text:
    Mary Hoff, Plaintiff in Error, v. Frank Parmelee Company, Defendant in Error.
    Gen. No. 13,746.
    1. Municipal Court Act—what not intent of. The Municipal Court Act was not intended to cut off. the right of a plaintiff to a review of a judgment of that court where the trial judge has, at close of the plaintiff’s proofs, directed a verdict against him.
    2. Bailments—what establishes liability for loss of baggage. Held, that the evidence in this case established prima facie that the defendant express company acquired possession of the plaintiff’s trunk without authority, and that the loss of property contained therein resulted to the plaintiff during the period of such unlawful possession.
    3. Damages—upon whom burden rests to establish value of promissory note. Upon claim for the physical loss of a promissory note through the neglect of a carrier, the burden is not upon the plaintiff in the first instance to prove the actual value of such .note —its face value is its actual value until the contrary is established.
    Tort. Error to the Municipal Court of Chicago; the Hon. Fbeemax K. Blake, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 6, 1908.
    Malcolm B. Sterret, for plaintiff in error.
    Sheriff, Dent, Dobyns & Freeman, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff commenced this action in the Municipal Court of Chicago to recover the value of a muff and a promissory note claimed by her to have been abstracted from her trunk found in the possession of defendant.

The trial in the Municipal Court was with a jury, whom the court, on motion of defendant, instructed to find a verdict in its favor, upon the return of which a judgment of nil capiat was entered, and this writ of error is prosecuted to reverse that judgment.

Defendant opines that the Municipal Court Act was intended to cut off the right of a plaintiff to a review of the judgment of that court where the trial judge views the plaintiff’s case, at the close of such plaintiff’s proofs, as so lacking in merit as not to justify, in his judgment, its submission for the determination of the jury; that the Municipal Court Act was intended to cut off the right of review in such apparently unmeritorious causes. We are not at all impressed with the reasonableness of logic of such an argument. An examination of the Act does not, even inferentially or by construction,, show such legislative intent; and if it did, we should doubt the propriety or enf orcibility of such a law. Here is a plaintiff, for example, making a claim amounting to more than $800. If the claim is a valid or enforcible one at law, and the trial judge has erred in his judgment in holding against its validity, has not such plaintiff been deprived of a very substantial legal right, and has not the defendant escaped liability for a just obligation? Surely, this proposition would seem so plain as not to call for further amplification. To hold otherwise would be tantamount to conceding so-called divine power to the Municipal Court judge, for to err is human, and we have yet to understand that judges are not human, and so being are just as liable as the rest of humanity to err in their opinions and judgments. At the risk of inviting many causes into this tribunal, we must not disregard the plain right of the litigant by denying him a review in this court in cases of the character of the one under discussion. The spirit of our laws demands it. The provision of the Municipal Court Act neither curtails nor denies that right.

The record is lawfully before us on the writ of error sued out in accord with the directions of the Municipal Court Act, and demands our review.

Defendant proceeds, we think, on a misconception of the situation of the parties and their relation to each other. There is no contractual relationship existing between them. They do not sustain the relation to each other of shipper and carrier. If they did, the cases cited and the argument made by counsel for defendant would be conclusive against the claim of plaintiff; as they do not, neither the authorities nor argument of defendant are applicable or of a controlling nature.

The trunk of plaintiff is found in the possession of defendant. That possession being without authority and unexplained, is unlawful. Moreover, when plaintiff found the trunk on the premises of defendant, she stated in the presence of one of defendant’s servants that it had been “ransacked.” This servant said in reply to that statement, “Yes, I ransacked your trunk.” In the absence of contervailing evidence these facts constitute prima facie proof that defendant was unlawfully in the possession of the trunk of plaintiff, and that the trunk was “ransacked” by its servant. This made it of the essence of a defense to the claim that a muff and note of $800 had been abstracted or lost from the trunk, for defendant to prove facts sufficient in law to exculpate it from the liability imputable to it from plaintiff’s proof of such loss. The uncontradicted evidence in the record is, that plaintiff had in the trunk a muff which cost her $25 and a promissory note for $800, which were not in the trunk when recovered from defendant. This being established by the proof, plaintiff was entitled to recover from defendant the damages sustained by her by reason of the loss of these articles.

The giving of the peremptory instruction was vital error. The testimony of plaintiff and her witnesses, uncontradicted as it stood in the record, was ample to support a verdict in her favor. The motion to instruct the jury to find a verdict for defendant at the close of plaintiff’s proof had the effect in law of admitting the verity of such testimony, with all reasonable inferences to be drawn from it. Frazier v. Howe, 106 Ill. 573.

Fairfax v. N. Y. Cent. R. R., 73 N. Y. 167, is a case similar to the one at bar, because there the railroad, as the Parmelee Company here, obtained possession of the baggage in dispute without the consent of the owner, and the court there say—and their language is equally as applicable here—“Plaintiff demanded his baggage, and that cast upon the defendant the burden of accounting for it in some way. It was bound to show that it had disappeared from its baggage room without its fault. It was either stolen or misdelivered, and it was under all the circumstances for the jury to determine which."

Considerable stress is laid upon the fact that there is no proof of the intrinsic value of the $800 note said to have been abstracted from the trunk. In the first instance, no such proof was required. It was left for defendant to maintain by evidence that the note was not worth its face value. Am. Ex. Co. v. Parsons, 44 Ill. 312, is controlling on this point. There the court say: “In this case the note was received by an agent to collect for a compensation, and through their carelessness the note was lost, and they are prima facie liable for the face of the note. By its loss the holder is deprived of the evidence of his debt, and he should not be required to be at the trouble and expense of supplying it; that should fall upon the party whose wrong has produced the injury. ’ ’ This being the rule in relation to a lost note lawfully in the possession of the party chargeable with negligence for its loss, it is certainly not less controlling as against one unlawfully in possession of a note at the time of its loss. In the condition of the proof defendant was liable for the face value of the note extracted from plaintiff’s trunk, with-’ out any preliminary proof of its actual worth. From anything which the evidence discloses to the contrary, the possession of plaintiff’s trunk by defendant and the action of its servants in relation thereto were tortious; the burden of rebutting all of which the law cast upon defendant, and before it can be relieved of the liability thus imputable to it, such facts and circumstances must be adduced by proof sufficient to overcome and rebut the facts from which defendant’s liability is established.

For the error of the Municipal Court in directing a verdict in favor of defendant at the close of plaintiff’s proof, its judgment is reversed and the cause remanded for a new trial in accord with the views here expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    The Pine Tree Lumber Company, Defendant in Error, v. The Central Stock & Grain Exchange as Garnishee, and A. E. Stichtenoth as Defendant, Plaintiffs in Error.
    Gen. No. 13,752.
    1. Jurisdiction—what presumptions indulged in favor of. Every presumption will be indulged in favor of the regularity of the proceedings in the trial court and of its jurisdiction of the parties and the subject-matter of the suit, in the absence of a bill of exceptions, unless it is clearly manifest from the common law record that the court was without jurisdiction.
    2. Attachment—when notice by publication sufficient. A notice by publication is sufficient to confer jurisdiction if all the material facts concerning the purpose of the suit are set forth.
    3. Attachment—when notice -by publication not defective. A notice by publication in an attachment suit is not defective in failing in its title to mention the garnishee, or in failing to describe the property taken under the writ of attachment.
    4. Service of process—when certificate that of corporation publisher. A certificate of publication in form as follows:
    “In testimony whereof the United States Corporation Bureau has caused this certificate to be signed by its secretary, and the corporation seal thereof to be affixed this 8th day of February, A. D. 1900.
    Frederick A. Rowe,
    [Corporate Seal.] Secretary,”
    is a certificate of the corporation, and not of the individual signing as secretary.
    5. Garnishment—iohen traverse of answer not defective. The traverse of the answer of a garnishee need not be verified.
    6. Garnishment—propriety of joint trial of main and collateral issues.. The issues as between the plaintiff and defendant in attachment and as between the plaintiff and the garnishee may properly be submitted to and determined by the same jury at the same time.
    7. Practice—when objection comes too late. An objection to the failure to verify a plea comes too late when first raised on appeal.
    8. Practice—iohen notice of proceedings not essential. Notice of the filing of the traverse to an answer of a garnishee need not be given.
    9. Transcript of record—when signed verdict cannot be considered on review. In the absence of a bill of exceptions certifying the same, a signed verdict cannot be considered on review.
    10. Amendments and jeofails—when notice of motion for leave to amend not essential. A notice of an application for leave to amend need not be given to a defendant in. default, regardless of whether he was served by ordinary process or by publication.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.
    Jacob J. Kern, John A. Brown and O’Bryan & Marshall, for plaintiffs in error.

      Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause is before the court for review on a writ of error to the Circuit Court in an effort to reverse a judgment of that court rendered in a suit in assumpsit with an attachment in aid. The judgment against the defendant is for $3,586.39, and that against the garnishee in favor of defendant for $11,714.37.

The trial was before the court and jury and was ex parte, neither the garnishee nor defendant appearing by counsel or talcing any part in the trial of the case.

The several parties will, for brevity, be referred to in this opinion respectively as plaintiff, defendant and garnishee.

It will be noted, in passing, that no bill of exceptions is found in the record, and that neither a motion for a new trial nor in arrest of judgment was made in the trial court.

Nothing but the common law record being here presented for our review, the law does not permit us to take cognizance of matters not disclosed by that record.

The errors assigned and argued challenge the jurisdiction of the trial court to enter the judgment. It is insisted that the judgment is void.

Every presumption will be indulged in favor of the regularity of the proceedings in the trial court and of its jurisdiction of the parties and the subject-matter of the suit, in the absence of a bill of exceptions, unless it is clearly manifest from the common law record that the court was without jurisdiction. The decisions of this court and of the Supreme Court of the state are both numerous and uniform in sustaining this proposition; Mullen v. The People, 138 Ill. 606; I. C. R. R. v. Town of Calumet, 151 ibid. 512; McKillip v. Bonynge, 86 Ill. App. 619; Yaeger v. City of Henry, 39 ibid. 21.

It is first contended that the publication notice to the defendant was not in compliance with the statute, in that it did not mention the garnishee in its title or describe the property taken under the writ of attachment sued out in aid of the assumpsit suit.

An examination of the publication notice found in the record shows that it satisfies every material requirement of the statute. The purpose of notice by publication is to bring in the defendant to defend the suit brought against her as defendant. With this the g’arnishee had no concern. It was brought in by personal service of process, in obedience to which it appeared and answered the interrogatories propounded to it by the plaintiff. The notice further shows the name of the court and the term at which process is returnable, and that a writ in attachment in aid of the suit at law had been sued out, that the amount of the claim was $2,804.89, that the attachment writ had been levied upon property described and set forth in the return of the sheriff upon the writ. All the material facts concerning the purpose of the suit were set forth in the notice, the full particulars in relation to which could be ascertained from an examination of the papers, process and record in the cause. This is all the law requires. The statute does not require the name of the garnishee to appear in the title of the cause in the publication notice to defendant, and it has been expressly held that a description of the attached property need not be set out in such notice.

In Lawver v. Langhans, 85 Ill. 138, it is held unnecessary to give any description of the property attached in the notice of publication; citing in support of this ruling Morris v. Trustees of Schools, 15 Ill. 266. Firebaugh v. Hall, 63 Ill. 81, is in no way in conflict with these decisions. The facts in the latter ease, as well as the nature of the action and the course of procedure, are so variant from those in the case at bar as to make it inapplicable.

It is next insisted that the certificate of publication of the notice is insufficient and not in compliance with section 1, chapter 100, R. S. The notice was inserted in the “National Corporation Reporter,” the publisher of which is the “United States Corporation Bureau.” The certificate of publication is in no wise controverted either as to form or substance except as to its certifying terminal clause, which is in these words:

_ “In testimony whereof the United States Corporation Bureau has caused this certificate to be signed by its Secretary and the corporation seal thereof to be affixed this 8th day of February, A. D. 1900.

Frederick A. Rowe,

(Corporate Seal) Secretary.”

We hold this to be a certificate of the publisher audits act by its secretary Counsel for garnishee concede that if Rowe had signed the certificate with the name of the publisher by himself as its secretary, “it would have complied with the law. ’ ’ The certificate in fact and by legal intendment is the certificate of the United States Corporation Bureau by Rowe, its secretary. The seal is that of the corporation, and it is appended to the certificate and is an act of the corporation publisher by Rowe, its secretary. The act of Rowe, the secretary is, in contemplation of law, the act of the corporation publisher.

Again, it is contended that the traverse filed by plaintiff to the answer of the garnishee should have been under oath. The statute contains no direction or provision for verifying such traverse by the oath of any person. The proceeding in garnishment is a statutory one, and while every material provision must be substantially complied with, nothing is to be read into the act amplifying it by legal construction. However, were the matter at all pertinent, the absence of any objection made in the trial court would preclude its being availed of on review.

It is said that the claim of defendant against the garnishee was for unliquidated damages, and therefore not the subject of garnishment. A complete and irrefutable reply to this contention is, that in the absence of a bill of exceptions we cannot be informed as to whether the claim between the parties was one for unliquidated damages or not. The record of the judgment being in due form, the evidential facts upon which it is founded will be presumed to have been sufficient to sustain it.

We do not find any statute requiring notice to be given to the garnishee of the filing of a traverse to the answer of a garnishee. It is a familiar rule that when a party is once in court, either by service of process or voluntary appearance, the jurisdiction of the court over him continues until the final disposition of the cause, and he is bound in the meantime to take notice of every step taken in the cause and of every pleading-filed in it. Niehoff v. The People, 171 Ill. 243.

Counsel argue that the verdict is not responsive to the issues, and they refer to the paper writing said to be the verdict signed by the jury. Even if this contention was supported by the verdict of the jury, or any other paper not found in the record, it would be of no avail. We cannot examine it; it is not before us, and with it we have no concern. Our review is confined to the verdict and judgment appearing in the record. This is in due form and unassailable. Inferential!? at least this is conceded from the fact that it is only challenged on the ground that it is unsupported by the jury’s signed verdict. As we are unable to take that verdict into view in determining its responsiveness or not to the issued joined, we must have recourse to the verdict found in the record on which to base our- judgment. This is what we find:

“We, the jury, assess the plaintiff’s damages against the defendant at the sum of three thousand five hundred and eighty-six dollars and thirty-nine cents; and we find that at the time of service on said garnishee Central Stock & Grain Exchange there was due and owing from said garnishee to the defendant herein the sum of eleven thousand seven hundred and fourteen dollars and thirty-seven cents.”

This responds in every essential to the issues as they then existed between the plaintiff, the defendant and the garnishee.

But great stress is laid upon the proposition that the issues joined against the garnishee could not be submitted to the same jury assessing damages against the defaulted defendant, and that so doing in this case was in direct contravention of the provision of the garnishee statute that “no final judgment shall be entered against the garnishee in any attachment proceedings until the plaintiff shall have recovered a judgment against the defendant in such attachment”; and Fry v. Radzinski, 219 Ill. 526, is cited as a sustaining authority. We do not so regard it. The.question here sought to be raised was not involved in the Radzinski case. That was a bill in equity seeking to enjoin a judgment at law in an attachment suit, where the judgment against the garnishee was rendered three years after the judgment against the defendant debtor. It was urged by complainant that he had no knowledge of the attachment proceeding until after judgment against the defendant debtor, and therefore no opportunity to interplead for the fund in the hands of the garnishee. But the court held the contention not well taken because complainant had no knowledge of the attachment proceeding until after judgment against the defendant, but" had such knowledge prior to final judgment against the garnishee. The court barred the claim and dismissed the bill upon demurrer because complainant, after knowledge of the attachment proceeding, with ample time to interplead for the fund before final judgment against the garnishee, failed to assert his claim by interpleading for it, as provided by the garnishee act. True it is, the court did say, in its opinion, as quoted by counsel, “therefore the judgment against the garnishee is necessarily recovered subsequently to the rendition of the judgment against the attached debtor”; still that question was not involved, and such language is clearly obiter. But were it otherwise, it by no means necessarily follows that the court intended to hold that the issues could not he submitted to the jury at the same time and included in the same verdict and judgment. That no final judgment shall be rendered against a garnishee until judgment has been rendered against the defendant, simply means that sueli judgment against the garnishee shall not precede the judgment against the defendant. No violation of this statutory provision occurred in the judgment here. The findings in the verdict and the recitations of the judgment clearly indicate that the liability of defendant was chronologically first determined and fixed, and then the liability of the garnishee to the defendant adjudicated and the amount due plaintiff carved out of it by making that amount payable for the use of the plaintiff. The statute does not contemplate two trials before different juries and at separate intervals of time, where, as in the case at bar, issues were joined on the answer of the garnishee.

It has been the uniform practice in this state to submit dual issues to the same jury in attachment and other proceedings. In Hawkins v. Albright, 70 Ill. 87, which was an attachment suit in which two issues were involved, the court say: “It is also objected that the judgment should have been special, finding separately on each issue instead of generally on all. * * * As the whole indicates all the parts, there is no difficulty in determining what the finding is on each material issue when it is known what it is on all. ’ ’

The same question here involved was decided in Frankland v. Johnson, 46 Ill. App. 430. The issues were dual—the indebtedness and the right to maintain the attachment. The cause on these issues first proceeded to trial with a jury. In the midst of the trial, by agreement of counsel, the jury was dispensed with and the cause proceeded to judgment before the court. This court said, the late Mr. Justice Shepard voicing its opinion: “There is no support to the contention of counsel that Sec. 27 of the Attachment Act requires a separate trial of the right to attach; and the court might properly have refused to try the cause by piecemeal. ’ ’ The judgment of this court was affirmed on further review, as appears from 147 Ill. 520, although this point was not discussed in the opinion. Italian Swiss Ag. Colony. v. Pease, 194 Ill. 98; Page v. Dillon, 61 Ill. App. 282.

To the objection that the pleadings could not be amended without notice to defendant after default, there are two conclusive answers. First, the statute permits such an amendment; and, second, if it did not, then the amendment made, which simply raised the amount of the ad damnum, left the pleadings as they were before amendment. This amendment was merely formal. The amount of the claim set forth in the affidavit and notice of attachment remained the same, the purpose of the amendment being to enable plaintiff to recover interest upon the claim from the time of commencing the suit until the date of the judgment. This amendment in no wise injected a new cause or action or changed the nature of the original demand, as was the case in Gilbert v. Am. Trust & Savings Bank, 118 Ill. App. 678. On amendment in a matter of form a defaulted defendant is not entitled to notice. Niehoff v. People, 171 Ill. 243. The rule is the same whether the service of process be personal or by publication. Vairin v. Edmonson, 10 Ill. 270; Smith v. Clinton, 13 Ill. App. 572.

Irrespective of the amount of the ad damnum, sec. 35, chap. 11, R. S., authorizes a judgment for the amount claimed due in the affidavit with interest accruing to the time of the judgment. Empire Car Roofing Co. v. Macey, 115 Ill. 390.

A computation of interest upon the amount claimed in the affidavit and notice, at the statutory rate, demonstrates that the amount of the judgment is but slightly larger than such computation. Had we power to review the record in this regard, which, in the absence of any evidence as to what the items were upon which the judgment is founded, we have not, the application of the maxim de minimis non curat lex would be a sufficient curative.

The record being without reversible error, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The Central Stock & Grain Exchange, Appellant, v. The Pine Tree Lumber Company, a corporation, Appellee.
    Gen. No. 13,866.
    1. Injunction—when does not lie to restrain collection of judgment. ■ An injunction will not be granted restraining the collection of a judgment at law where it appears that the relief sought by the bill could have been obtained from the trial judge in the action at law.
    2. Injunctions—appropriate form of bond upon restraining collection of. A bond given upon the granting of an injunction restraining the collection of a judgment should be conditioned for the payment of the judgment entered and costs.
    3. Judgment—when equity will not relieve against. A court of equity will not grant relief from a judgment at law merely because of errors which have intervened in the progress of the cause which resulted in the judgment.

      4. Judgment—who cannot question propriety of, in favor of dissolved corporation. A garnishee seeking by hill in equity to obtain relief from a judgment in attachment cannot complain that the judgment was rendered in favor of a corporation which had been legally dissolved more than two years prior to the institution of the suit in which such judgment was rendered.
    5. Laches—when sufficient to bar relief against judgment at law. A delay of two years will bar relief from a judgment at law where such delay resulted from the belief of the defendant to the judgment that he was immune from the collection thereof.
    6. Corporations—within what time may institute actions after dissolution. Corporations are allowed two years after their legal dissolution to institute actions upon claims in their favor.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.

      Keen & Brown and O’Bryan & Marshall, for appellant.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.'

Complainant filed its bill of complaint to enjoin the collection of a judgment at law entered in the Circuit Court of Cook county in favor of the defendant, which judgment on writ of error in ease general number 13752 has been affirmed by an opinion handed down herewith, to which opinion we refer for the facts without here again repeating them. (Ante, p. 462.)

In the common law case we have determined that the affidavit and publication notice were sufficient in matter and form, as also the certification of the publication of the notice, to clothe the court with jurisdiction to render judgment against the defendant A. E. Stichtenoth, and that the traverse of the answer of complainant as garnishee did not require any verification; that notice to complainant of its filing was unnecessary, that being a pleading of which the law required it to take notice, such notice being imputable to it; and that the judgment in every respect was in due form, conforming to legal precedent in like cases.

A court of .equity does not sit in review of judgments at law. It only gives relief in extreme cases, such as where a judgment is obtained by fraudulent means, or some part of it is so unconscionable that it would be tantamount to a fraud in the plaintiff to insist on its enforcement. The record shows that the counsel for complainant had knowledge of the trial and of the entry of the judgment immediately after the judgment was entered; that they knew the case was on the call of the trial judge the day of the trial, and that they attended court watching the progress of the call; that after the judgment was entered, and before plaintiff’s counsel had left the bar of the court, counsel for complainant on coming into the court room was informed as to what had taken place and of the fact that a judgment had been rendered against their client, whereupon they interviewed the trial judge, presumably in his chambers, in relation to the happenings in the cause, and yet took no steps seeking to set aside the judgment; neither did they make a motion for a new trial or in arrest of judgment, or pray an appeal. In no way did they call in question the regularity of the actions of the trial court or dispute the verities of the judgment. No bill of exceptions was tendered to preserve the evidential facts upon which the court and jury acted in arriving at the conclusion reached by them.

Complainant, if it had acted promptly and in accord with practice and precedent, could have obtained from the trial court as ample relief as a court of equity could afford. In other words, the relief sought by the bill could have been obtained from the trial judge if application had been made to him in apt time and sufficient facts warranting the granting of such relief made to appear to that tribunal.

The cases of Chicago Waifs Mission v. Excelsior Electric Co., 44 Ill. App. 425; Gibbons v. Bressler, 61 Ill. 110; Parker v. Singer Co., 9 Ill. App. 386; Calman v. Stuckart, 70 ibid. 310; Sumner v. Village of Milford, 214 Ill. 388, and Young v. Deneen, 280 ibid. 350, are all instructive on the refusal of courts of equity to review the judgments of courts of law, where errors claimed to exist might be remedied by appeal or writ of error. Courts of equity will never review the judgments of a common law court where a party applying to it for relief has failed, when the opportunity was within reach, to make and argue a motion for a new trial. It is of the essence of equity jurisdiction that when the common law courts have once been appealed to, the remedy there obtainable must be exhausted before a court of conscience will assume jurisdiction to grant relief which the common law courts have jurisdiction to afford if invoked so to do. By section 24, chapter 62, R. S., the court is given equitable powers in relation to the rights of parties involved in property the subject of garnishee proceedings. Allen v. Continental Ins. Co., 97 Ill. App. 164; Lewis v. Firemen’s Ins. Co., 67 ibid. 195; Alen v. Smith, 72 Ill. 331; Smith v. Powell, 50 ibid. 21; Spraker v. Bartlett, 73 Ill. App. 522; Richardson v. Prevo, 1 Breese, 216.

The common law court, in virtue of the power thus invested by the statute, could have afforded complainant all the equitable relief obtainable from a court of equity in the exercise of its general equitable powers, if it had been moved so to do in apt time.

Waiving all other questions in the case, an examination of the proofs conclusively demonstrates that complainant has no standing in a court of equity justifying that court in relieving it from the obligation imposed by the verities of the judgment obtained at law, or in interposing its arm to stay its enforcement.

A court of equity will grant relief against a judgment at law where such judgment has been procured through fraud, mistake, or by accident. To these three grounds relief in equity is limited. No aid will be extended merely for errors intervening in the progress of the cause or entry of the judgment. W. C. St. Ry. Co. v. Stoltzenfeld, 100 Ill. App. 142; Calman v. Stuckart, 70 ibid. 310; Gibbons v. Bressler, 61 Ill. 110; Palmer v. Bethard, 66 ibid. 529; Ames v. Snider, 55 ibid. 498.

The record indisputably shows the following facts: That complainant was served with process in the attachment proceeding in aid of the assumpsit suit against A. E. Stiehtenoth as garnishee; that in response to such service it appeared by counsel; that complainant subsequently appeared and answered the interrogatories propounded to it by plaintiff; that while complainant was not entitled to receive notice of the filing of the traverse to its answer as garnishee, yet it satisfactorily appears from the proofs that it had actual knowledge of the filing, and thereafter not only knew that issue had thus been joined upon its answer, but acted in accord with such condition. The failure to file the traverse to the answer at an earlier time is readily apparent. The litigation in the Federal court between Stichtenoth and complainant injected an element of uncertainty as to whether or not complainant was indebted to Stichtenoth. "When that question was determined and the amount fixed by the judgment of the Federal Court, plaintiff was thereby apprised of the amount of the indebtedness, and could with certainty and intelligently have interposed its traverse to complainant’s answer as garnishee. An attachment suit of the Merchants’ National Bank of Cincinnati pending at the time of the filing of the answer, in which complainant had also been served as a garnishee, had in the meantime been disposed of, leaving the plaintiff alone in its claim against complainant for moneys due from it to Stichtenoth. Pending these delays depositions of some magnitude had been taken, in which complainant was represented by counsel. "On September 22, 1902, by the stipulation of the parties, complainant’s then and present attorneys signing the stipulation for it, the common law cause was continued. The cause was again placed upon the trial calendar on notice to complainant’s attorneys, and as we have heretofore stated, they had actual notice of the case being on the call the day it was tried and judgment entered, both before and after the conclusion of the proceedings. Yet, knowing of the finality of such proceedings, no effort was made in behalf of complainant to disturb them. Counsel have argued that the delay of some three years subsequent to the filing of the answer to the interrrogatories propounded to it as garnishee, before the traverse to such answer was filed, operated as an abandonment of the cause as to the garnishee, and that complainant had a right so to regard such long-continued delay, at least until service of notice that such traverse had been filed. "We do not feel called upon to decide what would be the effect of such long-continued delay in a case where a party did not have actual notice of the filing of a traverse before proceeding to trial. It is sufficient to say that such question cannot arise here, because complainant had actual notice, both before and after the trial of the issues found in the cause on the traverse, so that whatever defect there may have been in such procedure, it was within the power of the trial judge to supply a corrective if moved so to do.

The reason why steps were not taken to avoid the judgment against complainant as garnishee until the filing of the bill in this case, is perfectly plain from this record. Complainant, by its own action, ceased to have any corporate existence after June 4, 1902. On July 7,1905, the date of the judgment, complainant had no corporate existence, and had no visible assets. It considered itself immune from final process. But the fraudulent conveyance of its assets to the Hammond Realty Company and the Hammond Elevator Company of Hammond, Indiana, was exposed by a proceeding in the Circuit Court of Lake county, Indiana, and the judgment, the collection of which is now sought to be enjoined, was established as a claim against the Hammond Elevator Company, and a judgment procured against the latter for the amount due on the judgment here attacked. Under these circumstances laches is imputable to complainant in waiting nearly two years before moving to avoid the judgment, in verity of which a court of a sister state has pronounced judgment, enabling the plaintiff to enforce its collection. The laches here appearing is sufficient to bar complainant from any relief in a court of equity. Manufacturers Paper Co. v. Lindblom, 68 Ill. App. 539.

The right of complainant to maintain any action is also challenged by appellee. At the time of filing its bill complainant had been officially dead more than four years. Its final act of dissolution occurred June 4, 1902, and the bill was not filed until February 19, 1907. Section 10, chapter 32, R. S., provides that “All corporations under this law, whose powers have expired by limitation or otherwise, shall continue their corporate capacity during the term of two years, for the purpose only of collecting debts due said corporation and selling and conveying the property and effects thereof.”

Section 12 of the same act provides further that “The dissolution for any cause whatever of any corporation created as aforesaid shall not take away or impair any remedy against such corporation, its stockholders or officers, for any liability incurred previous to its dissolution.”

Section 10 is clearly a limitation upon the time given to corporations by the statute to settle up their affairs, and while it has been decided that a dissolved corporation may prosecute an appeal or sue out a writ of error after the lapse of such two year limitation, such holding is grounded upon the theory that such appeal or writ of error is but a continuation of the action in its original form, and therefore for the purposes of review is not to be considered as an original proceeding, but treated in point of time as relating back to the date of the commencement of the action sought to be reviewed. In this ease, however, such reasoning has no analogy. The bill when filed was an entirely new and independent proceeding, and had no retroactive effect upon the proceedings in the common law court.

Section 12 is explanatory of the effect of section 10, so far as it might be held to have any bearing upon the rights of claimants; so that neither by construction nor analogy should the limitation as to time given the corporation in which to settle its affairs after dissolution be extended to include the rights of claimants, which are not affected by the fact of dissolution.

Tolcott Stone Co. v. Hutchinson, 176 Ill. 48, seems to pass upon the effect of both sections in their bearing upon the rights of the dissolved corporation and its creditors. As to corporations, they are held to be limited to the two year period in which to take any affirmative action by suit in settling their affairs. Under section 10 the rights of creditors are by construction held to be continued undisturbed by the fact of dissolution, and environed for enforcement solely by the general limitation statutes. However, if we are wrong in our interpretation of this statute, still for other reasons herein assigned, the decree below must be affirmed.

The judgment sought to be enjoined was founded on a judgment against complainant in favor of one E. A. Stichtenoth, the debtor of appellee and the defendant in that suit. The judgment debtor, Stichtenoth, is not here complaining. She is not a party to the bill. It is our judgment that complainant, in the condition we find the record, has no cause to complain nor right to question the accuracy of the judgment, as the amount of its declared indebtedness to appellee’s debtor largely exceeds her debt to appellee.

The court say in Empire Car Roofing Co. v. Macey, 115 Ill. 390: “It is contended that it is the right and duty of the garnishee to inquire into the validity and regularity of the proceedings in the attachment ease. If the proceedings are void, they may be attacked by the garnishee; but if the court had jurisdiction, its errors and irregularities can only be called in question by the defendant in the original attachment, in a direct proceeding. Pierce v. Carlton, 12 Ill. 358. Here the court had jurisdiction and the judgment was not void, and if errors intervened they cannot be inquired into by the appellant, who was a garnishee in the Circuit Court.”

The injunctional bond given is not that provided by section 8, chapter 69, R. S. The condition should be to pay the judgment entered and costs. Williams v. Harper, 127 Ill. App. 619; Packer v. Roberts, 44 ibid. 232; Am. Fine Arts Co. v. Voight, 103 ibid. 659; Grossman v. Davis, 117 ibid. 354; Ebann v. Brown, 139 Ill. App. 213.

This defect, standing by itself, is sufficient to justify a dissolution of the injunction so improvidently granted. Complainant has no standing by this récord to maintain its bill, and the decree of the Superior Court is therefore affirmed.

Affirmed.


author: Mr. Justice Adams

text:
    Hibernian Banking Association, Trustee in Bankruptcy of Cooke-Rutledge Coal Co., Plaintiff in Error, v. Eckhart & Swan Milling Co., Defendant in Error.
    Gen. No. 13,509.
    Contracts—when continued existence of, inferred. A contract continues in force notwithstanding default, where the party against whom the default is made affirmatively so treats it. •
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.
    Statement by tie Court. Plaintiff in error was plaintiff, and defendant in error defendant, in the trial court. As all the transactions in question were between the Cooke-Butledge Coal Co. and the Eckhart & Swan Milling Co., the former will be referred to as plaintiff and the latter as defendant.
    The declaration consists of the common counts in assumpsit. The defendant pleaded the general issue and under it filed a notice of set-off, which notice was twice amended pending the trial. The cause was heard by the court without a jury. At the close of the evidence the plaintiff moved the court to strike out the defendant’s evidence and for a finding and judgment for the plaintiff, which motion the court overruled, and found the issues for the defendant and assessed the defendant’s damages at the sum of $1,885.34, and after overruling plaintiff’s motions for a new trial and in arrest of judgment rendered judgment on the finding.
    March 28, 1902, the following contract was executed by plaintiff and defendant:
    “Memorandum made this day, March 28, 1902, by and between the Cooke-Butledge Coal Company of Chicago, Illinois, of the first part, and Eckhart & Swan Milling Company, 377 Carroll Ave., of the second part; WlTNESSETH :
    That we, the undersigned agree to furnish and deliver to the Eckhart & Swan Milling Company, on board of cars at their station, Chicago, Ill., located on the Panhandle Bailroad, all the Screenings that they may need from the date hereof until April first, 1903, approximating the quantity of ten (10) cars per week, or as much as they may require, during the continuance of this contract.
    The second party to have the option of taking all of their requirements in whatever quantities or portion per day that they may need at the following price per ton of 2,000 lbs., viz: $1.28 per ton, F. O. B. cars their plant. Coal to be paid for on basis of weights of party of the second part.
    The coal furnished is to be of such grade as I have been furnishing you in the past, viz: the Vandalia District. Quality to be satisfactory to party of the second part.
    The party of the second part agrees to buy all their requirement of coal during the period hereinbefore specified.
    We will use every effort for prompt and satisfactory delivery of all cars, but will not hold ourselves responsible for delay of coal in transit, blockades, strikes, or any contingencies beyond our control.
    In case of strike, blockade, or other contingencies, the party of the first part agrees to furnish coal of equal quality.
    In witness, the parties herewith have set their hands and affixed their seals this day, 29th of March, 1902.
    Cooke-Butledge Coal Company,
    By Edward F. Cooke, Vice-Pres. and Gen. Mgr.
    Eckhart & Swan Milling Company,
    B. A. Eckhart, Prest.”
    Plaintiff, as its name indicates, is a dealer in coal, and has an office in the city of Chicago. The defendant has a flour mill in said city, in which it consumes about thirty tons of coal every twenty-four hours, except on Sundays, when it only uses about three or four tons, in order to keep steam up and the fire from going out. Defendant had vault room for only about 100 tons of coal. It appears from the evidence that during the latter part of November and. December, 1902, and January, 1903, the market price of soft coal increased very materially. Mr. Eckhart, defendant’s president and treasurer, testified that in the latter part of November and the early part of December, 1902, defendant was in fear of being obliged to shut down the mill for want of coal; that there was not enough in sight on defendant’s tracks or the tracks of the Panhandle Bail-road, by which road coal was consigned to defendant, to keep defendant’s plant in operation, and that when witness arrived at the mill about 6:45 o’clock in the morning of December 9, 1902, the mill was shut down for want of coal; that there were only about two or. three tons in the vaults, and that when he left the mill, a little before ten o’clock, it was still shut down.
    Hewitt, assistant manager for defendant, testified that during the latter part of November defendant’s bins were never full, and that December 2nd, 3rd, 4th and 5th, defendant had only from five to eight tons on hand, and that December 9th he called up Mr. Cooke, plaintiff’s assistant manager, and told him that defendant’s plant was shut down for want of coal, and that the plaintiff must supply coal.
    Baithel, defendant’s miller and superintendent, and Kucera, assistant manager of defendant, both testified that defendant’s mill was shut down December 9th for want of coal.
    December 4th defendant inclosed in a letter to plaintiff a statement of coal received from plaintiff from November 1st to November 15th, with check for same. The letter is as follows:

      "Gentlemen: We herewith hand you check covering the amount of statement enclosed. As per our conversation with you over phone, we are running very low on coal and must have some immediately. Kindly see to it that we are kept supplied. Do not fail to attend to this and oblige,” etc.

      -On the same day Mr. Cooke had a telephone conversation with Mr. Hewitt, in reference to which he testified that he said to Hewitt: “I am not able to give you screenings. We can’t get the stuff. I can give you three cars of mine run at $3.00 a ton. That is the only stuff I can get over the Panhandle, and Hewitt said he did not like mine run, that it was a little inconvenient, but to turn it over.”
    After December 4th the following correspondence occurred:
    Plaintiff to defendant:
    “December 6, 1902.
    “Gentlemen: We received your check and thank you very kindly for same.
    We note your paragraph regarding your telephone communication regarding how low you are running on coal, which we, of course, regret very deeply, but you have certainly ’phoned several of the coal men and found their situation was the same as ours and that we are not liable to blame at all, it lays wholly with the railroads. We would have been able to take care of you nicely if they had brought our coal to Chicago.
    We understand from Mr. Loomis, agent, they have an embargo on all shippers which misfortunately stops all fine coal coming to Chicago, as well as coarse which they are aiming at.
    We have shipped you three cars of mine run, which we paid $2.60 for and will render you bill for same.”
    , Defendant to plaintiff:
    “Dec. 9. 1902.
    We have taken the matter up with the Panhandle Eailway, of an embargo having been placed on coal coming here.
    They assure us there is not at present and has not been any embargo on coal coming into Chicago for our account. You are, therefore, in error when you say there has been an embargo placed against coal coming to Chicago for our account.
    You must see that you keep us supplied with coal as per contract. ’ ’
    Defendant to plaintiff:

      “Dec. 22, 1902.
    We have a contract entered into between yonr company and the Bckhart & Swan Milling Company, dated March 28, 1902, under which you are to keep us supplied with screenings until April 1, 1903. For some weeks now you have failed to keep us supplied as per your agreement, and have compelled us to buy coal from other parties in order to keep our plant in operation, although we have repeatedly called you up on the ’phone urging and requesting you to furnish us with screenings as per your contract. We are therefore again compelled to notify you that you must keep us supplied under the terms of the contract.”
    Plaintiff to defendant s
    “Dec. 23, 1902.
    We received your kind favor of the 22nd and have noted same fully and carefully. The only reply we have to make, gentlemen, is that the condition existing and has been for some time certainly was not.through the fault of the coal men. The contract entered into by your company and our office stated clearly that we are not to be held responsible when the railroads cannot bring the coal forward. We have done all in our power that any firm or shipper could do, and it is simply up to you to fortify yourself at every possible opportunity, as our other contracts which we hold are doing.
    There is not a firm in the city of Chicago today in the coal business that can get up and say they are fulfilling the contracts they have on their books. They have not got the coal to do it with, or getting it in sufficient quantities to enable them to do so. We have other contracts, for illustration, the People’s Gas Light & Coke Company, that are only too glad for us to go into the market and buy the coal, charge it up to them at cost purchased price quoted us that we keep them in coal, that it is all they ask for. We are doing this with you, and cannot stand any differential. The Panhandle is in the worst shape, we believe, of any road in Chicago. We are under an expense of $100.00 a month, which we pay a man who continually searches the Panhandle for coal and additional to this we have a man trying to buy up, but we cannot do it. We trust you will appreciate the position we are in, and use every effort to assist us until this scarcity is over with, which will undoubtedly be after the Holidays.
    We appreciate your patronage and have strived very hard to take care of you right, which we believe we have done up to the time this flurry took place. We remain.”
    Defendant to plaintiff:
    “Dec. 24, 1902.
    We are in receipt of your letter of the 23rd. We cannot understand the position you take in this matter. Ton have not furnished us with numbers of any cars of screenings shipped recently at all, and there is no blockade or strike on at present. The Panhandle is ready and willing to deliver all coal loaded by you to us. The trouble appears to be with you, for you are not billing us any coal, and not been doing so recently. This is certainly a violation of your contract, and which contract we expect you to carry out.
    Your failure to carry out your contract has compelled us in two or three instances to close down our plant, on account of not being supplied by you.
    You should see that we are supplied with screenings immediately.”
    In a letter of date December 30, 1902, from defendant to plaintiff, defendant calls plaintiff’s attention to the contract requiring plaintiff to furnish it' with screenings till April 1, 1903, and saying that plaintiff had failed to furnish screenings for four or five weeks; also stating that there was no strike or blockade of any kind, and that the Panhandle had informed defendant that it had not refused to receive screenings from plaintiff consigned to defendant, and again requesting plaintiff to forward immediately the usual quantity of coal per week.
    January 6, 1903, plaintiff wrote to defendant a letter containing the following:
    “We have worked and made it our policy to always have the good will of every patron we have on our books. There was only one thing for you to do when the situation which is now confronting us started in, was to say to us, ‘Get us some screenings from any road, make arrangements with the Panhandle for switching, go out and buy fifty cars if .necessary to get this amount, and keep us going. ’
    You must remember our contract is on Vandalia Screenings, but we have evidence that you have bought coal on another line and paid $2.50. If it was your intention to do what is right, you would have given us the privilege and we would have saved you a great deal of money, possible by buying for ourselves, as we would have been more interested in making a minimum cost for you than those who you went to, as they know you have a contract and they took advantage of you. If you want us to do what is right by you, you must treat us the same way, we want you to understand that if you are buying coal on the outside without consulting us and giving us the privilege of doing what is just with you, we will consider our contract cancelled. We remain.”
    January 7, 1903, defendant again wrote to plaintiff, complaining that plaintiff had failed to comply with its contract, and that plaintiff had not, for the last three or four weeks, furnished defendant with any coal, and stating that there was no strike at the Vandalia mine, nor any railroad blockade, and notifying plaintiff that the defendant would hold it responsible for any loss which it would sustain by reason of plaintiff’s failure to keep its contract. There is no evidence in the record of any strike at the Vandalia mine, or any railroad blockade. After December 4th or 5th plaintiff did not furnish defendant with any screenings, and did not, after December 10th, bill any coal of any ldnd to defendant.
    Hewitt testified that December 9th, when he called up Mr. Cooke on the telephone, and told him the mill was shut down, etc., Cooke said, “I have not got the coal and can’t get it. I have simply got to lay down,” and Mr. Hewitt said, “Mr. Cooke, we want you to fulfill your contract; you must supply us with coal,” and he said, “I cannot do it.”

      Mr. Cooke testified that what he said was that he could not do anything about the coal until he could make arrangement with the Illinois Central, and that defendant had broken its contract by buying from others, when it had an ample supply.
    Mr. Cooke was corroborated in respect to what he said by Mr. Schaeffer, plaintiff’s secretary, and by Mr. Rutledge, plaintiff’s president, but the latter says he did not hear all the conversation, and no one of the three directly contradicts Hewitt’s testimony.
    It seems from Mr. Cooke’s testimony that plaintiff’s contemplated arrangement with the Hlinois Central Co. fell through, because of that company’s switching charges. The coal shipped by plaintiff to defendant prior to December 5th, which was screenings, was billed at the contract price, $1.28 per ton, and that shipped after December 5th, which was mine run, was billed, some at $2.60 and some at $3.00 per ton, and defendant paid the freight charges on it, amounting to $235.85, for which it is entitled to credit, as per a stipulation between the. parties in evidence. After the receipt by defendant of plaintiff’s letter of December 6th, defendant purchased two cars of coal from O’Gear a, King & Co., which were delivered to it, one car January 2,1903, and one January 8, 1903; and also, December 8 and 9, 1902, ordered two cars of coal from Geo. G. Pope, which were received by it December 9th or 10th. After December 10th, when plaintiff ceased to supply defendant with' coal, the latter purchased its coal from other parties. The plaintiff, as heretofore stated, after it ceased to furnish defendant with screenings, furnished it with certain cars of mine run coal, which it billed to defendant at $2.60 and $3 per ton, and in the plaintiff’s original and first amended bill of particulars the coal is so charged; but on its second amended bill of particulars the mine run coal is charged at the contract price for screenings, namely, $1.28 per ton. The plaintiff’s claim is for coal consigned to defendant from October 15 to December 10, 1902, both dates inclusive, at the rate of $1.28 per ton, amounting to $578.80. Defendant purchased from parties other than defendant 3,739,300 pounds of coal, to supply its needs, for which it had to pay largely in excess of the contract price, the price ranging from $1.45 to $3 per ton, and its claim of set-off is the excess over the contract price which it had to pay for this coal plus $235.85 freight charges, which it paid on mine run coal shipped to it by plaintiff, and which last sum it is, by stipulation between the parties, entitled to be credited with. There is no evidence that defendant paid more than the market price for coal, or more than the plaintiff would have had to pay for the coal had it purchased it. Neither is there any dispute as to the correctness of the amount of the plaintiff’s bill for coal furnished to the defendant, or the correctness of the amount of the defendant’s claim of excess over the contract price paid by it for coal. Neither is it claimed by the plaintiff that the judgment is excessive, on the hypothesis that the defendant is entitled to recover on its notice of set-off.
    Charles E. Pope, for plaintiff in error.
    West, Eckhart & Taylor, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Counsel for plaintiff objects that the notice of set-off filed with the defendant’s plea as amended is insufficient, but merely refers us, without serious argument, to thirty objections made to the notice in the trial court. These objections were fully argued in the trial court and were overruled, and we concur in the ruling of that court. We think the notice amply sufficient to admit of evidence of defendant’s claim of set-off. We are of opinion, after a very careful consideration of the evidence, that the learned judge of the trial court was warranted by the evidence in finding that the plaintiff failed to perform its contract, and that the defendant, under the facts in evidence, had the rig’ht to purchase coal in the open market to meet the requirements of its plant. At least it cannot, as we think, be truly said that the finding is manifestly against the weight of the evidence. The evidence shows, without contradiction, that in the latter part of November and in December, 1902, and January, 1903, the market price of coal had materially advanced, so as to be much above the price fixed by the contract between the parties; and it was clearly the defendant’s interest to procure coal from the plaintiff under the contract between them, if possible. There was absolutely nothing to be gained by defendant by purchasing from other parties in the open market, unless compelled to do so by plaintiff’s failure to supply it with coal. On the contrary, by so doing it was necessary for it to pay a much higher price for the coal than if supplied with it by the plaintiff under the contract.

Plaintiff’s counsel contends that the defendant was first in default in the performance of its contract, and therefore not entitled to recover for plaintiff’s default, if any, either in a direct suit or by way of set-off. The basis of this claim is that defendant failed to pay for coal included in plaintiff’s amended bill of particulars, of the value of $578.80, at the contract price of $1.28 per ton. The plaintiff’s bill of particulars, the correctness of which is not questioned, shows coal .shipped by plaintiff to defendant October 15, November 26, December 1, December 5 and December 10, 1902. The evidence for defendant tends to prove that the coal shipped October 15th was unloaded and weighed by defendant October 22nd, and 'of that shipped November 26th, some was unloaded and weighed December 1, some December 4, 1902, and some January 12, 1903, and that coal shipped December 1, 1902, was unloaded and weighed December 2nd, 3rd, 5th, 12th and 18th. Coal shipped December 5th was unloaded and weighed December 8th, and coal shipped December 10th was unloaded and weighed December 13th, 15th, 16th and 19th. All of the aforementioned coal, except that shipped October 15th, was received, unloaded and weighed by the defendant about the time defendant became fearful that the plaintiff would fail to perform its contract. Mr. Eckhart testified that in the latter part of November and early part of December, 1902, defendant’s supply of coal was inadequate; that there was not coal enough in sight, which defendant could get, to keep its plant in operation, and it was in constant fear of being obliged to shut down. Also defendant’s letter to plaintiff of December 4th, stating that defendant was “running very low on coal,” and requesting immediate shipment, and plaintiff’s answer of December 6th to that letter, saying, among other things, “Begret. your running low on coal. You must have ‘phoned coal men and found their situation same as ours. Blame lies with railroads,” etc., are evidence that defendant was not supplied with coal as required by the contract. Under these circumstances, we are inclined to the view, which we think must have been that of the trial court, that the defendant was warranted not only in purchasing coal in the open market, but in withholding payment for that already received by it while it remained doubtful whether the plaintiff would furnish it with coal as per contract. In plaintiff’s letter of December 6th it substantially admits its inability to fulfill its contract, and in its letter of December 23rd it seems to authorize defendant to get coal in any possible way. Mr. Schaeffer, plaintiff’s secretary and treasurer, testified that defendant was in the habit of sending statements of weight of coal received and remitting by check twice a month, to which no objection appears to' have been made. Mr. Cooke, plaintiff’s assistant manager, testified that he never doubted the defendant’s financial responsibility, and Mr. Eckhart testified that during the months of December, 1902, and January, February, March and April, 1903, the defendant was always ready and able to pay any bill it owed. The snit was brought April 23, 1903, without any previous demand for payment. Before suit brought plaintiff sent two bills to defendant, both for mine run coal—one for $2.60 and one for $3 per ton, which defendant was under no obligation to pay, as is practically admitted by plaintiff, in amending its bill of particulars, charging $1.28 for mine run coal. The question to be decided is one of law, viz: Whether defendant’s omission to pay for the coal, shown in plaintiff’s second amended bill of particulars, is a default which precludes a recovery by defendant on its notice of set-off and the evidence in support thereof. Neither party attempted to rescind the contract, and the defendant never intended to abandon it, as is evidenced by its letters to the plaintiff insisting on plaintiff’s fulfillment of the contract. Neither did the defendant intend to violate the contract by withholding payment for coal delivered to it in pursuance of the contract. This is evidenced by the fact that, December 4, 1902, it sent to plaintiff a check for coal received by it from November 1st till November 15th. This the plaintiff received,, without objection that the October coal, which defendant unloaded and weighed October 22nd, had not been paid for. The defendant had no apprehension of non-payment for coal delivered in pursuance of the contract, and evidently acquiesced in the defendant’s manner of payment. The sending to defendant bills for mine run coal at $2.60 and $3 per ton, if considered as a demand for payment, was a demand which the plaintiff had no lawful right to make, in view of the contract. It is evident from the plaintiff’s letter of January 6, 1903, that it then regarded the contract in force, notwithstanding payment for coal received by the defendant prior to that date had not been made. See Bollman v. Burt, 61 Md. 415, 422.

In West v. Bechtel, 125 Mich. 144, the plaintiffs were coal and wood dealers in Grand Rapids, and the defendant was a dealer in wood at Menton, Michigan. The parties made a contract January 14, 1899, by which the defendant agreed to sell to the. plaintiffs 400 cords of wood at one dollar per cord, free on board car at Manton, the defendant agreeing to ship right away, and plaintiffs agreeing to remit as fast as the wood would “come in.” Three carloads were shipped by the defendant, and two were paid for by the plaintiffs, when, February 24, 1899, the plaintiffs wrote to the defendant, saying, “Tour conversation over telephone day before yesterday confirms our idea that you did not intend to fill contract,” adding that, though the price had materially advanced, they would expect the wood, and would be seriously damaged if it should not be shipped. February 28, 1899, the defendant wrote to the plaintiffs, saying that plaintiffs had agreed to pay for wood as fast as it came in; that defendant had shipped a car to them February 4th, which they had admitted, on February 21st, they had received two weeks before that date, and which they had not paid for, and threatened to sue if not paid. There was evidence tending to prove that in the conversation by telephone defendant asked the plaintiffs, “When are you going to pay for that?” and the plaintiffs answered, “We will pay for that when we get some more,” and defendant replied that plaintiffs would have to pay for that before they would get any. There was evidence that the price of wood had advanced since the making of the contract to $1.40 per cord, and that the defendant was offering to sell and sold wood at that price. Plaintiff sued the defendant for breach of the contract in refusing to deliver the wood contracted for. The trial court instructed the jury as follows:

“A contract of this character might be broken up by either party. A refusal to pay—nonpayment according to the terms of the agreement—might, under certain circumstances, constitute such a breach of the contract as would release the other party, and a refusal to deliver might be such a breach of the contract on the part of the defendant as would release the other party, or give him a cause of action. But the particular circumstances connected with the case oug’ht to be taken into consideration. The mere refusal to pay for a portion of the property delivered until more was received would not alone constitute such a breach of the contract as would warrant the other party, the defendant, in repudiating the entire contract, but, to warrant the defendant in refusing further to perform his part of the contract by delivering the wood which he had contracted to deliver, it ought to be made to appear that there was not merely a refusal to pay at once for the portion already delivered, but the circumstances connected with the whole matter, the conduct of both parties, ought to be taken into consideration, and it should be made to appear, to warrant the defendant in refusing further to deliver, that the conduct of the plaintiffs was such as indicated that they did not intend to perform their part of the contract.”

Error was assigned on the instruction, but the reviewing court, in a very thorough and exhaustive opinion, citing numerous English and American cases, sustained the instruction, and affirmed a judgment for the plaintiff. The court cites Mersey Steel & Iron Co. v. Naylor, 9 Q. B. Div. 648, 9 App. Cases 434, in which it is said, “The true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.” The court also cite Blackburn v. Reilly, 47 N. J. L., 290, in which case, p. 308, the court say: “In our opinion, the rule established in England by the judgment of the House of Lords in Mersey Steel & Iron Company v. Naylor, 9 App. Cas. 434, affirming the judgment of the Court of Appeals in S. C., 9 Q. B. D. 648, is one which in ordinary contracts of this nature, will work out results most conformable to reason and justice. The rule is, that defaults, by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract or a design no longer to he hound by its terms.” See also Winchester v. Newton, 2 Allen 492. In that case the court distinguished between a mere omission to pay and an unqualified refusal to pay. In the present case time of payment is not of the essence of the contract; the plaintiff acquiesced in the manner of making payment adopted by the defendant, and some of the coal sued for by defendant was delivered to the defendant after payments for former deliveries were due. There was no refusal to pay, and no demand for payment except the suit, and the defendant has not, by its acts or conduct, evinced any intention no longer to be bound by the contract, or not to pay for coal delivered to it, and now, when for the first time demand has been made, the defendant offers to pay the contract price for coal delivered to it by plaintiff, by crediting plaintiff with it on the amount which it was obliged to pay others for coal, by reason of the plaintiff’s manifest default, seeking only to recover the excess of what it was so obliged to pay over the contract price. We think this reasonable and just.

We find no error in the court’s rulings on propositions of law requiring reversal of the judgment. The judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. William Lewis, Plaintiff in Error.
    Gen. No. 13,730.

      Indictments—what must he proved as laid. A description of the place is material and must be proved according to the averment thereof. Where the indictment charges the keeping of a room for gaming purposes at No. 239 East Twenty-second street, in Chicago, proof of the keeping of such a room at the corner of Dearborn and Twenty-second streets, in the same city, is not sufficient.

      Proceeding by information. Error to the Municipal Court of Chicago; the Hon. John A. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 6, 1908.
    Edward H. Morris, for plaintiff in error.
    John J. Healy, State’s Attorney, and Clifford H. Roe, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

An information was filed against Wiliam Lewis, the plaintiff in error, charging that he was "interested in owning, keeping, managing and maintaining a certain room in the premises at number 239 E. Twenty-second street, in said city, for the purpose of permitting persons to game and gamble for money and other valuable things, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the People of the State of Illinois.” It is charged that the alleged offense was committed in the city of Chicago. The defendant pleaded not guilty and was fined $100 and costs. The defendant introduced no evidence.

Three witnesses testified for the people, and each of them testified that he saw the defendant gambling in a building at the corner of Dearborn and Twenty-second streets, and it was proved that the building is in the city of Chicago. That is the only building in respect to whicji evidence was given, and there was no evidence that the building was No. 239 E. Twenty-second street, nor was the number mentioned in the evidence.

It is assigned as error that "the proof does not show that the defendant kept a gaming house, or was interested in keeping one, at No. 239 E. Twenty-second street, as charged in the information,” and counsel for the defendant contends that the averment of the locus in quo is a material averment, proof of which is essential to conviction. Even in civil cases description of the place is material and necessary to be proved, W. C. R. R. Co. v. Weiczorek, 151 Ill. 579, 583; Wabash West. Ry. Co. v. Friedman, 146 ib. 583; Knuth v. George A. Weiss M. & El. Co., 72 Ill. App. 376, 389; Chitty on Pl., 252. For greater reason this is true in criminal eases, or eases involving a penalty. O’Leary v. The People, 88 Ill. App. 60, 65, and cases cited.

Counsel for the people contend that the deficiency of proof is a mere variance, and cannot be objected to here for the first time. We do not so regard it. It is not a mere variance, but a failure to prove an averment, proof of which is essential to a valid conviction. The omission to prove that the defendant was interested in owning, keeping, etc., a room at No. 239 E. Twenty-second street, for the purpose charged, was a fatal omission.

The judgment will be reversed and the cause will he remanded.

Reversed and remanded.


text:
    Sallie D. Pierce, Defendant in Error, v. The Bankers' Union of the World, Plaintiff in Error.
    Gen. No. 13,756.
    Fraternal benefit societies—when by-laws binding upon members. By-laws increasing premium rates are valid and binding upon members of a fraternal benefit society who have agreed to he hound by future by-laws.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed April 6, 1908.
    Statement by the Court. It is stipulated between the parties that the following was the application for membership in The Bankers’ Union of the World of Martin L. Shoffner, who departed this life March 16, 1906:
    “To the members of Newbern Council No................., located at Newbern, State of Tenn. I hereby make application for membership in your order, and participation in its beneficiary fund to the amount of ................, or such amount as the chief surgeon may approve of. It is agreed that all of the provisions of the constitution and laws of the order, now existing or hereafter adopted, shall form a part of the certificate issued, whether printed on or referred to in such certificate or not.”
    In pursuance of this application The Bankers’ Union of the World, July 25, 1901, executed a certificate of membership in the association, which was delivered to Martin L. Shoffner August 1, 1901. The certificate contains the following provisions:
    “That upon receipt by the Supreme Lodge at its office in the city of Omaha, Nebraska, of satisfactory proofs of the death of said member, and within sixty days thereafter, there will be paid to the beneficiary herein, Sallie L. Pierce, related to the said member as daughter, if then living; otherwise, to the legal heirs of the said member upon delivery of this certificate, the sum of $1,000. That upon receipt of satisfactory proofs thereof, and within sixty days thereafter, the Supreme Lodge will pay to the said member, if entitled thereto, such additional benefits as are recited at length on the reverse side hereof.
    “The payment of all benefits under this policy shall be governed by the provisions of the laws pertaining to this class of policies, which provisions together with the statements made by the insured in the application for membership, and the statements certified by the insured to the Medical Examiner, are hereby made a part of this contract.
    “This policy is issued to and accepted by the holder hereof upon the terms, and subject to the conditions set forth in the Constitution and By-Laws of this Union, and subject to the conditions and stipulations on the reverse side hereof, all of which are hereby made a part of this contract, as fully as if they were recited at length over the signatures hereto affixed.”
    Then follows a table of years running consecutively from “first year” to “twenty-first year,” both inclusive, and under “fifth year” is “$133.”
    A copy of the by-laws of 1901 of the association was put in evidence by stipulation, section B of which is as follows:
    “See. B. Reserve Fund—For the purpose of creating a reserve fund, to guard against poor risks, protect healthy members, equalize the cost to all, and absolutely insure the perpetuity of the Union, all insurance in the Bankers’ Union of the World will be adjusted and paid on the following plan: Should any member holding a policy die before having lived out his expectancy of life based on his age at entry according to the American Experience Table of Mortality, there shall be deducted from the death benefit payable under such policy held by said member a sum equal to the amount of one payment (at the rate paid by the member) for each month of the unexpired period of such life expectancy, with four per cent, on the unpaid balance of such sum.”
    The by-laws marked 1904 of the association were also put in evidence, by stipulation, section B of which is as follows:
    “See. B. Reserve Fund—-For the purpose of creating a reserve fund, to guard against poor risks, protect healthy, members, equalize the cost to all, and absolutely insure the perpetuity of the Union, all policies in The Bankers’ Union of the World will be adjusted and paid on the following plan: Should any member holding a policy die before having lived out his expectancy of life based on his age at entry according to the American Experience Table of Mortality, there shall be deducted from the death benefit payable under such policy held by said member a sum equal to the monthly premium for each month of his life expectancy at the rate provided in the table herein for his age at entry under said policy with interest from date of policy to date of death at two and one-half per cent, per annum, less the amounts paid into the Mortuary Fund of The Bankers’ Union of the World by said member, together with accumulated interest on the same for the period of his membership under said policy at two and one-half per cent, per annum.”
    It was stipulated that this by-law was in force from and after May, 1902, and at the time of the death of Martin L. Shoffner.
    The following stipulation was made between the parties and read in evidence:
    “It is stipulated in the record in open court that it appears from said constitution and by-laws respectively that:
    “ ‘The amount of one payment (at the rate paid by the member),’ mentioned and referred to in Sec. D, Division IX, of said Constitution of 1901, as the amount per-month to be deducted from the face of the policy, was and is the sum and amount of one dollar and eighty-four cents ($1.84), and that ‘the monthly premium for each month of his life expectancy at the rate provided in the table herein for his age at entry under said policy,’ mentioned in Sec. D, Division IX, of the Constitution, and in Sec. 6, Division VI, of the By-Laws, both of 1904, as the amount' per month to be deducted from the face of the policy, was and is the sum and amount of two dollars and sixty cents ($2.60).”
    The following was also stipulated and read in evidence :
    “That the policy sued on and its execution is admitted; that all premiums and installments are paid, and that plaintiff is the beneficiary and entitled to sue as such: that life expectancy of Martin L. Shoffner was 18.79 years; that, if the policy is governed by conditions on its face and constitution and by-laws of 1901, then there is due plaintiff $859; if policy is governed by conditions on its face and by-laws of 1904, there is due plaintiff $345.82.”
    The cause was heard by the court, without a jury, and the court found for the plaintiff and assessed her damages at $859, and after overruling motions of the defendant for a new trial and in arrest of judgment, rendered judgment on the finding, holding, as counsel for the defendant says, and as counsel for plaintiff contend, that section D adopted by the association in May, 1902, is unreasonable and void.
    John W. Burdette, for plaintiff in error.
    Seitz, Bryan & Wilber, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Counsel for plaintiff, defendant in error here, concede that the by-law, section D, in force May, 1902, and at the time of the death of Martin L. Shoffner, is a part of his contract if reasonable, and that the plaintiff, as beneficiary of the deceased, had no vested interest in the certificate of membership prior to the death of Shoffner. But counsel contend that the by-law of May, 1902, by which, if it controls, the plaintiff can only recover $345.82, is unreasonable, and argue that by that by-law, if the deceased had lived out his life expectancy, 18.79 years or 225% months, his beneficiary, after deducting the amount of premiums he would have liad to pay, and 2% per cent, interest thereon, from $1,000, as provided by the by-law, would receive only $149.87, and that the longer a member lives, the more he pays in and the less his beneficiary receives. ' From this counsel deduce the conclusions that the by-law is unreasonable. We cannot concur in this view. For aught appearing in the record, it may have been necessary to the continued existence of the association, to increase the monthly premiums, and therefore for the benefit of all the members.

In Fullenwider v. Royal League, 180 Ill. 621, in which case the contract of the member included future bylaws, it was held not unreasonable to increase the rates. See, also, 1 Bacon on Benefit Societies, 3rd ed., par. 185, and cases cited, par. 189, and note 1, p. 373.

When one procures insurance on his life for a certain sum in an ordinary insurance company, agreeing to pay yearly a certain fixed premium while he lives, the longer he lives the less becomes the remainder ascertained by deducting the total of premiums paid from the sum insured, and it sometimes occurs that the insured at the time of his death has paid more in premiums than the sum insured. The by-laws of 1904, including section D, adopted by the Bankers’ Union of the World in May, 1902, are part of the contract of the deceased, and are to be considered as if set out in his certificate of membership, he having agreed in his application that they should “form a part of the certificate. ’ ’

This agreement was binding on the deceased and is binding on the plaintiff, his beneficiary. Baldwin v. Begley, 185 Ill. 180, 183, 190; Scow v. Royal League, 223 ib. 32, 38; Murphy v. Nowak, ib. 301, 313.

The deceased recognized the by-law of 1902 as binding on him and acquiesced in it, by acting in conformity with it. By stipulations read in evidence, it appears that the by-law of 1902 raised the monthly premiums or rates of the deceased from $1.84 to $2.60, and at the time of his death, March 6, 1906, he had paid all premiums and installments.

The judgment will be reversed and judgment will be entered here that Sallie D. Pierce, the defendant in error, recover from The Bankers’ Union of the World, defendant in error, the sum of $345.82, with interest at the rate of five per cent, per annum from April 22, 1907, the date of the judgment in the trial court, and her costs in the trial court, and that plaintiff in error recover its costs of this court.

Reversed and judgment here.


author: Mr. Justice Brown

text:
    Rose Milashwskis, Defendant in Error, v. John Milashwskis, Plaintiff in Error.
    Gen. No. 13,469.

      Divorce—when findings of decree sufficient. A finding oí jurisdictional residence in this state is not necessary to a valid decree of divorce, if there are findings in the decree which show that the cause for divorce arose in this state.
    Divorce. Error to the Superior Court of Cook county; the Hon. Willard M. McEwek, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    Rehearing denied April 2, 1908.
    Max Luster, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out to reverse a decree of divorce entered by a chancellor of the Superior Court of Cook county in favor of the defendant in error against the plaintiff in error. By the same decree a cross-bill of the plaintiff in error, praying’ for a divorce against the defendant in error, was dismissed.

The assignments of error are;

First, that the court erred in rendering the decree in favor of complainant, and in dismissing the cross-bill of defendant, no evidence being preserved in the record, there being no verdict of a jury, no admission of the material facts alleged in the bill by the answer, and no specific finding of jurisdictional facts in the decree.

Second, that the court erred in rendering a decree in favor of complainant, there being no finding in the decree that complainant had been a resident of the State of Illinois one year next before filing her bill, or that the offense. or injury complained of was committed" within this state, or that one or both the parties resided in this state; nor is there any evidence preserved or a verdict of the jury finding any of such facts, nor are such facts or any of them admitted by the answer of defendant.

The case has been submitted to us on the brief and argument of the plaintiff in error alone, the defendant in error not having appeared.

The position of the plaintiff in error that the decree should be set aside is based entirely on the fact that there has been no certificate of evidence preserved in the cause, and that the findings of the decree as to the facts are only these: “That all the material facts

alleged in the said bill of complaint are true, and that the defendant has been guilty of extreme and repeated cruelty towards the complainant in manner and form as charged in the complainant’s bill of complaint.”

It is insisted that, as this does not specifically find that the complainant was a resident of the state of Illinois for one year preceding the filing of the bill, nor that the offense or injury complained of was committed within or while one or both of the parties resided in this state, there are no sufficient findings to support the decree.

The finding that all the material facts alleged in the bill of complaint are true, it is said, is not sufficient. To this is cited Rump v. Rump, 94 Ill. App. 582.

In Rump v. Rump no specific findings were made. In the decree in the case at bar the specific cause of divorce, the allegation of which was contested, was found to have existed, and in order to support the decree it was in any event only the formal jurisdictional allegation of residence (which was uncontested by the answer) which need fall under the finding that “all the material facts alleged in the bill of complaint are true."

It is needless to say that a court will not be astute to find reasons in a case like this on a writ of error to upset a decree affecting marital relations, on the faith of which innocent parties may have acted. We are not prepared to say, therefore, that the doctrine of Rump v. Rump (supra) applies to the present case. But if it does, we see no reason for vacating this decree. There is a specific finding therein that “the defendant has been guilty of extreme and repeated cruelty towards the complainant in manner and form as charged in the complainant’s bill of complaint.”

The charge in the bill of complaint is that “on or about the first of October, 1903, in the city of Chicago, the complainant again went to live with the said John Milashawskis and continued to live with him as his wife until the 28th day of March, A. D. 1904, * * * and that on or about the second day of September, 1903, at their house, the said John Milashawskis struck your oratrix a violent blow in her face with his fist, knocking her down, when he kicked and otherwise greatly injured her, and that afterwards, on or about the fourteenth day of March, 1904, and every day thereafter until the twenty-eighth day of March, A. D. 1904, the said John Milashawskis attacked your oratrix in their said house, and beat and choked her and forced her out of said house.”

We think this is a charge that the acts of cruelty were committed in this state, and that as the decree found that they were committed in manner and form as charged in the bill of complaint, the jurisdiction sufficiently appears, especially as the answer makes no denial of it, and the cross-bill of the defendant, which was dismissed, sets up his actual residence in the city of Chicago at the time he filed it, and for more than a year preceding.

The decree of the Superior Court is affirmed.

Affirmed.