ’ notice of his desire to have the term terminated, as provided in the lease. He contends, however, that the agents of plaintiffs waived the necessity of giving notice within the time provided for in the lease. This the agents denied. On September 8, 1915, defendant wrote the plaintiffs’ agents that he would vacate the apartment on October 1st and that he would not renew the lease; that he needed more room, and asked the agents to send him a list of six room apartments. The following day the agents replied to defendant’s letter, .inclosing list of six room apartments and saying: “As we explained to you on the telephone, your lease contains a clause which required you to give sixty days’ written notice prior to October 1st, if you wished to vacate on that date—and not having availed yourself of this option the lease remains in force and effect for another year”; and promising to endeavor to re-rent the apartment for defendant’s account. The agents fulfilled their promise by re-renting the apartment and relieving defendant from the payment of rent accruing after the two months ’ rent here involved.

The trial judge might well find from the evidence that the agents did not waive the provisions for notice contained in the lease; furthermore, as a matter of law, the agents could not without express authority from their principal change any provision of the lease, and such authority was not proven.

The court required defendant to take the initiative and introduced his defense first, before plaintiffs were put to their proofs. This was an error of procedure. When defendant was let in to plead, the case stood for trial upon the pleadings, which cast upon the plaintiffs the burden of proving their case under the law in the same way they would have been compelled to do had there been no judgment entered by confession. Sossong v. Rosar, 112 Pa. St. 197; Borchsenius v. Canutson, 100 Ill. 82; Smith v. Dazey, 124 Ill. App. 399. However, this error, resulting in the case being tried in the inverse order of legal procedure, is of no importance and did not adversely affect the rights of defendant.

The proofs of the parties are in the record and by them their rights under the law must be adjudged. The judgment is in proper form. When the issues were found for the plaintiffs it was according to well-settled practice in nisi prius courts to restore the judgment by confession. Cervenka v. Hunter, 185 Ill. App. 547; Hier v. Kaufman, 134 Ill. 215. The entry of a separate and independent judgment would have been erroneous.

The remaining contention is as to the binding force of the provision in the lease, which, if legal, operated to automatically extend the term of the lease one year upon the tenant failing to give the sixty days’ notice therein provided for. This same question was before this court in Williams v. Veeder, 195 Ill. App. 413. We there held that such a provision was binding, and said:

“The provision above quoted as to the renewal of the tenancy in case the lessee failed to give notice of his intention to vacate is not a mere covenant which may be specifically enforced in chancery or on which an action at law may be maintained for the breach of the covenant; but is the present demise in case the lessee does not give written notice of his intention to vacate the premises within the time fixed by the lease. ’ ’

This covenant is not a nudum pactum, but binding as a covenant to the same extent as the other covenants of the lease, for as further said in the Williams case, supra-. “The contract embodied in the lease is an entire one, and the same consideration which supports the other provisions of the lease will support the provision that the failure of the lessee to give the notice provided for in the lease, shall operate as a renewal of the tenancy for the further period of one year, at the option of the lessor.”

We see no valid reason for departing from the reasoning and the law announced in the case of Williams v. Veeder, supra, and the judgment of the Municipal Court is consequently affirmed.

Affirmed.


author: Mr. Presiding Justice Pam

text:
    Morris Novitsky, Administrator, Plaintiff in Error, v. Knickerbocker Ice Company, Defendant in Error.
    Gen. No. 21,076.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1725

      —when opinion on prior appeal law of case.' The opinion of the Appellate Court on a prior appeal is the law of the case.
    2. Evidence, § 232*—when coroner's verdict admissible. A coroner’s verdict containing a finding as to the location of the place where an accident occurred is admissible in evidence in an action for the negligent death of the person killed.
    3. Negligence, § 109*—when instruction on negligence of parents of child proper. In an action for the negligent death of a boy seven years of age at a street intersection while on his way from his father’s shop to his home, about one block away, an instruction that if the jury believed “from the evidence that the parents of the deceased, or either of them, was negligent in allowing deceased to go upon the street at the place of the accident and at the time of the accident," then their verdict should be for the defendant, held proper.

      Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action by Morris Novitsky, administrator of the estate of Samuel Novitsky, deceased, plaintiff, against Knickerbocker Ice Company, a corporation, defendant, for damages alleged to have been sustained by reason of the death of Samuel Novitsky. From a judgment finding the, defendant not guilty, and upon a judgment for costs entered on said verdict, plaintiff sued out this writ of error.
    Edgar L. Masters, for plaintiff in error.
    Miller, Gorham; & Wales and McKinley & Hansen, for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Roads and bridges, § 239 —when evidence sufficient to sustain finding that driver of team not intoxicated. In an action for the negligent death of a boy seven years of age who was killed near a street intersection as the result of being run over by a wagon, evidence held sufficient to sustain a finding that the driver was not intoxicated.

5. Appeal and error, § 1526*—when giving of erroneous instructions on negligence of defendant not prejudicial error. The giving of an erroneous instruction on the negligence of a defendant is not prejudicial error where the jury, which rendered a verdict for defendant, could not reasonably have rendered any other verdict.

6. Roads and bridges, § 239*—when evidence insufficient to show negligence of driver of wagon in running over hoy. In an action for damages for the death of a boy seven years of age who, while on his way north on a street to his home instead of passing north on a crosswalk over an intersecting street, wandered down such latter street and crossed to the rear and west of two street cars standing near such intersection, and was struck and run over as he stepped from behind such cars by a wagon which had just turned the corner from the north and was proceeding on the north side of such cars, evidence held sufficient to show that the driver was not negligent.


text:
    Peerless Pattern Company, Defendant in Error, v. William W. Barthen, Plaintiff in Error.
    Gen. No. 21,169.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed June 19, 1916.
    Statement of the Case.
    Action "by Peerless Pattern Company, a corporation, plaintiff, against William W. Earthen, defendant, to recover damages for an alleged breach of contract for the purchase of goods. From a judgment for plaintiff for $483, defendant brings error.
    A contract was entered into between the parties on January 6, 1910, whereby the defendant agreed to purchase dress patterns, fashion books and fashion guides from plaintiff for a period of three years from date of first shipment to defendant. At the time this contract was entered into, plaintiff delivered to defendant $255 worth of goods. A credit of $55, which had been previously agreed upon between the parties, was allowed on this $255, leaving a balance of $200 which, under the contract, was to be considered as a “standing debit, ’ ’ and was to draw interest at the rate of four per cent, per annum throughout the term of the contract, after the expiration of which, all conditions having been fulfilled, defendant could, under section 8 of the agreement, return all “live patterns in good sale-able condition,” at the original purchase price, in payment of the foregoing standing debit.
    On June 18, 1910 (about four and one-half months after entering into the aforesaid contract), defendant notified plaintiff of his intention to discontinue handling its line of patterns, and returned his entire stock to the plaintiff (including the four-section pattern case furnished by the plaintiff to him), in payment of the standing debit of $200. The property was received by plaintiff and credit given defendant for $208.80 on “discard account,” as indicated by a statement of September 1, 1910, rendered defendant.
    Plaintiff’s action was for the standing debit of $200, with interest thereon at four per cent, per annum, and for minimum damages sustained by reason of plaintiff’s alleged breach of the contract.
    It was urged that plaintiff’s claim of minimum damages, which was allowed by the jury and upheld by the court, was based upon a palpable misconstruction of section 2 of the contract, wherein plaintiff was authorized to ship defendant1 ‘ an assortment of new Peerless Patterns as issued at 5 cents each, not to exceed an average of $10.00 a month, one each size of every neiv pattern issued except 32 bust.” (The portion in italics was written in pen and ink, and the remainder was printed.) Plaintiff contended that, under the section just quoted, defendant was bound to purchase at least $10 worth of patterns each month in any event.
    Defendant further contended that the court in its instructions to the jury erroneously permitted a recovery for the $200 representing the standing debit provided for in the contract. Under the provisions of the contract, defendant was to have on hand at all times a full assortment of patterns, and at the conclusion of the contract, the terms having been complied with, defendant had the right to return all live patterns and receive full allowance therefor. This provision was not peculiar to the defendant but was general and applied to all with whom the plaintiff dealt. Within four and one-half months defendant returned all patterns and also the cases in which they were contained, and wrote a letter indicating that the defendant did not intend to continue with the contract, and that it would be useless for plaintiff to send the patterns back or endeavor to send any new patterns. Plaintiff, on September 1st, and again during October, sent a statement to the defendant wherein defendant was given credit for $208.80, representing the amount of the patterns returned, on the discard account.
    Abstract of the Decision.
    I. Contracts, § 171

      —construction as a Whole. The entire language of a contract should be construed together.
    2. Contracts, § 196*—when written clause prevails over printed clause. Where a written and printed clause conflict, the former prevails.
    3. Contracts, § 196*—how contract for purchase of goods containing written and printed clauses construed. A contract for the sale of dress patterns, fashion books and fashion guides wherein the seller was authorized to ship the purchaser “an assortment of new Peerless Patterns” to be “issued at 5 cents each, not to exceed an average of $10.00 per month, one each size of every new pattern issued except 32 bust,” the portion in italics being written and the remainder printed, construed as controlling and as obligating the purchaser to purchase patterns of the value of $10 monthly only if the value of new patterns except 32 bust amounted to such sum each month.
    4. Contracts, § 384*—when evidence sufficient to sustain finding that purchaser of patterns returned them, for credit on - standing debit. In an action for an alleged breach of a contract to purchase patterns and fashion guides for a certain period under which goods of a certain value were to be considered as a standing debit and to draw interest throughout the term of the contract, after the expiration of which, all conditions having been fulfilled, the defendant could return all “live patterns in good saleable condition” at the original purchase price, in payment of the standing debit, evidence held sufficient to sustain a finding- that when the purchaser returned the pattern shortly after entering into the contract he intended to return them for credit on the standing debit and not on the “discard account.”

      Newman, Poppenhusen & Stern, for plaintiff in error; Edward R. Johnston, of counsel.
    H. G-. Colson, for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

5. Damages, § 66 —what recoverable for breach of contract to purchase goods for definite period. In an action for alleged breach of a contract to purchase patterns and fashion guides for a definite period, under which goods of a certain value were to be considered as a standing debit and to draw interest throughout the term of the contract, after the expiration of which, all conditions having been fulfilled, the defendant could return all “live patterns in good sale-able condition” at the original purchase price, in payment of the standing debit, where defendant rescinded the contract and returned the patterns on hand shortly after the beginning of the term of the contract with the intention that credit be given him on the standing debit, held that plaintiff was entitled to recover the interest on the standing debit only during the period that the goods were retained and also, as minimum damages, its loss of profits sustained as a result of the failure of the defendant to purchase new patterns and as a result of the failure to order fashion guides in such numbers as were provided for in the contract.