text:
    The People of the State of Illinois, Defendant in Error, v. Samuel T. Danley, Plaintiff in Error.
    1. Indictment—signature of foreman of grand jury. An indictment is sufficient though the foreman of the grand jury in affixing his signature used the initials of his Christian name.
    2. Criminal law—saving questions for review. In a prosecution for selling intoxicating liquor in a certain town which is anti-saloon territory, where certificates purporting to be of the town clerk of the town in question are introduced concerning the result of the vote on the anti-saloon question, a general objection to such certificates is not sufficient to raise the question in the appellate court as to whether there is proof that such clerk was elected or had authority to act as clerk.
    3. Dramshops—anti-saloon territory. The act of May 16, 1907, section 7, as to anti-saloon territory, does not require a certified copy of the record of the election to be made by the clerk in order to be competent evidence that the territory is anti-saloon territory but provides that the record may be competent evidence or that the certificate of the clerk showing that a majority of the voters voted "yes” shall be prima facie evidence that the political subdivision to which the vote was applicable has become anti-saloon territory.
    4. Dramshops—when no variance. There is no variance between an indictment charging that sales of intoxicating liquor were made in the town of Emmet, and the proof, though certain witnesses refer to the place where the sales were made as Emmet township.
    Philbrick, J., dissenting.
    Error to the County Court of McDonough county; the Hon. Conrad G. Gumbart, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Curran & Curran and Hartzell, Cavanagh & Babcock, for plaintiff in error.
    T. H. Miller and Wallace A. Walker, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

The plaintiff in error was indicted by the grand jury of McDonough county, charging him with having unlawfully sold intoxicating liquor in the town of Emmet, in said county, while said town was then and there anti-saloon territory.

A hearing was had before the court and a jury, and a verdict returned finding the plaintiff in error guilty on the first ten counts of said indictment, and a judgment was duly entered on said verdict. From that judgment the plaintiff in error sued out this writ of error, thus bringing the record before us for review.

Objection is made to the sufficiency of the indictment herein, because the foreman of the grand jury used the initial letters of his Christian name in place of writing his Christian name out in full.

An examination of the abstract furnished by plaintiff in error discloses the fact that the foreman of the grand jury was summoned by the name of “W. H. Dawson, ’ ’ that he was appointed and sworn in as foreman of the grand jury by the name of “W. H. Dawson,” and that he indorsed the indictments herein as a true bill by the name “W- H. Dawson.”

The statute (section 17 of chapter 78, entitled “Jurors”) provides that an indictment shall be indorsed “A true Bill,” and the foreman shall sign his name at the foot of said indorsement.

Joyce on Indictments, at paragraph 446, says: “An indictment is properly certified by the foreman of the grand jury although in affixing his signature he makes use of only the initials of his Christian name.”

Under this view of the case, we conclude the indictment was properly returned into court, and the motion to quash was properly overruled.

The other objections as to the finding and returning of the indictment, and as to the jurisdiction of the court, are not well taken.

Upon the trial of the cause the following certificates were offered in evidence, to-wit:

“State of Ulinois, j McDonough County, }-ss. Town of Emmet. J

I, Ivan Gr. Welch, Clerk of the Town of Emmet, in said county and state, do hereby certify that at an election held in said town of Emmet on the 7th day of April, A. D. 1908, the question: ‘ Shall this be anti-saloon territory?’ was voted upon in said town of Emmet and that the returns of said election were duly canvassed as the law directs, and said returns so canvassed show that upon said election there was voted 128 votes ‘yes’ and 100 votes ‘no.’

Witness my hand this 18th day of June, A. D. 1912.

Ivan Gr. Welch, Clerk of the Town of Emmet.”

I, Ivan Gr. Welch, Clerk of the Town of Emmet, in said county and state, do hereby certify that at an election held in said town of Emmet on the 2nd day of April, A. D. 1912, the question: ‘Shall this town continue to be anti-saloon territory ? ’ was voted upon in said town of Emmet and that the returns of said election were duly canvassed as the law directs, and said returns so canvassed show that upon said election there was voted 187 votes ‘Yes’ and 50 votes ‘No.’

Witness my hand this 18th day of June, A. D. 1912.

Ivast Gr. Welch.

Clerk of the Town of Emmet ”

To the introduction of each of these certificates, plaintiff in error objected, for the reason there was not sufficient foundation laid, and that said certificates were not in the form required by law to entitle same to be admitted as evidence.

Section 7 of the Act of May 1¡6, 1907, in force July 1, 1907, relating to anti-saloon territory, provides: ‘ ‘ The clerk shall record in a well bound book, to be kept in his office by himself and his successors, the result of the vote upon said proposition, and such result may be proved in all courts and in all proceedings by such record, or by the official certificate of the clerk, and in cases where such record or certificate shows that a majority of the legal voters voting upon said proposition voted ‘yes’ the same shall be prima facie evidence that the political subdivision to which such vote was applicable has become anti-saloon territory.”

Section 8 of the same act provides that when any territory shall by vote become anti-saloon territory, it shall continue to be such until the legal voters thereof, by vote, discontinue the same.

It is urged in the brief of counsel as an objection to the sufficiency of the certificates of the clerk, that there is no proof in the record that Mr. Welch was elected, or had authority to act in the capacity of clerk of the town of Emmet.

This objection was not urged or assigned in the court below, but the objection there was only a general objection, and this is not sufficient to raise the question in this court. We do not, therefore, deem it necessary to discuss the proposition.

The further contention is urged upon the court, that the certificates here involved were not sufficient because they do not purport to be certified copies of the records of the said elections, but are mere certificates of facts or conclusions of the clerk.

We do not agree with counsel that certified copies of the records of the returns of the elections in question were required in this case. A careful reading of the section of the statute above quoted, controlling the proof to be made of such an election, will disclose that the statute does not require a certified copy of the record to be made by the clerk in order to be competent evidence, but only provides that the record may be competent evidence, or that a certificate of the clerk of the town showing that a majority of the legal voters voting upon such proposition voted “Tes” and that the same shall be prima facie evidence that the political subdivision to which such vote was applicable, has become anti-saloon territory.

The same question was before the Appellate Court for the Fourth District, in the case of People v. Willi, 147 Ill. App. 207; and the court there held that a certificate identical in character and language was a sufficient compliance ivith the statute, and prima facie evidence of the result of the election.

A fourth objection is made by plaintiff in error, that the evidence of guilt was not sufficient to warrant the jury in returning the verdict herein.

A large number of witnesses were examined and testified to more than thirty different sales by the plaintiff in error, of what they called wine. These sales were made at the hqme of plaintiff in error in the town of Emmet. A portion of the witnesses frankly said the wine sold was of an intoxicating character, while others thought it would intoxicate if they drank enough of it, while others thought the wine would not intoxicate.

From the whole evidence we conclude the stuff sold was of an intoxicating character and was sold and bought because it would intoxicate, and was clearly a violation of the law; and the number of convictions returned in the verdict was abundantly sustained by the evidence.

The plaintiff in error lived in the town of Emmet, near the town line, and in some of the instances the wine was put into jugs by him and carried across the line by someone representing the purchaser, and delivered in that manner. This was but a subterfuge as in all instances the sale was concluded before the goods were removed from the cellar.

It is contended there is a variance between the indictment and the proof, and that for this reason the judgment should be reversed. The indictment charges that the sales were matte in the town of Emmet, and avers that the town of Emmet was, at the time the sales were made, anti-saloon territory. The certificates of the town clerk show that elections to adopt, and continue the town, as anti-saloon territory, were held by the legal voters of the town of Emmet. In speaking of plaintiff in error’s residence and place of business, which were the same, the words “Emmet Township” were used by the witnesses, while in truth and in fact the town of Emmett and Emmet township is one and the same place. The political subdivision known as the town of Emmet and Emmet township, are used interchangeably, and have the same meaning. The township is the congressional subdivision, and the town of Emmet is the political subdivision, covering the same territory.

In People v. Arms, 165 Ill. App. 394, in speaking upon this subject, the court said: “It is true the proposition to become anti-saloon territory can only be submitted to the politichl subdivisions of towns, precincts, cities and villages, and technically speaking a township is a geographical territory six miles square, and not a political subdivision and not a town, although the terms are sometimes used interchangeably.”

In Phillips v. Town of Scales Mound, 195 Ill. 353, in-discussing this question at length, the court made use of the following language: “It was evidently the intention of the Township Organization Act to create townships, whose corporate names- should be towns, and that they should sue and be sued in and by such names. We are of the opinion, that the legislature intended to use the words ‘town’ and ‘township’ synonymously in referring to the political divisions of the county.”

The fact that the witnesses may have stated the location of where the sales were made as Emmet township is not at variance with the indictment, as it was intended and understood to refer to the same political subdivision of the county.

We do not find any error reversible in character in the action of the court in passing upon the instructions in the case.

We are of the opinion the verdict and judgment are right, and the judgment is affirmed.

Affirmed.

Mr. Justice Philbrick dissenting. I do not-agree with the conclusion of the majority of the court on the questions of the sufficiency of the certificate of the town clerk.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Ed. Finch, Appellee, v. J. W. McIntosh, Appellant.
    1. Appeals and errors—when former decision res adjudicata. Where on a second appeal the same questions are sought to be raised as were passed on in a former appeal, the former decision is res adjudicata.

      2. Appeals and errors—res adjudicata. Where a case is reversed and remanded for new trial, the principle announced by the appellate tribunal in the opinion must control on a retrial and on an appeal from a judgment rendered on retrial, if the case presented on the second trial is the same.
    Appeal from the County Court of McDonough county; the Hon. Conrad G. Gumbart, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Eltihg & Hainlinb, for appellant; Gilbert J. Haihline, of counsel.
    Flack & Lawyer, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This is an appeal prosecuted from the county court of McDonough county, asking to have reviewed a judgment in favor of the appellee in the sum of $168.50.

The only legal question involved in the record is the construction of a certain contract made hy appellee with appellant to bore a well upon the premises of appellant.

This same case, in all respects, was passed upon by this court and an opinion filed December 13, 1911 (Finch v. McIntosh, 171 Ill. App. 120), and the identical questions sought to be raised by this appeal, were squarely passed upon, and the former judgment reversed and the cause remanded for a new trial.

Upon the cause being redocketed in the trial court, in conformity with the ruling "of this court, on the former appeal, a new trial was had upon the same facts as presented at the first hearing, and a judgment rendered against the appellant. Thereupon this appeal was perfected.

The rule of res adjudicata must be applied in this case.

In Penn. Plate Glass Co. v. James H. Rice Co., 216 Ill. 561, the Supreme Court, in discussing this question, said: “The law is clear that when a case is reversed by an appellate tribunal and remanded for a new trial, the principles announced by the appellate tribunal in its opinion, on a retrial of the case in the court to which the case is remanded and upon an appeal from a judgment rendered upon such remandment, must control if the case presented upon the second trial and appeal is the same case as the case in which the opinion was filed reversing and remanding the case.”

The judgment of the county court is affirmed.

Affirmed.


text:
    J. E. Hawthorne, Appellant, v. German Alliance Insurance Company, Appellee.
    1. Insurance—contract. A contract of insurance may be by parol.
    2. Insurance—credit for premium. An insurance company may waive its general rule requiring premiums to be paid before policies shall take effect and give credit for a premium until called for.
    3. Insurance—parol agreement to renew policy. An agent of an insurance company, with full power to receive proposals for insurance, make rates and' issue policies and renew the same, has power to bind the principal by a parol, agreement to renew a policy.
    4. Insurance—when error to direct verdict. In an action on a contract to renew a policy of fire insurance, where the agents of defendant insurance company agree orally to issue policies of insurance on plaintiff’s grain for ninety days and at the expiration of that period, unless otherwise ordered, to keep the policies in force, and the policies are issued and the premiums paid for ninety days and after ninety days the grain is destroyed by fire, there being evidence that it was customary for plaintiff to pay premiums when statements were sent at the end of. thirty days after a policy was issued, it is error to direct a verdict for defendant.
    5. Evidence—as to custom of paying insurance premiums. In an action on a contract to renew a policy of insurance, evidence as to the custom of dealing between the parties in regard to payment of premiums is admissible.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 18, 1913.
    Rehearing denied and opinion modified May 16, 1913.
    Wight & Alexander and De Mange, Gillespie & De Mange, for appellant.
    Barry & Morrissey, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in assumpsit brought by appellant against the appellee company, to recover upon an alleged contract made by appellee to renew a policy of fire insurance.

Issues were joined and the cause heard by the court and a jury, and at the close of the evidence on the part of the appellant, the court, at the request of the appellee, gave the jury a peremptory instruction, directing them to find the issues for appellee. The jury so found and judgment was entered against appellant for costs, and, thereupon, this appeal was perfected.

The facts disclosed by this record may be stated as follows: that Fleming & Chisholm were the agents of the appellee, and a copy of their commission or authority to so act was introduced in evidence; that on the morning of the 28th day of December, 1910, the appellant called appellee’s agents at Bloomington on the phone and said to them: “I want two policies of insurance for $850 each, one against grain in the east elevator and one against grain in the west elevator, making the loss, if any, payable to J. A. Edwards & Co., of Chicago, policies for ninety days, and at the end of that period, unless you are otherwise ordered, keep the policies in force,” and the agent replied: “All right, we will take care of it.”

The policies of insurance were issued as agreed on, on said day, for the period of ninety days, delivered to the appellant and the premiums therefor were, after-wards, paid in January. The policies were forwarded under an agreement to Edwards & Co., of Chicago, and were in their custody at the time it is contended the renewals should have been made. On the 17th day of April, 1911, the east elevator and the grain therein were destroyed by fire, and a total loss of more than the policy in controversy was written for, was sustained by appellant. The policy on the grain destroyed was assigned by Edwards & Co., to appellant, and notice and proof of loss- given. On the morning after the fire appellant went in person and notified the agents of appellee that he had sustained the loss, and asked about the renewal of the policy in question according, as he contended, to the oral contract. Proof of loss was returned by appellee to appellant, they declining to act in the premises, and denying all liability.

Upon the trial of the cause the appellant appeared as a witness in his own behalf and testified that he had been transacting insurance business with the agents of the appellee at Bloomington, Fleming & Chisholm, for four or five years; that he was in the grain business and had been since 1896; that the practice and custom between him and appellee’s agents was to pay premiums when statement was sent at the end of thirty days after the policy was issued, and that such had been the custom between them for about five years; that the policy here in question was issued to him in compliance with the conversation had with the agents over the phone; that he was the owner of the premises and contents at the time of the contract for the policy and at the time of the fire, that a loss of more than the total insurance was suffered by him, and that no. increased hazard or change in the risk had occurred.

The policy of insurance issued under the contract entered into over the phone on December 28, 1910, was introduced in evidence, and provides, among other things: “This policy may, by renewal, be continued under the original stipulations, in consideration of premiums for the renewed term, provided that any increase of hazard must be made known at the time of renewal, or this policy shall be void.”

Appellant offered to prove the following: “We offer to prove by this witness that during his five years previous business with Fleming & Chisholm as insurance agents, the custom and practice between them, in the conduct of that business, was for them to renew all expiring policies unless he specially directed them to allow them to lapse or expire and in the course of that business and up to the time this policy was ordered he relied and depended upon them to renew such policies; that it was the practice to send bim statements of premiums due for such policies every thirty days, after issuing, the policies and he would pay them; that it never has been the practice to demand payment of premiums on the date of issuing the policy and that when he ordered this particular policy he gave no direction as to what company to write the insurance in but depended upon their previous course of business in which they had renewed policies that were not ordered to be allowed to lapse, and also upon the promise to take care of this particular policy, he paid no further attention to it, assuming that they would renew the policy on its date of expiration.”

The court sustained objections to the proffered proof, and exceptions were duly entered.

•It is urged by appellee that the contract here referred to was not a binding and valid contract, first because it was a parol agreement, second, because the parol agreement provided for a renewal after ninety-days.

So far as the law is concerned, an insurance contract is not different from other contracts. If the minds of the parties have met in regard to the essential parts of the contract, it matters not whether such contract- be iri writing or parol. The power to make contracts of insurance by parol agreement has long been recognized by the highest authority, and is the settled law of the state today. Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275; Continental Ins. Co. v. Roller, 101 Ill. App. 77; Ostrander on Fire Insurance, par. 12.

In Trustees of the First Baptist Church v. Brooklyn Fire Ins. Co., 18 Barb. (N. Y.) 69, the following doctrine is- announced: An insurance company may waive its general rule requiring premiums to be paid before policies shall take effect and give credit for a premium until called for. Where such company agrees that a policy for one year shall be renewed from year to year, and be a permanent risk, and that its officers will from time to time call upon the assured with the annual receipts or certificates, and collect the premiums as they become due, and the assured relying upon such promise, omits to call and pay the premium and get a renewal, and the insurers fail to call for the premium when it becomes due, and the property insured is destroyed by fire, the insurance company is liable for the loss.

That an agent of an insurance company with full power to receive proposals for insurance against loss or damage by fire, make rates and issue policies and renew the same, has power to bind the principal by a parol agreement, is not seriously questioned.

But, it is contended that the contract in question.is partly in writing and partly in parol, and it is urgently questioned by appellee whether such a contract could have any binding force; and further, the contention of the appellee is, that the record in this cause presents two contracts, one in writing, which is the policy, and the other in parol, to take effect at the expiration of the term of the written policy.

It will be remembered that on the 28th day of December, 1910, the appellant, being desirous of receiving insurance upon grain in his elevators, called the agents of the appellee over the phone and said to them that he wanted such agents to issue two policies of insurance on his grain in his east and west elevators, for $850 each, making the loss payable to Edwards & Co., of Chicago, and to issue the policies for ninety days, and at the expiration of that period, unless otherwise ordered, "to keep the policies in force, and that appellee’s agents replied: “All right, we will take care of it.”

Under this statement the contract to issue and the contract to renew were made as one contract, and we can see no reason why the obligation to renew was not as valid and binding as the contract to issue.

Appellants assign as one ground of error, the action of the court in excluding proper testimony offered by him as to the custom theretofore prevailing between the agents of the appellee company and appellant, as to the renewal of policies.

If the parol contract made by appellant with the agents of the appellee had been denied, or in any manner questioned, it might have become important to support the same by proof as to the custom of appellee’s agents in dealing with appellant. The importance of the tendered proof does not appear from this record, and, therefore, we do not deem it necessary to discuss the question at this time, except that part relating to the custom as to the payment of premiums, which we hold to be proper.

Under the view of this court as to the law applicable to this case, it was error on the part of the trial court to give the peremptory instruction.

Therefore, the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Fred Wettrick, Appellee, v. Daniel Martin and Edward Martin, Appellants.
    1. Infants—judgment. A judgment against a minor who is not represented by his legal guardian or by a guardian ad litem is merely voidable and is subject to review in one of the ways provided by statute.
    2. Infants—effect of failure to appoint guardian ad litem. It is the duty of the trial court to see that a minor defendant is properly represented, but the omission to appoint a guardian ad litem will not deprive the court of jurisdiction of the person of the minor or of the subject matter of the action.
    3. Infants—minor not represented by legal guardian or guardian ad litem. A minor against whom judicial proceedings are taken should be represented by his legal guardian or a guardian ad litem appointed by the court, and proceedings had therein without such representation are irregular and furnish legal cause for reversal of the judgment or ground for motion in the trial court to vacate a judgment rendered if taken advantage of in apt time.
    4. Infants—setting aside judgment. Where it is sought by petition to set aside a judgment, which was affirmed on appeal, on the ground that defendant therein was a minor whose legal guardian was not served and did not plead, and that no guardian ad litem was appointed, the appellate court cannot determine the, question as to minority at the time of the trial in ■ the original proceeding when the record in such proceeding is not before it, and in such ease the presumption obtains that the court’s action in that proceeding was correct.
    5. Practice—what petition or motion submitted in place of writ of error eoram nobis and governed by same rule. A petition in the circuit court to set aside a judgment of such court, which was affirmed on appeal, on the ground the defendant in the former action was a minor and that petitioner as legal guardian was not served and did not appear and plead and that no guardian ad litem was appointed, is submitted in the place of the writ of error coram nobis by Illinois practice and is governed by the same rule.
    Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Hartzhll, Cavahagh & Babcock, for appellants.
    Scofield & Califf, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

On December 31, 1910, an action in trespess for assault and battery was commenced in the circuit court of Hancock county by appellee against the appellants. The declaration, among other things, alleged that the appellants assaulted, beat and maltreated the appellee. Issue was joined and the cause heard, and on the 6th day of April, 1911, at the March term of the said court, a verdict was returned against the appellants in the sum of $1,000. A motion for new trial was filed, overruled and judgment entered by the court, against the appellants in the sum of the verdict. An appeal was duly perfected to this court, and, on October 14, 1911, a judgment was entered in this court affirming the judgment of the circuit court.

Afterwards, on November 21, 1911, a petition was filed in the said circuit court by the appellant Edward Martin and Nancy J. Martin, guardian of the said Edward Martin, setting forth that said Nancy J. Martin was appointed- as guardian for the said Edward Martin and Nancy J. Martin, guardian of the said accepted and qualified as such guardian, that she was acting in that capacity when suit was begun against said Edward Martin and Daniel Martin in the cause above referred to, and setting out the various steps therein, and averring that no summons was ever served upon her as such guardian; that no guardian ad litem was appointed for said Edward Martin and that said Edward Martin appeared by his attorneys and filed a plea, but that no plea was ever filed by said Nancy J. Martin, as guardian,, or by any guardian ad litem; that said Edward Martin was a minor of the age of sixteen years and that because of his minority and the failure of the court to appoint a guardian ad litem or to bring said Nancy J. Martin in to answer as such guardian, the court was without jurisdiction to hear said cause; that the court, however, proceeded to the trial of the said cause by a jury empaneled Mr that purpose, and a verdict was returned against Edward Martin and Daniel Martin in the sum above set forth, for which judgment was rendered, from which an appeal was perfected to the Appellate Court for the Third District, where the said causo was then pending and undetermined. The petition prayed that the judgment so rendered against Edward Martin, minor, be set aside and vacated, and that said Nancy J. Martin, as guardian, be permitted to appear and defend for her said ward, against the alleged cause of action of the appellee, or that the court appoint a guardian ad litem to appear and defend said cause for said Edward Martin.

Affidavits were filed, in support of the said petition. The appellee appeared and filed answer to the said petition, admitting the guardianship and that said Edward Martin was a minor, admitted that such suit had been begun and tried and judgment rendered as set forth in the petition and that the appeal had been perfected to this court, but averred that this court had affirmed the judgment of the circuit court, and denied that there was then pending the appeal as alleged. The answer further denied that said Edward Martin was incompetent, and averred that he appeared in court in person and by counsel, that an appeal was prayed and that said Nancy J. Martin signed the appeal bond of said Edward Martin and Daniel Martin as the only security; that Edward Martin filed a petition in the said Appellate Court setting up, among other things, that, he had filed in said circuit court a petition, and praying that the Appellate Court would withhold final decision of said cause until he could be heard on said petition in said circuit court and that said Appellate Court had denied the said petition. The answer of appellee was supported by affidavits and documentary evidence.

The court appointed a guardian ad litem for said Edward Martin, who filed answer for him.

The cause was submitted to the court upon the petition, answer of appellee and the guardian ad litem for said Edward Martin, and the affidavits and documentary evidence in support of the respective pleadings and evidence heard, and the court found and ordered that the prayer of the petition be denied. Exceptions were taken to the rulings of the court, and this appeal perfected.

It is the settled law of this state that in all judicial proceedings against a minor, such minor should be represented by its legal guardian or a guardian ad litem appointed by the court, and all proceedings had therein without such representation for the minor are irregular and furnish legal cause for reversal of the judgment, or grounds for motion in the trial court for vacating and setting aside a judgment after it has been rendered, if taken advantage of within apt time. While it is the duty of the trial court to see that a minor defendant is properly represented, the omission to appoint a guardian ad litem will not deprive the court of jurisdiction of the person of the minor, or of the subject-matter of the suit. A judgment rendered against a minor who is not represented as the law contemplates, is not void, but merely voidable and subject to review in one of the ways provided by statute.

In Black on Judgments, vol. 1, par. 193, the following rule is announced: “If a judgment is rendered by a court having jurisdiction of the parties and subject, it is held, by the great preponderance of the authorities, that it will not be void because the defendant was an infant and no guardian ad litem was appointed, although it will be irregular and liable to reversal on a proper proceeding for that purpose.”

The same doctrine is recognized and announced in Millard v. Marmon, 116 Ill. 649.

In the case at bar the service upon the minor defendant was regular.

The question now presents itself whether, under the petition and motion and facts appearing in this record, the relief sought can be granted?

The only information disclosed by this record as to the minority of the appellant, Edward Martin, at the time of the former hearing, is to be found in the petition, answer, affidavits and papers pertaining to the appointment of the guardian. No part of the record in the original cause, which is here sought to be vacated and set aside, appears in this record. The question of whether the appellant Edward Martin appeared by a guardian ad litem is one which underlies the entire rights of said appellant, and can be determined by us only by an inspection of the record of the original suit. That record seems to be essential and indispensable to the decision of the question here at issue.

The question here involved was discussed at length in Mains v. Cosner, 67 Ill. 536, where it is said: “It is no answer to say that plaintiff in error swore that he had appeared only by attorney, and no affidavit was filéd contradicting that statement; because, if a score of witnesses had sworn to the same statement, and the record showed to the contrary, the latter would prevail. * * * Inasmuch, as the fact as to how he appeared in the cause, whether by attorney or guardian, could be properly ascertained only by the record in that cause, and as he has seen fit not to have it brought up, he must fail in his assignment of error.

“A bill of exceptions is not, and never was, anything more than a statutory means of introducing into the record matters which, otherwise, would not be a part of it. We can scarcely conceive of a case under our practice where a bill of exceptions, embodying only such matters as can be brought into the record in that way, would, of itself, be sufficient in this court without a record proper. ’ ’

It would seem from this authority that this court is powerless to determine the question of the minority of the appellant Edward Martin at the time of the trial had in the original proceeding, for the reason the record is not before us, and the presumption obtains that the action of the court in that proceeding was correct.

It further appears from the petition, answers and exhibits in this record, that the appellant Edward Martin prosecuted an appeal to this court, from the judgment here sought to be vacated, and that final judgment was herein rendered before the petition in this proceeding was filed in the trial court.

In Mains v. Cosner, supra, just above quoted from, in passing upon the question thus presented the court makes use of the following language: “It appears by the stipulation plaintiff in error had sued out of this court a writ of error to bring up the record in the original cause, and the judgment had been affirmed in this court. It is the settled rule of the English courts, that a writ of error coram nobis would not lie after affirmance in the appellate court.”

By our practice such motion or petition as the one here made, is submitted in the place of the writ of error coram nobis, and no reason appears why it should not be governed by the same rule.

For the reasons herein stated the action of the court below is approved and affirmed.

Affirmed..


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    Ella Peirce et al., Appellants, v. First National Bank et al., Appellees.
    1. Chancery—when hill sets forth facts entitling complainant to relief. A bill sets forth facts entitling complainant to relief, and demurrers thereto should be overruled where it avers that defendant as agent for complainant’s husband, deceased, sold real estate and failed to account for the proceeds; that since the sales complainant’s husband died leaving complainant ■ and certain children joined as complainants the only heirs at law surviving; that defendant by fraudulent representations induced complainant and her husband to give a mortgage on her individual property when she was not indebted to him; that he conveyed the mortgage to a bank controlled by him and caused foreclosure proceedings to be instituted and represented that he would protect her interest until the redemption period expired; that he permitted the property to be sold for taxes and bought it in his own name when it was his duty as agent to pay the taxes; that said bank bid in the property at the master’s sale in the foreclosure proceeding and assigned the certificate of purchase to a third person; that through the ' connivance of defendant, complainant and her husband conveyed the equity in the premises to a third person for a stated consideration when none was paid; that certain persons claim some interest the nature and kind of which claims are unknown; and prays for general relief, that the foreclosure proceeding be opened up, the" decree vacated, and an accounting had.
    2. Appeals and errors—when hill admitted to he true. An appeal from a decree dismissing a bill for want of equity after demurrers are sustained thereto, the bill must be admitted to be true.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. B. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Beversed and remanded with directions.
    Opinion filed April 18, 1913.

      J. C. McClure, for appellants.
    C. M. Briggs and Jay Briggs, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery, filed in the circuit court of Vermilion county by the appellants against the appellees, seeking certain relief thereby. The appellees, defendants below, were all duly served with process, and filed demurrers to the said bill. The demurrer was sustained by the chancellor, and appellants having elected to stand by the bill, the same was dismissed for want of equity, at the cost of appellants, and, thereupon, the appellants prayed for and have perfected their appeal to this court.

The complainants in the bill are the widow and children and heirs at law of one W. P. Peirce, deceased.

The bill alleges, in substance, that W. P. Peirce, deceased, was, in the year 1882, the owner of eighty-nine acres of land adjoining the city of Hoopeston, and that a portion of the same was laid out and platted into lots and blocks by him, and became an addition to that city; that seven of these lots so platted became the separate property of the complainant Ella Peirce, that by an agreement the residue were turned over to one J. S. McFerren, as agent of Mr. Peirce to plat into lots and blocks and sell, and that shortly after this agreement was entered into, Mr. McFerren induced Mr. Peirce and the complainant Ella Peirce, his wife, to convey by deed to McFerren, the remaining portion of said tract of land belonging to Mr. Peirce, for convenience in selling, and to secure any money that McFerren should advance to Mr. Peirce; that sales were made by said McFerren of a large portion of said property, and money received therefor in the sum of $24,000; that on December 3, 1903, it was discovered that the seven lots known as the separate property of Mrs. Peirce had, by mistake, been deeded to McFerren at the time of the first conveyance, and the said McFerren and wife deeded the same back to complainant Ella Peirce, and placed the consideration in the deed at $10,000, and on October 6, 1905, the said McFerren, by representing that it was necessary to correct an error in some former conveyance, induced Mr. and Mrs. Peirce to convey the same property back to him, for a stated consideration of $8,000, when in truth and in fact no consideration was paid, and it was not known that the separate property of Mrs. Peirce was included therein.

The bill further alleged that again, on March 28, 1906, McFerren came to the Peirce home and represented to them that it was necessary to correct a mistake, and had them sign another deed, conveying to him the same property, with a named consideration of $4,000; and again, on January 18, 1908, a similar request was made and Mr. and Mrs. Peirce signed another deed, conveying the same property to McFerren, in which deed the consideration was stated to be for one dollar and other good and valuable considerations; that on the same day McFerren conveyed the same property to said W. P. Peirce for the consideration of one dollar, and on that same day, by the same false representations, he induced Mr. and Mrs. Peirce to execute a mortgage on the individual property of Mrs. Peirce, for the sum of $9,649.02, due eighteen months after date, and that Mrs. Peirce was not indebted to said McFerren and did not know the instrument was a mortgage; that on January 25, 1908, said McFerren assigned the note and mortgage to the First National Bank of Hoopeston, in which bank it is alleged said McFerren held a controlling interest, and a foreclosure proceeding was immediately begun, and when complainant, Ella Peirce, learned of the commencement of the foreclosure suit she went to see Mr. McFerren and he assured her he would protect her interest, and continued to promise protection to her until the time of redemption had expired; that pending the time of redemption the said McFerren bought the property in for taxes and was building up title in his own name under the ■ tax deed, when, under the* contract of his agency, he was to pay the said taxes.

The bill further alleges that Mrs. Peirce at no time intended to deed or incumber her property, and did not know that the instruments she signed were a deed and a mortgage upon her own property, and that her name was procured to said instruments by fraud and deception on the part of said McFerren, with a view to fraudently secure her property; that all of the • deeds signed by her conveying or incumbering her ■husband’s property, were at the solicitation of McFerren, to correct what he represented were mistakes, or to secure money advanced to her husband, and such as were given to secure money were understood to have the effect of mortgages; that at the master’s sale in the foreclosure proceeding, the First National Bank bid in the premises, received a certificate of purchase and assigned the same to J. D. Madding, who took deed to the property.

It is further alleged in the bill, that through the connivance of said McFerren, complainant Ella Peirce and her said husband were induced to convey their equity in said premises to Frank C.- Patton, for the stated consideration of $25,000, when in truth and in fact Mr. Patton did not pay them anything, but fraudulently secured the said title by false and fraudulent means; that the First National Bank, The Danville Building Association, M. O. Lee, The Danville Benefit and Building Association, J. D. Madding, Frank C. Patton, J. S. McFerren and Charles Palmer, trustee, have or claim to have some interest in the said premises named in said conveyances, the exact nature and extent of which is unknown to complainants, and that all of said parties had full knowledge, before they acquired such interests as they now claim, of complainants rights in the premises.

The bill further sets up that said McFerren, at the time of the- taking and transferring of the said mortgage to the First National Bank, had a large amount of money in his hands belonging to said W. P. Peirce, deceased, arising from the sale of the lands aforesaid under .the contract aforesaid; and further avers that said McFerren owns the controlling interest in the said First National Bank, and that the officers of the bank and McFerren well knew that the complainant Ella Peirce was the owner of the seven lots which were described in the mortgage so fraudulently obtained from said complainant, and well knew that she' was induced to sign the said mortgage through fraudulent representations and deception on the part of said McFerren.

It is further alleged in the bill, that the complainant offered the said First National Bank, said McFerren and J. D. Madding the redemption money, but that same was refused; that she demanded an accounting from the said McFerren of the moneys received from the sale of said lots.

The prayer of the bill is that the defendants-, appellees here, be required to account for all moneys arising under the sale of the premises in question, and all rents and profits received by them, either as mortgages or otherwise; that the deed to the said Frank C. Patton be held to be null and void; that the foreclosure proceeding and the decree and sale thereunder, be held null, and set aside, and the complainants here be permitted to answer the same, and that upon a hearing complainants stand ready to pay any amounts adjudged against them.

The only question submitted for our determination is, whether the bill contains sufficient averments to require answers, when all of the averments thereof are taken to be true.

The bill avers that the appellee McFerren, as agent of her husband, now deceased, sold a large amount of real estate and failed and refused to account for the proceeds, and that since the sales of said real estate her said husband has died, leaving the appellants, the widow and children and only heirs at law, him surviving; that said McFerren fraudulently and by false representations induced the appellant, Ella Peirce, and her husband, in his lifetime, to give a mortgage upon the individual property of the wife, when she was not in any manner indebted to him; that said McFerren immediately conveyed the said mortgage to the First National Bank of Hoopeston, an institution controlled by him and a majority of the stock held by him; that, occupying the confidential relation of agent, and while holding the controlling interest in said Bank, said McFerren caused foreclosure proceedings to be instituted against said individual property of appellant, Ella Peirce, and at the same time represented to her that he would protect her interest and that her property should not suffer, and that he continued to make such false representations until the time of redemption from the foreclosure sale had expired.

The bill further sets forth that during this time, and in order to further incumber this property, said Mc-Ferren permitted the said property to be sold for taxes and purchased the same in at the tax sale in his own name, while it was his duty under his agreement as agent, to pay the taxes of said property; that the said First National Bank, acting under the control and direction of said McFerren, bid in the said property at the master’s sale in the foreclosure proceeding, assigned the certificate of purchase to one J. D. Madding, who secured a master’s deed to the property; that through the connivance of the said McFerren, appellant, Ella Peirce, and her said husband, now deceased, were induced to convey the equity in said premises to Frank C. Patton, for a stated consideration of $25,000, when in truth no consideration was ever paid for said deed.

The bill further avers, that J. D. Madding, Charles Palmer, trustee, The Danville Building Association, M. O. Lee, and the Danville Benefit and Building Association all claim some interest in said premises, the nature and kind of which claims are unknown to appellants.

The prayer of the bill is to have the foreclosure proceeding opened up and the decree vacated, and to have an account had and taken with said McFerren and said First National Bank, and for general relief.

"While the bill as presented is not a model in form, it does charge that appellants lost their property by reason of false and fraudulent representations made by said McFerren in his individual capacity and as the holder of the controlling interest in said bank. It does charge that by reason of his false pretenses and false representations, appellant Ella Peirce was prevented from making a defense at the time the foreclosure proceeding was pending, and that by reason of Ms misrepresentations she was prevented from redeeming from the said foreclosure sale; and that she was fraudulently induced to convey the equity of redemption in the premises to the appellee Frank C. Patton.

She further avers that by false and fraudulent statements of said McFerren she was induced, in the first instance, to incumber her individual property without knowing she was conveying same, and when she was not indebted in any manner to said McFerren or to his bank.

If this bill be true, and for the purposes of this proceeding it must be admitted to be true, there is every reason in equity and good conscience why the whole transaction should be inquired into. It may be true, and quite likely is true, that the two Building Associations and Mr. Lee, Mr. Madding and Mr. Palmer, trustee, may not be guilty of being mixed into the fraud charged, but in order to deal with this property, we can see no just reason why all claimants may not properly be brought into court and their interests determined.

We think the demurrers should have been overruled, and the appellees required to answer.

¡ The decree dismissing the bill for want of equity will be reversed, and the cause remanded to the trial court with directions to overrule the demurrers and require the appellees to answer.

Reversed and remanded with directions.


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    Harris Hickox, Appellee, v. Wilbur P. Armstrong, Appellant.
    1. Forcible detainer—settlement. Where plaintiff leases certain premises to defendant with a provision that defendant may, at the expiration of the lease, remove a building which he constructed under a former lease, and after the expiration of the lease plaintiff obtains a judgment in forcible detainer before a justice of the peace from which defendant appeals to the circuit court and pending the appeal removes the building and notifies plaintiff that he may take possession, the taking of possession by -plaintiff was not a settlement and discharge of plaintiff’s cause of action.
    2. Forcible detainer—where possession is given up pending litigation. Where the possession of property is delivered to the plaintiff in an action of forcible detainer, after the institution of the suit,' in the absence of proof of settlement, the plaintiff may still prosecute the action to judgment.

      Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Hamilton & Catron, for appellant.
    W. St. J. Wines, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of forcible detainer, begun in the justice of the peace court, where judgment was rendered against appellant, whereupon an appeal was perfected to the circuit court of Sangamon county. A hearing there resulted in the issues being found for the appellee, and the court rendered judgment against appellant, from which judgment this appeal has been perfected.

The facts of the case may be stated as follows: Appellant was the tenant of appellee. During the life of a former lease appellant had constructed a two story brick building on the premises, and the last lease provided that appellant should have the right to remove the building at the expiration of the lease, which expired July 1, 1911. On the expiration of the last lease appellee demanded possession of the premises, and on July 11,1911, a formal written demand for possession was served. On the 27th day of July, 1911, the suit for possession was commenced before the justice of the peace resulting in judgment for appellee, and thereupon the appellant perfected his said appeal to the circuit court. From July 1, 1911 to November 20, 1911, appellant continued to occupy the building, and to collect rent from his tenant who occupied the upper rooms of the building.

Pending the hearing in the circuit court, and on the 20th day of November, 1911, appellant removed his building off of the premises, and wrote appellee notifying Mm of that fact and stated that appellee was at liberty to take possession. Appellee took possession immediately.

The hearing on the appeal from the justice of the peace came on in the circuit court on April 15, 1912, where a jury was waived and the cause submitted to the court for determination.

Appellant, at the close of all of the evidence, asked the court to hold, as matter of law, that the tender and offer of the premises by appellant, after the appeal had been taken, and its acceptance and the taMng of possession by appellee, was a settlement and discharge of appellee’s cause of action. The court refused to hold such proposition to be the law applicable to the case, and rendered judgment against appellant, and from that judgment this appeal was prayed.

The action of the court in refusing to hold the proposition submitted as the law applicable to the case, is assigned as for error.

The law is well settled in this state, that where the possession of property is delivered to the plaintiff in an action of forcible detainer, after the institution of the suit, in the absence of proof of settlement, the plaintiff may still prosecute the action to judgment.

In Patterson v. Graham, 40 Ill. App. 399, the reason for the rule is announced as follows: “The plaintiff has a right to pursue his proceeding to judgment, after he has, pending the action, obtained possession, for the purpose of fixing liability on the appeal bond for the wrongful detention of the premises.”

TMs doctrine is supported by the following authorities : Bell v. Bruhn, 30 Ill. App. 300; Daggitt v. Mensch, 41 Ill. App. 403; Patterson v. Graham, 140 Ill. 531.

Under this view of the law the court properly refused to hold the proposition asked to be the law applicable to tMs case.

No error appearing in the record, the judgment of the trial court must be, and is, affirmed. Affirmed.


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    The People ex rel. John F. Willey et al., Appellees, v. Fred Buck, President et al., Appellants.
    1. Mandamus—appeal. Where relators, alleged to be taxpayers and voters of a park district, filed a petition for mandamus to compel the trustees to call an election of officers on a certain date and after a demurrer to respondent’s answer was sustained the writ issued, an appeal from the order and judgment will be dismissed where the date fixed by the order for the election has passed.
    2. Mandamus—where impossible to enforce. MancLmus will not issue where the right sought to be enforced has become a mere abstract right the enforcement of which by reason of changed circumstances the court can see would be impossible, since no substantial or practical benefit can result to the petitioner.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1912.
    Dismissed.
    Opinion filed April 18, 1913.
    Rehearing denied May 9, 1913.
    B. L. Catron, for appellants.
    Albert Salzenstein and Thomas F. Ferns, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a petition for mandamus filed by certain relators who were alleged to be tax payers and legal voters of the city of Springfield and of Pleasure Driveway and Park District of Springfield, praying that a writ of mandamus issue directed to certain trustees of said Pleasure Driveway and Park District therein named commanding them to forthwith call the regular election for president and trustees of said Pleasure Driveway and Park District, to be held on the third Tuesday of July, 1912, and to give twenty days’ notice of such election, the purpose for which same was to be held, appoint the polling place or places and name the judges and clerks of the election in that part of the district outside of the city of Springfield, etc.

The petition contained many statements and recitations of facts, upon which the right to the award of the writ was claimed, but in the view we take of the case, no good purpose could be accomplished by restating same here.

To the petition the respondents filed an answer. Relators demurred to the answer, which demurrer was, by the court, sustained. Respondents, having elected to stand by their answer, judgment was, on June 25, 1912, rendered in favor of relators and the writ of mandamus was ordered to issue in accordance with the prayer of the petition, commanding the respondents to give notice, etc., and to hold the election for the officers of said board, on the third Tuesday of July, 1912. From the order and judgment of the court an appeal was prayed to this court to the October term, 1912, thus bringing the record here for review.

It will be observed from the above statement, that judgment was entered and the writ ordered to issue on the 25th day of June, 1912, and on the same day an appeal was prayed and granted to this court.

The order and judgment of the circuit court authorized the writ to issue, directed the respondents to perform certain duties, to-wit: give notice for the election to be held on the third Tuesday in July, 1912, appoint judges and clerks and make such other and further arrangements to hold an election for the election of president and trustees of the said Driveway and Park District as might be legal and necessary.

The appeal bond was filed on the 26th day of June, 1912, and the record was filed in this court on October 2, 1912. More than two months had elapsed, at this time, since the date fixed by the order and judgment of the court for the holding of the election in question.

If this court should affirm this order and judgment of the circuit court, it is' not in the power of the court to enforce the judgment, that is, to compel, the respondents to hold an election on the third Tuesday of July, 1912.

It is the settled rule of law, as applied in cases of mandamus, that courts will not award this peremptory writ where the right sought to be enforced has become a mere abstract right, the enforcement of which the court can see would be impossible, since no substantial or practical benefit could result to the petitioner.

In the case of the People v. Kay, 154 Ill. App. 233, in discussing this subject, the court said: “The prayer of the petition only relates to the election to be held on April 20,1909. That period has passed. No mandamus can now issue to call that election in any particular manner. It is well settled that a peremptory writ of mandamus will not be awarded when the right sought to be enforced is an abstract right, the enforcement of which by some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioners.”

In Gormley v. Day, 114 Ill. 185, our Supreme Court, in discussing this question, use the following language: “It is a well recognized principle that courts, in the exercise of their jurisdiction in mandamus, will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.”

The same rule is announced and recognized in the following cases: Cristman v. Peck, 90 Ill. 150; People v. Rose, 219 Ill. 46; Kenneally v. City of Chicago, 220 Ill. 485 and Kendrick v. Wendel 157 Ill. App. 540.

It appears to this court from the facts disclosed by the record, that no good purpose could be served in case of an affirmance of the order and judgment of the circuit court.

The appeal in this case, is, therefore, dismissed.

Appeal dismissed.


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    Frank C. Davidson, Appellee, v. Charles K. Zorger, Administrator, Appellant.
    1. Brokers—customary and usual charge for commissions. It is not error to exclude evidence as to the customary and usual charges for procuring purchasers for land where an action for commissions is based on a contract fixing the compensation at any sum procured above a specified amount and the evidence shows that such was the contract.
    2. Practice—when verdict should he directed. When plaintiff has made out a case and no evidence is offered tending to contradict it, courts have the power and it is their duty to direct a judgment for plaintiff.
    3. Brokers—when peremptory instruction in action for commissions warranted. In an action for commissions for the sale of real estate based on a contract fixing the compensation at the price secured above a certain sum, held, that the court was warranted in giving a peremptory instruction in favor of plaintiff.
    Appeal from the Circuit Court of De Witt county; the Hon. William G-. Cochran, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    John Fuller and L. O. Williams, for appellant.
    Ingham & Ingham, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a claim filed in the probate court of DeWitt county, against the estate of one Jacob K. Zorger, where the claim was allowed as of the seventh class, and an appeal was prosecuted to the circuit court of said county, where a hearing resulted in a verdict and judgment in the sum of $1,064.32 against the said estate. From this judgment an appeal was prosecuted to this court by the administrator of the estate.

The claim sought to be recovered upon in this case was for commissions due appellee for procuring a purchaser for the lands of the deceased, under a memoranda contract, as follows:

“240 acres in Nixon township, DeWitt county, Ill., $175, net to me. Cash March 1st, 1911. 5000 down, 30 days option. J. K. Z.”

The memoranda, except the initials at the bottom, was shown to be in the handwriting of the appellee. The initials were proven to be in the handwriting of the deceased.

A Mr. Booth was called as a witness in behalf of appellee and testified, in substance, that he had a conversation with the deceased shortly after the sale of the property, and that the deceased said that appellee had sold the lands in question for him and that appellee had made a good thing out of it, as his commissions amounted to either $1,000 or $1,200, the witness had forgotten which, and that deceased further said that he got all the land was worth to him.

The purchaser of the farm, Mr. Olson, testified that appellee, as agent for the sale of the farm in question, brought him and the deceased together, and that after some conversation a contract was prepared and signed by himself and appellee 1 ‘ as broker, ’ ’ and then taken to the deceased who wrote thereon: “I hereby approve the above sale, J. K. Zorger.”

It is admitted that the trade was concluded, money paid and deeds executed and delivered under the contract.' It is further admitted that the deceased, on the day the contract was signed, received $1,000 from the purchaser according to the contract, and that on the following day the deceased gave appellee a check for $200, and the check given and the stub book of deceased were introduced in evidence, and show that the deceased wrote thereon the words: “As part commissions on sale of Weldon farm.”

The appellant offered proof as to the customary commissions charged by real estate dealers in that neighborhood at the time the sale herein involved was made, for bringing together a purchaser and seller, and tendered proof to show that one dollar per acre was the usual and customary price.

The court sustained the objection of appellee as to the tendered proof, and exceptions were duly noted.

The appellee then asked the court to give, and the court gave, a peremptory instruction directing the jury to find a verdict for the appellee for $1,000, together with interest thereon from March 1, 1911, this being the date when the sale was to be, and was, completed.

The jury returned a verdict in conformity with the peremptory instruction, and, after overruling motions for new trial and in arrest of the judgment, the court entered judgment on the verdict, from which judgment this appeal was perfected.

Two errors are assigned as cause for reversal of the judgment. First, that the court refused to admit evidence as to the usual and customary price of real estate dealers’ commissions for procuring purchasers for such farms as- the one in question; second, that the court erred in giving the peremptory instruction requiring the jury to return a verdict for the appellee.

This cause of action is based upon a contract which fixes the amount of appellee’s compensation at any sum that he may be able to sell the farm for above the price of $175 per acre, and as disclosed by the evidence of the witness Booth in the conversation he had with the deceased after the sale of the farm, the deceased seemed to be satisfied with appellee’s contention as to the amount he was to receive. So we may reasonably conclude that the minds of the parties met upon the question of the consideration to be paid to appellee. Therefore, the rules applicable to the customary and usual charges in this character of transaction would not apply. Appellee must recover, if at all, by reason of the contract in question.

As to the second question raised by appellant’s assignment of errors, the evidence introduced on behalf of appellee was clearly sufficient to authorize a judgment for appellee. There being no conflict in the evidence it must be conceded to be true. Courts have the power, and it is their duty, when the plaintiff has made out a case, and no evidence tending to contradict it is offered, to direct a judgment in favor of the plaintiff in the case. It was not error for the court, under the proof in the case, to give the peremptory instruction.

Not finding any reversible error in the record, the judgment is affirmed.

Affirmed.


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    The People of the State of Illinois ex rel. John W. McPherson, Appellee, v. Western Life Indemnity Company et al., Appellants.
    1. Mandamus—when lies in famor of insured to compel company to restore him to membership. Mandamus will lie in favor of the insured against the insurance company to compel the company to accept money tendered in payment of premiums and to restore him to membership where he was a . member of such company and has complied with all its rules, by-laws and regulations.
    2. Insurance—provision granting period of grace for payment

      of premiums subject to interest charge construed. Where a condition attached to an insurance policy provides that “A grace of 30 days subject to an interest charge at the rate of 5% per annum shall be granted for the payment of every premium after the first year,” it must be understood as meaning that thereunder the insured may be chargeable with such interest on the deferred payment during the time intervening between the time payment was due and its payment.
    3. Insurance—when company cannot expel insured because interest charged not tendered. An insurance company has no immediate ground to expel a member and cancel his policy where the member tenders the premiums within the time specified in a provision that 30 days’ grace subject to an interest charge shall be granted for the payment of premiums, though such member does not tender the interest, which is not charged to him, since if the company has an interest charge against him it cannot discharge or expel him until the interest is charged against him and he has been given an opportunity to pay it after notice.
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Thomas J. Graydon and Herrick & Herrick, for appellant.
    Ingham & Ingham, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of DeWitt county overruling a demurrer filed by appellant to the bill filed herein by the appellee relator, and awarding a writ of mandamus against appellant, commanding it to accept certain money tendered it in payment of the premiums upon a life insurance policy, and to restore appellee to his membership in the appellant’s insurance company.

The petition, in substance, charges that on April 1, 1910, the appellant Company was a corporation organized and doing business under and by virtue of the laws of the state of Illinois, and on said date entered into, and delivered to appellee, a certain, contract of insurance, and that under and by virtue of said contract, appellant did issue to appellee, payable to Laura C. McPherson, his wife, a life insurance policy, in the sum of $2,000. That the consideration for the said policy was that appellee would pay to appellant, the sum of $14-98, according to the terms of the contract of insurance; and that appellee has paid all of the premiums as they became due, except the payment of December, 1911, and on that occasion he offered to pay same on the 28th day of December, 1911, which was within the time fixed by his contract, and tendered to the proper officer the said sum of $14.98, but that said officer of appellant refused to accept same; and. that he has tendered and offered to pay said premiums each month thereafter as they became due, but appellant, on each occasion, refused to accept said payments. The petition further avers that appellant notified him that no further premiums would be accepted, and that his insurance policy had lapsed and was no longer in force; that ever since the receipt of the said policy appellee has abided by and conformed to every provision of the by-laws and rules of appellant; that on the 12th day of February, 1912, the appellee demanded of appellant that he be restored to membership in said company, and that his policy of insurance be kept, held, treated and regarded as in full force and effect, which said request was denied by appellant.

The petition concluded with a prayer for a writ of mandamus to require appellant to accept the premiums so tendered and restore appellee to his membership and to all his rights and privileges thereunder, and to treat said policy and contract as in full force.

The demurrer filed to the petition was both general and special. The causes of special demurrer are, (1) that mandamus will not lie to enforce a contract between a private person and a private corporation; (2) that mandamus mil not lie to enforce the fulfillment of an executory contract; (3) that the fact that appellant refused to accept and retain appellee’s monthly payments will not warrant the issuance of the writ of mandamus; (4) that the provisions of item 4 of the conditions attached to the policy, required that there should have been tendered interest at the rate of five per cent per annum from December 1,1911, to the date of the tender.

It is first insisted by appellant that mandamus will not lie in this character of proceeding. This question, it mil be observed, is raised by the demurrer to the sufficiency of the petition. The demurrer admits everything contained in the petition, that is well pleaded, to be true.

The petition discloses the fact that appellee was a member of the appellant’s company, and had complied with all of the rules, by-laws and regulations of said company; had paid all premiums within the time limited by the by-laws and the contract under which he received such policy. This squarely raises the question as to whether mandamus will lie under these circumstances, to compel the appellant to recognize the legal rights of appellee.

“Mandamus will also lie to compel a corporation to admit to membership one who is in law entitled to the franchise of a corporation, unless excluded by the operation of some valid regulation or by-law of that particular society. And where a party having a clear presumptive title, claim or admission to the exercise of a corporate franchise, the right of immediate expulsion should be clear and unquestioned, to justify the rejection of the claim.” Moses on Mandamus, p. 183.

“The writ of mandamus has often been used to compel private corporations to restore to membership corporators whom they have wrongfully disfranchised or suspended.” Merrill on Mandamus, par. 166.

“Notwithstanding the reasons stated for denial of mandamus to admit a person to membership in a private corporation, that of contractual relation, the general doctrine is that where a person has been illegally expelled from such an institution, mandamus will lie in proper cases.” 2 Bailey on Habeas Corpus and Special Remedies, par. 308.

From these authorities we conclude that mandamus will lie in this class of cases, and that the facts set forth in this petition are sufficient to warrant the court in ordering the writ to issue.

We have not overlooked the contention 5f the appellant that the $14.98 tendered was not a sufficient amount, as.provided in item 4 of the conditions attached to the policy, which reads as follows: “A grace of thirty days, subject to an interest charge at the rate of five per cent per annum, shall be granted for the payment of every premium after the first year, during which time of grace the insurance shall continue in force. If death occur within the thirty days of grace the unpaid portion of the annual premium for the then current policy year, shall be deducted from the amount payable hereunder.”

“A grace of thirty days, subject to an interest charge at five per cent per annum,” implies, and must be understood, as meaning that one who seeks to take the benefit of the thirty days allowed by this item 4, may be chargeable with interest at the rate of five per cent per annum on the deferred payment during the time intervening between the time the payment was due and its payment. The word “charge” is made use of, and that must be understood to mean that this item of interest, which in the case at bar amounts to about the sum of five cents, might properly be charged to appellee and after being so charged and notice having been given, if he failed to pay it would be cause for complaint.

It cannot be reasonably said that appellee was called upon to anticipate and figure out and tender the exact amount of the interest which appellant might make as a charge against him for his delinquency. The rule is well settled that one who has title to a corporate interest, cannot be expelled unless the right of immediate expulsion is clear and unquestioned. In this case there was no immediate ground under the policy or the conditions attached thereto, under which appellee could have rightfully been expelled and his policy canceled. At the date of the tender of the premium on the 28th day of December, 1911, he was a member in good standing, and was not delinquent in any respect so far as this record shows. It was the duty of the appellant to have received of appellee the premium tendered and to have given him credit therefor as of that date, and also to have received and given him credit for the subsequent amounts tendered, as disclosed by appellee’s petition. If it had a charge against appellee of an interest account, it was not within the privilege of appellant to discharge or expel him as a member until said item of interest had been charged to him and he had been notified and been given an opportunity to pay the same.

The holding of the court below was proper and right and it is the duty of the appellants to restore appellee to all his rights, privileges and benefits existing at and prior to the attempted expulsion of appellee.

The judgment of the court is affirmed.

Affirmed.


text:
    Hoopeston National Bank, Incorporated, Appellee, v. C. C. Williams and Nathan Bond, Administrators, Appellants.
    1. Administration of estates—claims. One who acquires title in a claim filed against an estate after the date of filing may prosecute the same in the name of the party filing.
    2. Administration of estates—where claim is pled by corporation. That a claim filed against an estate by a corporation is after-wards transferred to a trustee for the benefit of the stockholders does not affect the rights of the trustee to continue the prosecution in the name of the corporation.
    3. Negotiable instruments—transfer. Where a claim is filed against the estate of decedent, on a note claimed to have been transferred to plaintiff under a contract of sale and guaranty by a banking firm in which decedent was a partner, evidence that one of the members of the firm indorsed the firm name on the back of the note is sufficient to show it was transferred.
    4. Negotiable instruments—sale and guaranty. "Where a claim is filed against the estate of a decedent on a note, transferred to plaintiff under contract of sale and guaranty by a banking firm in which decedent was a partner, plaintiff having renewed the note in its own name, registered it in its register among its assets and having failed to make any complaint within the time given for acceptance, is held to have accepted it and removed it from the operation of the guaranty.
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed April 18, 1913.
    Rehearing denied May 7, 1913.
    C. M. Briggs and Rearick & Meeks, for appellants.
    Bindley, Penwell & Bindley and Acton & Acton, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a claim filed in the prohate court of Vermilion county by appellee against the estate of James A. Cunningham, deceased. Upon a hearing in that court judgment was rendered in favor of the appellee, and an appeal was perfected to the circuit court of that county, where the cause was heard by the court without the intervention of a jury. Judgment was rendered in favor of the appellee, from which judgment this appeal has been perfected by the administrators, etc., of said estate, to this court.

A brief history of the cause may be stated as follows: John L. Hamilton and James A. Cunningham were engaged in the general banking business at Hoopeston, Illinois, and had a large amount of negotiable paper which they sold to the appellee, and entered into a written contract of sale and guaranty, the portion of which bearing upon this case is as follows:

That Hamilton & Cunning-ham “guarantee the payment to the party of the second part of all commercial paper sold by them and transferred to the party of the second part. The said second party, however, shall make a reasonable effort to collect such note or notes or to secure satisfactory security, but the first parties shall not be released on the guarantee by their failure so to do. The party of the second part shall be at no expense in collecting said note or notes and shall not be compelled to enter suit against the maker or endorsers of said note or notes and any and all expense that said second party may incur in collecting said note or notes (not collected from the makers thereof) shall be paid by the parties of the first part. When said note or notes, or any of them, become due and security satisfactory to the Discount Committee, acting for the party of the second part, is not given on said note or notes then in such case the parties of the first part agree to pay the same to the party of the second part within thirty days from date of maturity, or in case the parties of the first part are willing to grant a further extension of time and guarantee said notes, such extension shall be granted. ’ ’

Under the above mentioned agreement, all notes not paid at maturity and where the security was not satisfactory, Hamilton & Cunningham had the privilege of extending the time of payments to the maker or paying same themselves.

After entering into this agreement, among other notes transferred to the appellee was one for $8,800, dated June 30, 1909, and another for $5,000 dated March 23, 1909. The interest was paid on the $8,800 note for a time, and the interest was paid and two renewals made on the $5,000 note after the transfer to appellee, and the renewals of the latter note taken in the name of the appellee, the last time without security. On January 12, 1910, James A. Cunningham died, and on February 11, 1911, the said two notes together with accrued interest were filed as' a claim against the estate of said James A. Cunningham.

It is contended by the appellants that these claims cannot be successfully prosecuted in the name of the appellee, because, it is said, the notes in question* had been charged off of the ‘assets of appellee’s books, and placed in the hands of a trustee, with an agreement between the stockholders and the board of directors of appellee; that collections as made by the trustee should be paid to said stockholders, as the individual property of such stockholders, and that the appellee has no interest in said claims.

This contention cannot be maintained for the reason that the claims in question were held and possessed by appellee and by it filed as a claim against the estate of Mr. Cunningham, on February 11, 1911, while the agreement between the board of directors and the stockholders of appellee, under which these and other notes were placed in the hands of a trustee for certain stockholders as individuals, was not entered into until March 20, 1911, more than thirty days after the claim had been filed.

We understand the law to be, that one who acquires title in a claim filed against an estate after the date of filing, may prosecute the same in the name of the party filing. So, if it be true that appelle has parted with its interest in the notes in question, that would not affect the rights of the subsequent purchaser to continue the prosecution of the claim in the name of the original owner. 14 Encyc. of PI. & Pr. 441.

As to the second contention of appellants that there is not sufficient evidence in the record to show that Hamilton & Cunningham ever owned or transferred the $8,800 note, we cannot agree. While there is conflict in the evidence, in which Mr. Hamilton, in part, disagrees with the evidence offered in support of this ownership and transfer of the note in question, yet, he admits that the note came to his knowledge and that he endorsed it by writing the name of Hamilton & Cunningham across the back of the note, all of the facts and circumstances in proof in this record, aside from the evidence of Mr. Hamilton, supports the contention of the appellee as to this note, and we are of the opinion that this was one of the negotiable instruments' transferred and guarantied by the firm of Hamilton & Cunningham, and that the same has not been paid or satisfactorily secured.

As to the $5,000 note in question, we entertain a different view after a full investigation of the proof in this record.

It appears that this note was given to Hamilton & Cunningham by the Hoopeston Malleable Iron Works, by F. A. Smith, secretary and treasurer and by S. D. Porter, and bears date of March 23, 1909. This note was indorsed personally by said F. A. Smith and S. D. Porter, on the back, and was transferred to the appellee and indorsed on the back by Hamilton & Cunningham. It was renewed on July 27, 1909, and again renewed on November 27, 1909, but the renewal was taken in the name of Hoopeston National Bank, appellee, and was signed by Hoopeston Malleable Iron Works, by. F. A. Smith, secretary and treasurer, and by S. D. Porter, president. No indorsement by Hamilton & Cunningham appears upon this note, and neither do the names of F. A. Smith and S. D. Porter appear thereon as indorsers, and there is nothing in this record to indicate that when this renewal was taken by appellee and the note registered among its assets, bearing number 896, it was not perfectly satisfied with the security.

It is contended by appellee that in this written assignment and guaranty it was not the duty of appellee’s discount committee or the officers of its bank, to make its objections to the sufficiency of the securities known to Hamilton & Cunningham.

Whatever may be said as to how the knowledge should be brought about, the agreement entered into provides, in effect, that such of the notes as are satisfactory to the discount committee acting for appellee should be accepted, and those not satisfactory as to security, should be paid by Hamilton & Cunningham, or further time arranged, within thirty days.

The action of the appellee in renewing this note in its own name, registering it in its own register and giving it a number in its register and omitting a portion of its security, to-wit: the personal indorsement of F. A. Smith and S. D. Porter, and making no complaint to either Hamilton or Cunningham, is, in effect, and in law, an acceptance of this note, and removes it from the list guarantied by the written contract of Hamilton and Cunningham, and Hamilton & Cunningham’s name not appearing upon the note as indorsers, it can not be chargeable to the estate of Mr. Cunningham.

Under the view we take of this cause, the $8,800 note should be allowed as a claim against the appellants. According to the indorsement on the said note the interest was paid thereon up to the 3rd day of January, 1910. The note provided for seven per cent interest. Therefore, the total amount due on said note at this time, with accrued interest thereon, amounts to the sum of $10,828.17; and as no good purpose could be accomplished by remanding the cause to the trial court, judgment will be entered in this court for that sum in favor of the appellee and against the appellant administrators, to be paid in due course.

The cost of appeal shall be taxed against appellee.

Judgment reversed, with final judgment in this court.

Reversed.


author: Mr. Justice Philbrick

text:
    J. C. Graff and John Schultz, Trading as J. C. Graff & Company, Defendants in Error, v. George Moench, Plaintiff in Error.
    1. Gaming—intention necessary to character of transaction. In an action for money alleged to have been loaned defendant, in determining whether the money was for gambling transactions on the market, as pleaded by defendant, it is necessary to determine whether there was an actual intention on the part of plaintiff and defendant to deliver, make payment for, and receive the commodities purchased and sold.
    2. Gaming—evidence. In an action for money alleged to have been ■ loaned defendant, where defendant pleads that no money was loaned but that the claim is for the loss on gambling deals made with plaintiffs, where the evidence shows that defendant gave orders for the purchase and sale of grain to plaintiffs who communicated them to another firm which executed them on the Board of Trade, that plaintiffs never made any attempt to deliver or any demand for payment of the market value of the various commodities, that defendant had no facilities for handling the commodities and that all of the transactions were settled upon the difference in market values, there is sufficient evidence to show they were gambling transactions for which plaintiffs cannot recover.
    3. Gaming—not a defense where gram is delivered. "Where defendant pleads that the money was for gambling transactions on the market, plaintiff is entitled to recover for grain which was actually delivered to defendant.
    Error to the Circuit Court of Schuyler county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 18, 1913.
    Rehearing denied May 16, 1913.
    B. O. Willard and L. A. Jarman, for plaintiff in error.
    Glass & Bottenberg and Chiperfield & Chipbrfield, for defendants in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

J. C. Graff and John Schultz, defendants in error, were partners and doing business under the firm name of J. C. Graff and Company. Their place of business was at Bushville; Graff resided at Bushville and Schultz at Beardstown. They were engaged in buying and selling grain and seed. Bushville is a town of about 2,300 inhabitants. Schultz was also a member of the firm of Schultz, Baujan and Company of Beards-town, who were in the grain and milling business, and Schultz was also a member of the Chicago Board of Trade. Moench began buying and selling grain through Graff and Company who communicated his orders for sale and purchase of grain to Schultz, Baujan and Company of Beardstown, and they forwarded the orders to a company doing business under the name of Bumsey and Company at Chicago, and it is claimed that Bumsey and Company executed the orders on the Board of Trade. Neither Schultz, Baujan and Company nor Bumsey and Company knew that Moench was interested in these trades, the accounts were all kept with Graff and Company and credits of losses and profits were kept by Graff and Company. Graff and Company claim that they did not receive any of the commissions made on these trades for Moench, but the evidence discloses that John Schultz who was a partner of Graff received one-half of the commissions charged by Bumsey and Company, and the deals were made through Graff and Company.

This action is brought by Graff and Company against Moench to recover $3,726.09 alleged to have been loaned to defendant by plaintiff. The defense presented is that the deals were gambling transactions and were so known to be by Graff and Company, that no money was loaned to defendant but that the claim is for the loss on gambling deals made with plaintiffs.

Defendants in error recovered a judgment against plaintiff in error for $3,726.09, to reverse which judgment this writ of error is prosecuted.

As a cause of reversal plaintiff in error insists that the evidence, discloses that the deals were had upon margins and were made in violation of the statute, and were gambling transactions, that there was no intention on the part of plaintiff in error or defendant in error that the deals should be consummated, by delivery of the commodities purchased or that the same were ever to be paid for; but that the deals were carried on entirely by payment of margins, and that all of the deals were closed out and all settlements made by differences between prices at the time when the deals were closed and when entered into.

Defendant in error, on the other hand, insists that there always was an intention to deliver, and to require payment for the commodity, and that defendants in error so informed plaintiff in error at the time they commenced their negotiations.

The only question to be determined in this case is whether or not the evidence discloses that there were gambling transactions, and to determine it, it is necessary to determine whether there was an actual intention on the part of plaintiff and defendant to deliver, make payment for, and receive the commodities purchased and sold. While the evidence discloses that defendants in error insist they informed plaintiff in error that they would deliver all of the stuff that he bought and would expect payment therefor, the fact that they did so inform him, if it is a fact, will determine the character of the transaction; the circumstances and conditions surrounding the parties together with the knowledge of these conditions and the manner in which the deals were conducted and closed must determine the question of the character of these transactions.

Defendants in error never made any attempt to deliver or never made any demand upon plaintiff in error for payment of the market value of the various commodities which were bought and sold upon his order. The record further discloses that all of the transactions had between them were settled and determined upon the difference in market values. Plaintiff in error was a farmer of moderate means, living near Rushville, he was forty-two years old. Graff, through whom he conducted his negotiations, was a resident of Rushville, about thirty-two years of age; they had known each other all their lives. Graff knew the financial condition and responsibility of plaintiff in error, he knew that plaintiff in error had no facilities for receiving or handling the commodities to the amounts of the purchases made by him through defendants in error. . They knew also that the deals they made for him if plaintiff in error was to be called upon to take and receive the commodity and pay for it, that the transactions frequently involved four or five times the financial worth of plaintiff in error, and that he had no facilities for receiving or handling these commodities and could not pay for them. Although defendants in error knew these conditions, they furnished the money to Eumsey and Company through Schultz, Baujan and Company. It was necessary for them to do so because Moench was not known to the parties through whom the deals were made; and yet they charged plaintiff in error no commissions and received nothing for their trouble and interest in his behalf, in lending him their financial credit, time and trouble in assisting him to carry on these transactions. In fact, they would have us believe that they were doing this as a matter of friendship. Part of the transactions made showed upon the books of Graff and Company a profit to plaintiff in error, but at the time the last deals were closed and the business transactions between them ceased, defendants in error claim that the amounts owned by plaintiff in error to them were for moneys loaned by them to him for the purpose of settling his deals upon the Board of Trade. Whatever the profits may have been to plaintiff in error by any of his transactions, they were all wiped out by losses, and the losses at the end of the deal exceeded the profits by the amount claimed by defendants in error. And the record discloses that plaintiff in error paid defendants in error various sums of money, from time to time, which were used as margins to hold these deals.

Defendants in error claim that this action is not brought for moneys lost by plaintiff in transactions made by them, but that the transactions were made by plaintiff in error upon the Board of Trade through defendants in error as his agent, and that having been made in defendants in error’s name they were responsible for the transactions and were compelled to pay these items, and that the money which they paid in this manner was loaned to plaintiff in error for the purpose of liquidating his accounts. They insist that the rule of law is that where a party is engaged in gambling transactions which are prohibited by the statute, and incurs losses by reason of his deals, where he borrows money after the losses have been had, for the purpose of settling the losses, that a person who loans him moneys for this purpose is entitled to recover the same although they knew at the time that the money loaned was to settle gambling obligations and that the transactions had by them with defendant in error fall within this rule of law. The evidence in this record does not disclose the conditions claimed by defendants in error, but that the transactions were made with defendants in error, that they were instrumental and assisted in making them and even on their contention that they loaned the money to settle his losses on these transactions, and if they were gambling transactions, then defendants in error do not fall within the rule attempted to be invoked by them and they cannot recover in this action.

It appears from this record that defendants in error knew the conditions of affairs and knew the position they were hable to get into by reason thereof and that at the very outset they undertook to protect themselves by informing plaintiff in error that they would deliver the goods; even if this- statement was made, it is so inconsistent when applied with all the surrounding circumstances and conditions and the character and amount of the trades that we cannot believe there was any intention to ever have carried them out as stated: the facts disclose that it was impossible to so carry them out, and defendants in error knew it. And we are of the opinion from this record and hold that all of the transactions made by plaintiff in error with defendants in error which were transmitted to Schultz, Baujan and Company and forwarded to Bumsey and Company in Chicago were gambling transactions and that they fell within the rule laid down in First Nat. Bank v. Miller, 235 Ill. 135, affirming 139 Ill. App. 608, and Bartlett v. Slusher, 215 Ill. 348, and that defendants in error are not entitled to recover for any money lost by plaintiff in error in those deals.

The record does disclose, however, that at the time of the commencement of this action plaintiff in error had bought from defendants in error at their place of business in Rushville several minor items, including bran, corn, flour and oats, which were delivered to him in the regular course of business by defendants in error in their dealing in grain and seed at Rushville, and for these they are entitled to recover.

We find that the judgment in this case is so clearly and manifestly against the weight of the evidence and contrary to the law that the judgment cannot be sustained. The judgment is, therefore, reversed and the cause remanded.

Reversed cmd remanded.