text:
    Harry Boshes, Plaintiff in Error, v. William Kamin, Defendant in Error.
    Gen. No. 23,566.
    1. Pleading, § 295

      —what is not plea puis darrein continuance. Where defendant, after original declaration was held bad on demurrer, was discharged as a bankrupt, and amended declaration was thereafter filed, a plea of such discharge was not a plea of puis darrein continuance but a proper original first plea.
    2. Pleading, § 292*—what is proper office of plea puis darrein continuance. The proper office of a plea puis darrein continuance is to set up some matter of defense arising after issue joined in a case.
    3. Bankruptcy, § 62*—when plea of discharge is good. A plea of discharge in bankruptcy was good, in an action to recover damages for negligent treatment by defendant as a dentist of plaintiff’s teeth under a contract of employment between plaintiff and defendant for such services, since the debt was provable, plaintiff having had the right to waive the tort and bring action on the contract.
    Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    William J. Stapleton and Benjamin I. Morris, for plaintiff in error.
    Darrow & Sissman, for defendant in error; William L. Carlin, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

This is a writ of error to the Circuit Court of Cook county to reverse a judgment in that court entered in. favor of-the defendant.

In an amended declaration filed October 24, 1916, the plaintiff charged that the defendant was by profession a dentist; that on the 9th day of March, 1914, plaintiff retained and employed the defendant, for reward, to treat plaintiff for a certain ailment of his teeth, and that defendant so unskilfully ánd negligently treated the plaintiff that he, plaintiff, suffered great pain and was otherwise injured and had sustained damages, etc.

Defendant filed several pleas to the declaration, among which was one which set up that defendant had been adjudicated a bankrupt on October 29, 1915; that plaintiff’s claim against the defendant was duly scheduled ; that defendant was discharged as such bankrupt on April 24, 1916. A demurrer filed by plaintiff to this plea was overruled and judgment was entered by the trial court in-favor of the defendant.

The question presented here is whether the court erred in overruling the demurrer to the plea. The defendant was adjudged a bankrupt in the District Court of the United States on the 29th day of August, 1915, and he received his discharge on the 24th day of April, 1916. A special plea of bankruptcy was filed; concurrently with a plea of the general issue, to the amended declaration. On this record it appears that defendant filed his plea of bankruptcy so soon as it was possible for him to do so. The plea in question is not a plea puis darrein continuance. The proper office of such a plea is to set up some matter of defense arising after issue joined in a case. In the case at bar it appears that the original declaration filed in the cause was held bad on demurrer and that the discharge in bankruptcy was had before the plaintiff had filed his amended declaration, which set up a good cause of action, and hence the defense relied upon was set up in the first pleas filed by defendant. In Mount v. Scholes, 120 Ill. 394, it was held that if matter of defense arise after plea, and before replication, or after issue joined, whether of law or fact, then it must be pleaded puis darrein continuance. The matter of defense set up in the bankruptcy plea did not, as said, arise after issue joined. This defense was available to defendant at the moment that plaintiff filed his first sufficient declaration and it was presented thereto so soon as it was possible for defendant to do so.

It is urged on behalf of the plaintiff that the cause of action set up in the declaration was not provable under the Federal Bankruptcy Act, and that the District Court of the United States was without jurisdiction to discharge the defendant from liability to the plaintiff. Section 17 of the Act provides:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (1) are due as a tax levied by the United States, the state, county, district, or municipality in which he resides; (2) are liabilities for obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation; (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.”

Section 63a of the Act provides for the kinds or classes of claims which may be proved against a bankrupt’s estate, and paragraph b of this section is as follows:

“Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.”

The chief question which' we are asked to determine is whether the claim of plaintiff was provable in the bankruptcy proceedings against the estate of defendant. It may be conceded, as urged for plaintiff, that the action is for unliquidated damages. In the decíaration plaintiff asserts in effect that he entered into a contract with defendant under the terms of which defendant, for reward, promised to skilfully and carefully perform certain services for the plaintiff. We think it clear that the action was one founded upon a contract between the parties, and from the facts alleged in the declaration it is apparent that plaintiff, had he seen fit to do so, could have waived the tort and brought his action on the contract.

Counsel for plaintiff rely in a measure upon In re United Button Co., 15 Am. Bank. Rep. 391, in which the court said on page 403 that:

“A claim for unliquidated damages resulting from injury to the property of another, and not reduced to judgment and unaccompanied and unconnected with any contractual or quasi contractual liability, is not susceptible of liquidation under section 63b of the Bankruptcy Act of 1898.”

The distinction between that case and the instant case is that here we have a case which is connected with a contractual liability. The declaration shows a contract of employment.

In the case of Crawford v. Burke, 195 U. S. 176, plaintiff brought suit in trover and it was alleged that plaintiff had employed defendants as brokers to hold and carry stock subject to plaintiff’s order; that defendants had wrongfully and fraudulently sold certain stock which they held for plaintiff. After issue joined a plea puis darrein continuance was filed by defendants, in which plea it was alleged that defendants had received their discharge in bankruptcy; it was held that the discharge in bankruptcy under the special plea operated as a complete answer to the charges made in the declaration, and referring to paragraph b of section 63 of the Bankruptcy Act the court said:

“As to paragraph b, two constructions are possible: It may relate to all unliquidated demands or only to such as may arise upon such contracts, express or implied, as are covered by paragraph a.
“Certainly paragraph b does not embrace debts of an unliquidated character and which in their nature are not susceptible of being liquidated. Dunbar v. Dunbar, 190 U. S. 340, 350. Whether the effect of paragraph b is to cause an unliquidated claim which is susceptible of liquidation but is not literally embraced by paragraph a, to be provable in bankruptcy, we are not called upon to decide, as we are clear that the debt of the plaintiff was embraced within the provision of paragraph a, as one ‘founded upon an open account, or upon a contract, express or implied,’ and might have been proved under section 63a had plaintiff chosen to waive the tort and take his place with the other creditors of the estate.”

The action here is for damages arising out of the alleged manner in which the defendant performed professional services for the plaintiff, and, while the alleged damages are unliquidated, the claim of the plaintiff arises out of a contractual relationship.

Counsel have called our attention to a class of cases where a distinction is made in tort actions between those where a party plaintiff could waive the tort and bring his action ex contractu, and those actions where it is not permissible to waive the tort, for the purpose of supporting their argument that torts which have resulted in the enrichment of the wrongdoer may be waived and suit maintained on the express or implied contract, etc., for as it is stated, “the measure of the enrichment is the measure of the implied contract.” We are not quite certain as to just what is meant by this language. It is true that where a defendant has committed a legal wrong which results in injury to a plaintiff and the wrongful act of defendant also constitutes a breach of a contract existing" between the plaintiff and defendant, the plaintiff may waive the tort and bring his action upon the express or implied contract; and while there is some authority to the contrary, we are inclined to the opinion that in such cases, where the tort has been waived and suit brought on the contract, the measure of damages is not necessarily the extent of the amount of enrichment of the defendant by his wrongful conduct. Indeed, we think it obvious that while in some such cases a wrongdoer may be regarded as a trustee for the benefit of the person wronged, still a plaintiff may, within well-defined limits, base his right to and the amount of his recovery upon the injury resulting to him from the wrongful conduct. We are unable to find any good reason for the distinction sought to be made between torts resulting in enrichment of a wrongdoer defendant and those which have resulted in injury to a plaintiff irrespective of whether the wrongful acts benefit the defendant. While there is support in authority for the contention made by counsel (1 Remington on Bankruptcy, sec. 636), we think the rule may be regarded as settled by the Crawford v. Burke case, supra.

Plaintiff bases his right to recovery upon the manner. in which the defendant performed a contract of employment. It is alleged in the declaration that the defendant unskilfully and carelessly performed the services which he had agreed to perform for plaintiff. This clearly is a case where the plaintiff could waive the tort and bring suit on the contract, and hence the debt which plaintiff sought to recover from defendant was provable against defendant’s estate in the bankruptcy proceedings in the federal court.

The judgment of the Circuit Court' is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    The People of the State of Illinois ex rel. Bessie Carter, Appellee, v. Lorin Ly Burtis, Appellant.
    Gen. No. 23,604. (Not to be reported in full.)
    Abstract of the Decision.
    Bastards, § 16

      —when complaint may 6e amended after verdict. A' complaint under the Bastardy Act alleging that plaintiff was an unmarried female, was then pregnant with child, and that defendant was its father, was subject to amendment after a verdict finding plaintiff was an unmarried female, that she was on- a certain date subsequent to the filing of the complaint delivered of a child born alive, and that defendant was the father thereof, and before judgment, by alleging, in addition to other allegations, such delivery, as the gravamen of the offense was that the defendant was the father of a child which, when born, would become a bastard.
    Appeal from the Municipal Court of Chicago; the Hon. Howard Hates, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court-at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Statement of the Case.
    Proceedings in bastardy by the People of the State of Illinois on the relation of Bessie Carter, plaintiff, against Lorin Ly Burtis, defendant. From a judgment on a finding of guilty, defendant appeals.
    Ellis & Westbrooks, for appellant; Bichares E. Westbrooks, of counsel.
    Maolay Hoyne, for appellee; Edward E. Wilson, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    James H. Hooper, Appellee, v. O. C. Hagen, Appellant.
    Gen. No. 23,612. (Not to be reported in full.)
    Abstract of the Decision.
    1. Vendor and purchaser, § 167

      —when consideration for arrangement concerning rent shown. Evidence held to show that plaintiff and defendant had such interest in certain premises at and after a contract for the sale of same was entered into between plaintiff’s assignor as purchaser and a certain stenographer in defendant’s office as would furnish a sufficient legal consideration for defendant’s promise to plaintiff to furnish plaintiff certain orders upon the tenants in possession of the premises to pay rent to the plaintiff, notwithstanding defendant was not the holder of the legal title, and notwithstanding plaintiff directed execution- of the deed under the contract to another person, where plaintiff and defendant had dealt with each other as having an actual interest in the premises.

      Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here for plaintiff for $28.90.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by James H. Hooper, plaintiff, against O. O. Hagen, defendant, to recover upon an alleged agreement by defendant to procure for plaintiff certain orders upon the tenants in possession of certain premises to pay the rents due and to accrue to plaintiff under a certain written contract for the sale of the premises to plaintiff’s assignor, the contract being assigned to plaintiff. From a judgment for plaintiff for $89, defendant appeals.
    The contract was executed by a stenographer in defendant’s office, on one side, and plaintiff’s assignor, on the other. The deal was closed after the assignment, and by plaintiff’s direction deed was executed by Frederick J. Phillips, who held the legal title, to Louis Heidlauf.
    Anderson, Anderson & Anderson, for appellant.
    James H. Hooper, pro se.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Vendor and purchaser, § 167*—when rent recoverable by assignee of contract of purchase from real original owner. Plaintiff was entitled to recover from defendant as the real original owner of property certain rent due, less a certain deduction conceded, where he was entitled to such rent as assignee of a certain contract of purchase but was unable to enforce collection of same by reason of defendant’s refusal to perform his agreement to deliver to plaintiff orders upon the tenants to pay rent to plaintiff.


text:
    Mary E. Hicks, Administratrix, Appellee, v. Sarah Monahan, Appellant.
    Gen. No. 23,629.
    1. Executors and administrators, § 92

      —power of Probate Court to resort to chancei'y process .to compel delivery of. property to administrator. A Probate Court has the power to compel compliance, by resort to chancery practice, with its orders entered under the authority of sections 81 and 82 of the Administration Act (J. & A. n 130, 131), directing the delivery of property of an estate to the administrator.
    2. Courts, § 105*—power of Probate Court to enforce decrees and orders by chancery process. While County and Probate Courts are courts of limited jurisdiction, they have, under the statutes and decisions of Illinois, the power, within the limits of that jurisdiction, to enforce certain of their decrees and orders by chancery process.
    3. Executors and administrators, § 92*—poxoer of Probate Court to enforce delivery of property to administrator by summary pro
      cess. Sections 81 and 82 of the Administration Act (J. & A. Iff 130, 131), as reasonably interpreted, are intended to confer upon County and Probate Courts the power, similar to that exercised by courts of equity, to enforce by summary process orders entered thereunder for the delivery to the administrator of an estate of property of the estate which is wrongfully withheld.
    ¡ 4. Executors and administrators, § 92

      —u>hat are proceedings in chancery. Proceedings under sections 81 and 82 of the Administration Act (J. & A. .mri30, 131), for the delivery of personal property of an estate wrongfully withheld from the administrator, are proceedings in chancery.
    5. Equity, § 547*—how evidence upon which order for delivery of property to administrator is hosed should he preserved. In a proceeding under sections 81 and 82 of the Administration Act (J. & A. 1Í1Í130, 131), to compel the delivery of personal property of an estate alleged to be wrongfully withheld from the administrator, it is the duty of the petitioner in whose favor the order is entered to preserve, either by a certificate of evidence or by a. finding of facts in the order, the evidence upon which the order is based.
    6. Equity, § 547*—preservation of evidence. It is incumbent upon the party in whose favor a decree in chancery is entered to preserve in some manner the evidence upon which it is based.
    7. Appeal and error, § 1786*—when decree reversed for insufficiency of record. On an appeal from a decree entered in a proceeding under sections 81 and 82 of the Administration Act (J. & A. K1[130, 131), to compel the delivery to the administrator of personal property of the estate, alleged to be wrongfully withheld, where there is no certificate of evidence in the record and the decree merely finds that property in question is possessed and unlawfully detained by the respondent and there is nothing by which the Appellate Court can determine upon what this conclusion is based, the decree will be reversed.
    8. Executors and administrators, § 92*—what practice impliedly to he followed in compelling delivery of effects of estate. Though sections 81 and 82 of the Administration Act (J. & A. HIT 130, 131), relating to the compelling of discovery of concealed effects of an estate and delivery to the administrator, do not expressly provide that the remedies therein provided for are to be as in cases in chancery, it is implied that chancery practice is to be followed.
    Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed March 5, 1918.

      Winters, Price & Stevens, for appellant; George M. Stevens and Julian Olay Bisk, of counsel.
    Bice, Lowes, O’Neil & Bicharos, for appellee; John H. McAuliffe, of counsel.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

Mary E. Hicks, administratrix of the estate of Ellen Monahan, deceased, filed a petition in the Probate Court under sections 81 and 82 of the Administration Act (J. & A. ¶¶ 130, 131) against Sarah Monahan and Jane Monahan, in which petition it was alleged that Sarah Monahan and Jane Monahan had in their possession, belonging to the estate, certain goods, chattels, effects, books of account, papers and evidences of debt, or that respondents had knowledge or information concerning the property belonging to the estate which they refused to give to petitioner on demand. A citation was issued on the petition against Sarah. Monahan and Jane Monahan, and on December 2, 1914, the Probate Court entered an order of record, which order recited that the cause having been heard upon the petition and citation against respondents, and evidence having been taken, etc., the court finds “that neither Sarah Monahan nor Jane Monahan have in their possession or are withholding from the petitioner herein any personal property belonging to the estate of Ellen Monahan, deceased.” The citation against respondents was thereupon dismissed and the administratrix appealed the cause to the Circuit Court.

On January 12, 1916, the Circuit Court directed respondent Sarah Monahan and Mary E. Hicks jointly to produce and deliver to the clerk of that court, until the further order of the court, the contents .of a certain safety deposit box. By stipulation of the parties the cause was submitted to the Circuit Court for trial without a jury.

On June 22,1917, the Circuit Court entered an order of record in which it found that:

“It further appearing to the court from the evidence in this case, and the court being full advised in the premises; finds that it has jurisdiction of the subject-matter hereof, and of all parties hereto; and that the three said Calumet Gras Company Bonds No. 223, 234 and 235 respectively, of the denomination of one thousand dollars ($1,000), together with the interest coupons attached to each bond; one Chicago Auditorium Association first mortgage bond No. 334 of the denomination of one thousand dollars ($1,000) together with the interest coupons attached thereto; one United States of America bond No. 27787 of the denomination of one thousand dollars ($1,000) together with the interest coupons attached thereto; and the sum of forty-six hundred and thirteen dollars ($4,613) of lawful money of the United States of America is the property of Ellen Monahan, deceased.”

The court further found that the bonds referred to and the sum of $1,613 in cash had been deposited by the respondent Sarah Monahan on the 12th day of January, 1916, with the clerk of the court, under an order of court. The court further found that respondent Sarah Monahan “is possessed and unlawfully detains from said Mary E. Hicks, as administratrix, as aforesaid, the sum of $3,000, lawful money of the United States of America,” and it further ordered and decreed that said respondent deliver said sum of $3,000 to said Mary E. Hicks, administratrix, on demand therefor.

Respondent Sarah Monahan brings the case here by appeal for review.

It is insisted on behalf of respondent that the proceedings brought under sections 81 and 82 of the Administration Act were for the discovery of assets belonging to the estate and should be regarded as in the nature of a bill in equity for discovery and that the cause should be governed by the practice obtaining in chancery courts. In the case of Martin v. Martin, 170 Ill. 18, a residuary legatee by petition prayed for a citation against an executrix who, it was alleged, had in her possession certain personal property belonging to the estate and which she claimed as her own property. In deciding the case the court held that no formal pleadings are required to give the court jurisdiction in such proceedings and that the court had full power to determine the matters arising under the citation without formal answer or other pleadings. Mot-withstanding the fact that the parties in the case had submitted written propositions of law under section 61 of the Practice Act (J. & A. ¶ 8598), to be held as law in the decision of the case, the court held that the proceeding was in its nature a chancery proceeding) After a résumé of prior decisions of the court, Mr) Justice .Cartwright for the court said:

“A proceeding of this nature in the County Court sitting in probate was unknown to the common law, and jurisdiction in cases involving such question was vested in ecclesiastical or chancery courts, which had no jury. Although County Courts are without general chancery jurisdiction, yet in probate matters they have jurisdiction of an equitable character and may adopt the forms of equitable proceedings.”

Section 81 of the Administration Act (J. & A. ¶ 130) provides that if any executor or administrator, or other person interested in any estate, shall state, etc., that he believes that any person has in his possession, any personal property of the estate, etc., the court may examine and hear the evidence of either party “and make such order in the premises as the case may require.” Section 82 of the Act (J. & A. ¶ 131) is as follows:

“If such person refuses to answer such proper interrogatories as may be propounded to him, or refuses to deliver up such property or effects, or in case the same has been converted,- the proceeds or value thereof, upon a requisition being made for that purpose by an order of the said court, such court may commit such person to jail until he shall comply with the order of the court therein.”

In Kepple v. Crabb, 152 Ill. App. 149, it was held in a case arising under a petition which charged an administrator with withholding property belonging to the estate, that the proceedings under the sections of the Administration Act were summary in character, and the couft in determining the rights of the parties “had full chancery powers and jurisdiction, and the proceeding is had under the rules of chancery practice.” In Bliss v. Seaman, 165 Ill. 422, the court in distinguishing between classes of cases over which the Probate Court had jurisdiction, said: “In the settlement of estates of deceased persons or adjustment of the accounts of executors, administrators and guardians, the County Court may exercise equitable as well as legal powers and adopt equitable forms of proceedings * * *.”

In Blair v. Sennott, 134 Ill. 78, the trial court in its order found that “said William T. Blair has in his possession the sum of $153 belonging to said estate,” and ordered him to turn over to the administratrix of the said estate said sum within 24 hours, and the Supreme Court held that the jurisdiction of the subject-matter and of the person appearing of record, the presumption in favor of the correctness of the ruling of the Probate Court would be indulged by the court of review.

In Dinsmoor v. Bressler, 164 Ill. 218, the court held that an attorney employed by an administrator to bring suit, and who it was charged had collected and retained to his own use the money due the administrator, could not be committed to jail by resorting to summary proceedings provided by sections 81 and 82 of the Administration Act, and on page 222 the court said:

“If sections 81 and 82 could be used to settle contested rights to property as between executors and administrators on the one side and third persons on the other, they would operate as an infringement upon the constitutional right to trial by jury, as they contain no provision for a jury trial.”

The decision in this case turned upon the fact that the claim against the attorney charged was created after the death of the intestate and grew out of a contract between the administrator and the attorney, and hence could not “be collected in the- Probate Court through the machinery of the proceedings authorized by sections 81 and 82.”

While the Dinsmoor ease, supra, does not directly decide the question under consideration here, we think it is necessarily implied in the decision of that case that the Probate Court had the power by resort to chancery practice to compel compliance with orders of that court entered under the authority of sections 81 and 82 of the Administration Act. It is not contended here that the claim made against respondent is based upon matter occurring after-the death of the intestate.

Courts of chancery have from early times assumed jurisdiction over questions arising in the probate and settlement of the estates of deceased persons. The statutes of this State confer this jurisdiction upon County and Probate Courts, and although these courts are courts of limited jurisdiction only the later decisions of the Supreme Court are to the effect that they have, within the limits of such jurisdiction, the power to enforce certain of their decrees and orders by chancery process. Martin v. Martin, supra. But, aside from this, a reasonable interpretation of the language of sections 81 and 82 of the Administration Act leads us to the opinion that the Legislature intended to confer upon County and Probate Courts the powei^ to enforce orders, such as the one under consideration, by summary process similar to that exercised by courts of equity. Section 82 of the statutes provides that where a person refuses to comply with a proper order made in pursuance of the act, the court “may commit such person to jail until he shall comply with the order of the court therein.” The Legislature intended by this statute to provide a summary process by which the court would be enabled to enforce its orders by committing a refractory person to jail. The power thus given the court by the statutes to enforce its orders against one who wrongfully withholds personal property belonging to the estate of a deceased person by committing the wrongdoer to jail is a resort to that practice and process which in a peculiar sense renders so effective the orders and decrees of chancery courts.

While there is some confusion in the decided cases, we think that the proceedings in question must be held to be proceedings in chancery, and if we are right as to this, it necessarily follows that the petitioner should have preserved, by a certificate of evidence or by a finding of facts in the order, the evidence upon which the order of the Circuit Court is based.

In Berg v. Berg, 223 Ill. 209, the court said:

“In chancery cases the practice is well settled in this State that the party in whose favor a decree granting relief is entered, to maintain it must in some way preserve the evidence, by a certificate of evidence or otherwise, or the decree must find the specific facts that were proven on the hearing, and that it is not the duty of the party against whom the decree is rendered thus to preserve the evidence. No presumption will be entertained that evidence sufficient to sustain the decree, not appearing in the record, was heard, and if the evidence is not thus properly preserved the decree will be reversed upon appeal.”

The duty rests upon a party in whose favor a decree in chancery is entered to preserve in some manner the evidence upon which such decree is based. Ohman v. Ohman, 233 Ill. 632.

In its order the trial court found that the money in controversy was possessed and unlawfully detained by respondent Sarah Monahan, and it ordered it turned over to the administratrix. This is not a finding of facts within the purview of the eases last above referred to. It may be conceded, as urged, that it is not necessary in a decree or order for the trial court to find evidentiary facts. This does not, however, release the court, where, as in this case, no certificate of evidence appears in the record, from finding the ultimate facts upon which a decree or order is based. The finding here is merely the ultimate conclusion which would be a proper return for a jury, if the case were one for determination by a jury, and the conclusion is solely that the property was unlawfully detained. How the property came into the possession of respondents does not appear, nor can we determine from the record upon what facts the trial court based its legal conclusion that the property in question was unlawfully detained by respondents.

In Akin v. Akin, 268 Ill. 324, the court in reviewing a decree of the Probate Court authorizing an executor to sell real estate, said:

“The decree finds the facts upon which it is based, and where facts are recited in' the decree it is not necessary to preserve the evidence of them otherwise, nor is it necessary to recite the evidentiary facts. It is sufficient if the ultimate facts which form the basis of the relief granted are found. * * * And it is a general rule of chancery practice that a decree granting affirmative relief cannot be sustained unless the evidence on which it is based is preserved in the record or the decree finds facts which justify the relief.”

The decision in that case is based upon section 101 of the Administration Act (J. & A. ¶ 150), which provides that the practice in petitions to sell real estate shall be as in cases in chancery, and although sections 81 and 82 of this Act do not ^expressly provide that the remedies therein provided for are to be as in cases in chancery, we think that such practice is necessarily implied in the language used.

The order of the Circuit Court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Philip Gollner Company, Appellant, v. David D. Hepburn et al., Appellees.
    Gen. No. 23,648. (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 68

      —when shown that defendant not timely served with notice of claim by subcontractor. On appeal from a judgment in a proceeding to enforce a lien in favor of a subcontractor under Rev. St. ch. 82, sec. 21 (J. & A. 7159), evidence held sufficient to support a finding that the subcontractor had not served defendant with a written notice of his claim within 60 days from the date of the last delivery of material.
    2. Mechanics’ liens, § 197*—when presumed that payment for material was due subcontractor on delivery. Where it does not appear from the statement of claim in a proceeding to enforce a subcontractor’s lien under Rev. St. ch. 82, sec. 21 (J. & A. H 7159), when the material furnished was to be paid for, it will be presumed that the payment was due on delivery thereof, and such suit to enforce the lien will be barred when not begun within 4 months after the delivery.

      Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jakecki, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Bill by Philip Gollner Company, a corporation, complainant, against David D. Hepburn and Elizabeth Hepburn, defendants, to enforce a lien under Rev. St. ch. 82, sec. 21 (J. & A. ¶ 7159). From a judgment for defendants, complainant appeals.
    D. J. Normoyle, for appellant.
    Adams, Crews, Bobb & Wescott, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Liens, § 2*—when right to lien denied. The right to a lien is a privilege bestowed by the statutes upon a particular class of persons and will be denied where the person claiming under the statutes has failed to bring himself within their terms.


text:
    Jacob Goodman, Appellee, v. Abe Smith and Isadore Merelevitch, Appellants.
    Gen. No. 23,669. (Not to be reported in full.)
    Abstract of the Decision.
    1, Brokers, § 88^to7z-e?i shown that broker accepted payment for services from agent of purchaser. In an action to recover from the vendor a commission on the sale of real estate, evidence held to show that plaintiff had accepted from the purchaser’s agent a sum of money in payment of his services in connection with the sale.

      Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Statement of the Case.
    Action by Jacob Goodman, plaintiff, against Abe Smith and Isadore Herelevitch, defendants, to recover commission claimed to be due for negotiating the sale of real estate. From a judgment for plaintiff for $1,665, defendants appeal.
    Hyman Soboroff, for appellants.
    Vincent G. Gallagher and Ernest Messner, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Brokers—what constitutes release of vendor from, liability for commissions. Where one who has been negotiating the sale of property for the vendor executes an instrument, after a contract for the sale of the property has been entered into and he has received a sum of money from the purchaser’s agent, which recites that he thereby releases his “right from commission on” the property in question, such instrument constitutes a release of his claim against the vendor for commissions.


text:
    Mandel Brothers, Appellee, v. Alfon E. Bahr and Mrs. Alfon E. Bahr, Appellants.
    Gen. No. 23,688. (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 329

      —when sale of goods on approval and return shown. In an action for goods sold and delivered, evidence examined and
      held to show that the goods were sold on approval and were returned by defendants to plaintiff’s agent in perfect condition.

      Appeal from the Municipal- Court of Chicago, the Hon. John F. Haas, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Mandel Brothers, a corporation, plaintiff, against Alfon E. Bahr and Mrs. Alfon E. Bahr, defendants, for goods sold and delivered. From a judgment for plaintiff, defendants appeal.
    .Edgar A. Jonas, for appellants.
    Albert S. Louer, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Amy R. Sullivan, Appellee, v. John J. Sullivan, Appellant.
    Gen. No. 23,695. (Not to be reported in full.)
    Abstract of the Decision.
    Husband and wife, .§ 237

      —when evidence warrants alloxoance in suit for separate maintenance. On a bill for separate maintenance, evidence held to support a ’decree awarding separate maintenance and requiring defendant to pay $10 a week for the support of the complainant and the child of the parties.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gbidley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Bill by Amy B. Sullivan, complainant, against John J. Sullivan, defendant, for support and maintenance of complainant and for the custody and maintenance of the child of the parties. From a decree awarding separate maintenance and requiring defendant to pay $10 a week for the support and maintenance of complainant and the child, defendant appeals.
    McInerney & Power, for appellant.
    A. W. Glaskay, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Globe Wernicke Company, Appellee, v. Siegel Myers School of Music, Appellant.
    Gen. No. 23,873. (Not to be reported in full.)
    Abstract of the Decision.
    1. Compositions with creditors, § 2

      —necessity of strict enforcement of composition agreement. A composition agreement must be strictly "and punctually enforced, and creditors who are parties thereto must, on their part, carry out the agreement with the greatest good faith and will not he allowed to repudiate it.
    2. Compositions with creditors, § 1*—when supported t>y sufficient consideration. Where several creditors agree with a debtor to extend the time for the payment of his obligations to them, the promise of each creditor to the others constitutes a sufficient consideration to support the promise of each creditor, and where the agreement is carried out in good faith, a creditor who is a party thereto is barred from bringing an action on his original claim against the debtor, pending the composition agreement.

      Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by the Globe Wernicke Company, a corporation, plaintiff, against Siegel Myers School of Music, a corporation, defendant, for goods sold and delivered. From a judgment for plaintiff for $391.57, defendant appeals.
    Archibald Cattell, for appellant; Carl A. Waldron, of counsel.
    Edward L. England, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Compositions with creditors, § 2 —what does not constitute breach of composition agreement. An agreement between the creditors of a corporation and the debtor provided that the creditors should elect a trustee who should be placed in control of the business and property of the corporation. The creditors, the debtor and the trustee agreed that the debtor should receive an extension of time as long as the business should be conducted pursuant to the agreement, and the creditors agreed to receive payment of their claims proportionately as directed by the trustee. The trustee was given discretionary power to manage the business of the corporation to secure the payment of the claims and a majority of the stock was placed in his hands with' power to vote it. The trust agreement also provided for the payment of certain dividends to the creditors at specified intervals after the payment of the trust expenses. After some dividends were paid, those remaining unpaid were passed, and the trust was, by agreement, extended to a certain date, specified dividend payments being provided for. Before the date of expiration, a further extension was agreed upon by the creditors, the resolution also passing the unpaid dividends and authorizing a payment of a certain dividend each month, “as near as may be,” and the creditors voted the trustee $500 for his services. Held, that the payments of dividends directed by the last extension were not intended to constitute a contract binding on the trustee, the creditors and the debtor, but the provision in regard thereto merely constituted a direction to the trustee to make such a dis>tribution and was dependent upon profits accruing from the operation of the business, and that a failure to pay dividends as provided does not constitute a breach of the agreement, permitting a creditor to sue on his claim.

4. Compositions with creditors, § 2*—when creditor may not repudiate composition agreement. A creditor who has become a party to a trust agreement under which the debtor has conveyed its property to a trustee to be managed for the creditors, and who has acquiesced for 3 years in the agreement and has received dividends distributed by the trustee pursuant to its terms, cannot thereafter repudiate the agreement and sue on his claim before the termination of the agreement or of authorizd extensions of it.

5. Compositions with creditors, § 2*—when creditor is not released from composition agreement. The fact that, at a meeting of pensation, does not release a creditor from the agreement nor voted a certain sum in payment of his services, the trustee held . enough proxies of creditors to enable him to vote himself the compensation, does not release ■ a creditor from the agreement and authorize him to sue on his claim before the agreement expires, especially where he made no objection on this ground for several months and received and retained dividends distributed under the agreement pursuant to a resolution which was adopted at the same meeting at which the trustee was voted such compensation.


text:
    Maria A. Larson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,930. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood I-Ionore, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Statement of the Case.
    Action by Maria A. Larson, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries alleged to have been received in alighting from defendant’s street car by reason of defendant’s negligence in stopping its car at a dangerous and unsafe place. From a judgment for plaintiff for $1,000, defendant appeals.
    William: H. 'Symmes and Frank L. Kriete, for appellant; John R. Guilliams and C. C. Cunningham, of counsel.
    C. Helmer Johnson and Stedman & Soelke, for appellee ; James D. Power, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

Carriers, § 476*—when evidence supports verdict for plaintiff in action for injuries received in alighting from, car. In an action against a street railway company to recover for injuries received by a passenger in alighting from the car, evidence examined and, though conflicting, held to be sufficient to support a verdict for plaintiff.


author: Mr. Justice McSurely

text:
    Colonial Trust & Savings Bank, Appellee, v. Sandoval Zinc Company, Appellant.
    Gen. No. 23,538. (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1752

      —when judgment will he affirmed. On an appeal, where the abstract fails to inform the court of the matters relied on for a reversal, the judgment will be considered as finding support in the record and will not be disturbed.
    Appeal from, the Municipal Court of Chicago; the Hon, Harry P. Dolan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Colonial Trust & Savings Bank, a corporation, plaintiff, against Sandoval Zinc Company, a corporation* defendant, to recover on a promissory note. From a judgment for plaintiff for $850, defendant appeals.
    Cunningham & Oswald and Louis C. Gibson, for appellant.
    Undebwood & Smyseb, for appellee; Chaeles B. Young, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    In re Estate of Winfield Scott Thurber, Deceased. Chicago Title & Trust Company, Administrator de bonis non, Appellee, v. Corporation of the Fine Arts Building, Appellant.
    Gen. No. 23,574.
    1. Executors and administrators, § 204

      —what allowable as expenses of administration. All expenses of an administrator which are proper to the conservation of the property of the estate should be allowed as expenses of administration.
    2. Executors and administrators—when claim for rent of premises used in conducting business of estate allowable as administration expense. Under Rev. St. ch. 3, secs. 78, 133 (J. & A. 1fí[ 127, 182), a claim for the rent of premises used by the executrix to conduct the business of the estate is properly allowable as an expense of administration, where it appears that the testator had conducted business on the premises and that by reason of the peculiar character of the premises, with regard to their location and physical surroundings, a removal of the business would have resulted in a decided loss to it.
    3. Executors and administrators, § 286*—when trial de novo had on allowance of claim in Circuit Court. On an appeal to the Circuit Court from an order of the Probate Court allowing the rent of premises as an expense of administration and awarding the petitioner priority, the questions of the allowance of the claim and its priority are before the Circuit Court as matters de novo, and the Circuit Court may, regardless of the reasons given by the Probate Court for allowing or disallowing the claim, make such order as it deems proper.
    4. Executors and administrators—when claim need not be filed in one year. Expenses of administration are not debts of the decedent, for which claims are to be filed in a year, but are debts of the estate.
    5. Executors and administrators—when liability of estate for rent of premises used by executrix in conducting business not affected by assignment of lease. The liability of an estate for rent of premises, which had been leased to the testator, during the period that they were occupied by the executrix while conducting the business of the estate is not affected by the fact that the executrix assigned the lease to a paper corporation, where it appears that she held all of the stock, that the consideration intended to be given for the stock was a transfer of goods belonging to the estate, that the assignment was signed by the executrix as such and the acceptance was signed by her as president of the corpora^ tion, that the purpose of the organization of the corporation was to prevent the use of the testator’s name in the line of business which he had pursued, and that no order transferring any of the assets to the corporation was made and no actual transfer of them was made.
    6. Executors and administrators-—when estate not relieved from liability for rent of premises. The liability of an estate for the rent of premises occupied by the executrix in conducting the business of the estate is not affected by the fact that a company from which her testator had originally subleased the premises paid the landlord a certain amount in satisfaction of its guaranty of the sublease.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 5, 1918.
    Tenney, Harding & Sherman and Wilson, Moore & McIlvaine, for appellant; Horace Kent Tenney, of counsel.
    E. I. Fbankhauser and Frederick A. Bangs, for appellee; Arthur M. Cox and Bichard H. Colby, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the

court.

The Corporation of the Fine Arts Building, hereafter called petitioner, was allowed by the Probate Court its claim for rent, with priority, in Be Estate of Winfield Scott Thurber, deceased. The administrator appealed to the Circuit Court, where petitioner’s claim was disallowed, and from this order petitioner appeals to this court.

Petitioner, as lessor, leased a portion of the Fine Arts Building, on Michigan Boulevard in Chicago, to the Bissell-Cowan Piano Company under a written lease from May 1,1909, to April 30,1919, at a monthly rental of $2,166.67. On May 25, 1910, the Piano Company assigned its lease to the Aeolian Company, which on January 27, 1913, assigned it to Winfield Scott Thurber. Each assignment was with the consent of the petitioner, the landlord, and conditioned upon the continuing liability of the assignor and upon his guaranty of performance by the assignee. Thurber by the last assignment assumed all the obligations of the lease, including the covenant to pay rent. He was engaged in the business of dealing in oil .paintings, water-colors and etchings, and conducted a large and well-known business. The building was specially designed for those engaged in artistic business of this kind, and the tenants were restricted to those interested in artistic work. Thurber subleased those portions of the property he did not actually need for his own purposes, and continued to occupy the premises and carry on his business there until his death, which occurred in September, 1913. He left a will, appointing his widow, Martha C. Thurber, executrix and making her the sole beneficiary of his estate. She resigned as executrix in April, 1916, and the Chicago Title & Trust Company qualified as administrator de bonis non. The lease was never surrendered, but Mrs. Thurber, as executrix, continued to occupy the premises in carrying on the business of the estate and collected rents from the subtenants. On March 29, 1915, the petitioner deeded the premises to the trustees of the estate of Charles A. Chapin, reserving the rent due prior to the assignment, and the claim of petitioner, which is the subject of the controversy before us, is for rent during the time of the occupancy by the executrix and before petitioner had transferred the property, less certain amounts which the executrix paid for rental.

Three claims for rent were filed in the Probate Court; one on November 14, 1913, for $2,166.67, rent for'September, 1913; this was allowed. The second claim was filed September 26, 1914, which was allowed, for $6,225.01, which included a balance of rent for July, 1914, and the rent for August and September, 1914. At the same time another proof of claim was filed for rent due under the lease from October 1, 1914, to the end of the .lease, the total sum being $119,166.67. After hearing on June 24, 1915, this last claim was allowed for $8,042.77, which is on the basis of rent from October 1, 1914, to the time that petitioner deeded the premises to the Chapin estate. The aggregate of these three claims allowed is $16,434.45. No appeal was taken by the executrix as to the first two claims but an appeal was taken from the allowance of the third.

■ On December 24, 1914, petitioner filed a petition in the Probate Court seeking to have priority of payment ordered for the three claims. This petition stated the terms of the lease, the allowance of the two claims above referred to and that they were still unpaid; alleged that the property upon the premises was taken by the executrix and that petitioner was therefore unable to enforce a lien by distress proceedings; that the premises had been used and occupied by her since Thurber’s death; that she had collected rents from the subtenants, but had failed to pay the rent due petitioner. The petition also stated the entry of an order on October 1, 1913, allowing the executrix to continue the business, and referred to an order of November 12, 1913, giving her leave to sell the merchandise; that no report of sale had been made and that the merchandise had not been sold but was still the property of the estate and displayed for sale upon the premises. The petitioner asked that the two claims first above mentioned be declared to be prior liens upon the property, also that the executrix pay the claims for rent for Q§tpber? November and Decernber, 1914, as expenses of administration, to be a first charge against the assets, and that she also be required to pay rent for use and occupation of the premises under the lease as long as they were occupied and controlled by her, and further that she be required to pay to petitioner rents in her possession collected from subtenants. To this the executrix filed a demurrer, and upon hearing the Probate Court on June 24, 1915, entered a decree overruling the demurrer and finding that the allegations of the petition were true and that there was due petitioner the sum of $16,434.45; that petitioner was entitled under the terms of the lease to a prior lien for this amount upon the personal property which was located upon the premises at the death of Thurber. From this decree the executrix appealed to the Circuit Court. This brought two appeals to the Circuit Court, which were heard on one record: (1) The appeal from the order of June 24,1915, allowing rent in the sum of $8,042.77; and (2) the appeal from the order entered on the same date awarding the petitioner priority of payment for the total amount of all three rent items. After hearing the Circuit Court ordered that the claim for "allowance for rent after October. 1, 1914, be denied; that the claim for a lien arising under the lease be denied; and held that the question whether petitioner was entitled to any payment as an expense of the administration of the estate or for use and occupation by the executrix should be left open for determination by the Probate Court.

We see no substantial reason why this claim should not be allowed as a proper expense of administration. Among the undisputed facts supporting this view are these: After the death of Thurber the executrix took possession of the leased premises and continued there to carry on Thurber’s business. She represented to the Probate Court that the business would have been ruined if an attempt had been made to discontinue it or transfer it to a new location. She also collected from subtenants the rents due under the leases from Thurber, and enforced these subleases by the entry of judgments upon them in her name as executrix. Immediately following her appointment she applied to the Probate Court for leave to continue the business of the decedent upon the premises, and on October 1, 1913, obtained an order allowing her to carry on the business for a period of 60 days. Within that time, that is, on November 12, 1913, she secured another order finding that it was necessary to sell all the merchandise of said deceased, appraised at $61,910.50, to pay the debts of the estate, and directing her to sell the same at public or private sale. No sales were made except those made upon the premises, and she continued the business thereon, displaying merchandise and making sales thereof. In the report which she filed in the Probate Court she stated that it was understood that Thurber would occupy only a portion of the building and would sublet the remainder to tenants; that she recognized the liability of the lease and knew of no way to relieve the estate therefrom except by continuing the business, which might result in profit to the estate or enable her to continue the lease and make payments thereunder during the balance of its term; that if the stock of goods were thrown upon the market for immediate sale their peculiar value would be destroyed, which would cause such a sacrifice as to render the estate insolvent; that it was necessary to continue the business on the premises as it had been conducted by Thurber, and for that reason she had petitioned the court for the entry of the order of October 1st allowing her to continue the business. It is not disputed that she so continued to occupy the premises until March 4, 1916, when she was directed to remove therefrom without-prejudice to the landlord’s alleged prior claim and charges. She also paid a part of the rent due under the lease after she took possession.

• The evidence shows that the building owned by petitioner was specially built for the' accommodation of artists and of persons who dealt in paintings or other artistic goods, and that no other kinds of business were allowed therein, and that this gave it a special value in connection with the Thurber business, and gave to his large collection of paintings a special value which would have been seriously impaired if they were withdrawn from these premises; that Thurber had specially equipped the premises covered By his lease in order to conform to the character of his business, expending therefor the sum of $25,000, which would be lost if the executrix should move. The evidence is also undisputed that the rental value of the premises during the time the executrix occupied them was from $35,000 to $37,000 a year, which is a sum considerably larger than the rental reserved in the lease, which was the basis of the allowance by the Probate Court. These facts would indicate that the lease was really an asset of the estate. There is no evidence that there was any loss whatever to the estate by reason of the occupancy by the executrix.

Much of counsel’s briefs and argument concern the question of priority of lien under the provisions of the lease. We do not think it is necessary for us to determine this question. Under the facts the claim falls so readily within the rule that such claims are properly chargeable to expenses of administration, that' we do not feel called upon to pass upon any other grounds for their allowance.

It - is the well-settled law that all expenses of an administrator proper to the conservation of the property of the estate should be allowed as expenses of administration. The peculiar character of the premises in question, both with regard to ¡their location and physical surroundings, makes it evident-tnat removal would have resulted in a decided loss. This was evidently the opinion of the executrix, as indicated by her actions. It has been held many times under similar circumstances that such charges are properly allowable as expenses of administration. Among such cases are Spencer v. World’s Columbian-Exposition, 58 Ill. App. 637, affirmed 163 Ill. 117; White v. More, 54 Ill. App. 606; Field, Leiter & Co. v. Colton, 7 Ill. App. 379; In re Peck, 79 N. Y. App. Div. 296, 80 N. Y. Supp. 76; In re Semple’s Estate, 189 Pa. St. 385; In re Murray’s Estate, 3 Mills (N. Y.) 504, 82 N. Y. Supp. 394; Dudley v. Sanborn, 159 Mass. 185. Section 78, ch. 3, Administration of Estates, Illinois Statutes (J. & A. ¶ 127), provides that the expenses of administration shall be allowed and paid in due course, and section 133 (J. & A. ¶ 182) provides that reasonable costs and charges of administrators in collecting and defending claims of the estate and disposing of the same shall be allowed. We are of the opinion that under these sections, and the decisions of the courts and the facts before us, that the allowance of the claim is properly chargeable as an expense of administration.

We are not in accord with the position of the Circuit Court and counsel for the administrator that the Circuit Court could not pass upon the propriety of this allowance as an expense of administration. The question of the allowance of the claim and its priority was before the Circuit Court as a matter de novo, and regardless of any reasons given by the Probate Court in allowing or disallowing the claim, it was the duty of the Circuit Court to make whatever order it should deem proper. As was stated in Harvey v. Harvey, 87 Ill. 54: “The effect of the appeal was to wipe out the decision of the County Court, and. the matter stood for trial de novo in the Circuit Court. ’ ’

It is not necessary for us to pass upon the so-called contingent claim, meaning the claim for rent for the balance of the entire term of the lease. The only matter before ns is the allowance of the claim for rent during the time the executrix occupied the premises. This view of the matter also disposes of a number of other questions which are argued in the briefs, including the assertion that claims for expenses of administration should be filed within one year, like ordinary debts. Expenses of administration are not debts of the decedent but are debts of the estate.'

The situation was not changed by the assignment of the lease from the executrix to a corporation called the Thurber Art Galleries on March 18, 1914. The evidence convincingly shows that this was merely a paper corporation. All of the stock was held by the executrix, and the only consideration intended to be given for the issuance of the stock was a transfer of goods belonging to the estate. The assignment was signed by Mrs. Thurber, executrix, and the acceptance on behalf of the Art Galleries corporation was signed by her as president. It clearly appears that the corporation was organized for the purpose of preventing other parties from using the name “Thurber” in the art business. There was no order transferring any of the assets of the estate, which would include the lease, to the corporation, and it is clear that there was no actual transfer made. In a report filed in court the executrix states that the corporation was formed for the purpose of protecting the Thurber name, but the report and account deal with the estate as if no éorporation had been formed. There are many other facts which indicate that it was merely a “dummy” corporation and took, in fact, nothing by the purported assignment.

It appears that the Aeolian Company, which was the assignor of the lease to Thurber but remained as a guarantor of Thurber’s agreement to pay rent, has paid to the petitioner the sum of $25,000 in satisfaetion of its guaranty. We do not see how this fact can be of any avail to the executrix. Payment by the Aeolian Company was not for the purpose of relieving the lessee from liability, and whether, in the event of collection by petitioner of the instant claims, a question of the subrogation of the Aeolian Company should arise is a matter in which the administrator is not concerned.

For the reasons above indicated the judgment of the Circuit Court is reversed and the cause remanded to that court with directions to enter a judgment for the Corporation of the Fine Arts Building in the sum of $16,412.41, with directions that it be paid by the administrator before the claims of other creditors, as an expense incurred in the administration of the estate. ,

Reversed and remcmded with directions.


text:
    Kate S. Caruthers, Appellee, v. Joe Macaluso, trading as Joe Macaluso & Company, Appellant.
    Gen. No. 23,615. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Kate S. Caruthers, plaintiff, against Joe Macaluso, trading as Joe Macaluso & Company, defendant, for rent due under a written lease. From, a judgment on a verdict directed for plaintiff for $397.75, defendant appeals.
    Schaffner & Friend, for appellant; Thomas Jones Meek, of counsel.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1752

      —when judgment affirmed for insufficiency of abstract. Where the abstract on an appeal does not inform the Appellate Court what the verdict and judgment were, but merely states that the jury “rendered its verdict, to which verdict defendant excepted,” the judgment may properly be affirmed.
    2. Appeal and ebbob, § 1165*—when nothing for review on appeal. Where no evidence is • introduced in support of an allegation of the affidavit of defense claiming, a recoupment or set-off, and consequently there is no ruling of the court in regard to the competency of the evidence, but the transcript of evidence merely contains what was said between the court and counsel in arguing concerning such matter, there is in regard thereto nothing which can be reviewed on appeal.
    Loesch, Scoeield, Loesch & Bichards, for appellee; G-uerusey Orcutt, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Dora Schoon, Appellee, v. A. H. Welch and H. C. Welch, copartners, trading as Welch & Welch, Appellants.
    Gen. No. 23,623. (Not to be reported in full.)
    Abstract of the Becision.
    1. Tendee, § 15

      —when amount will he ordered paid to adverse party. Where, in an action for goods sold and delivered, defendants make a tender in court of the amount which they concede is due, such amount may he ordered paid to plaintiff and the balance of the demand reserved for future adjudication.
    2. Sales, § 329*—when evidence shows agreement between parties and supports verdict for plaintiff. In an action to recover for goods sold and delivered, evidence examined and held to show an agreement between the parties and to he sufficient to support a verdict for plaintiff, and not to show that there was any consideration for any agreement entered into subsequent to the original contract varying the terms of the latter.
    Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Dora Schoon, plaintiff, against A. H. Welch and H. C. Welch, copartners, trading as Welch & Welch, defendants, for goods sold and delivered. From a judgment for plaintiff for $94.70, defendants appeal.
    Charles A. Butler, for appellants.
    Edward H. Taylor, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Appeal and error, § 1078*—When cross errors necessary. On an appeal from a judgment for plaintiff, where no cross errors are assigned, the Appellate Court will not increase the judgment on plaintiff’s suggestion.


text:
    William C. Slatts, Appellant, v. Estate of David M. Bernstein, Deceased, et al., Appellees.
    Gen. No. 23,635.
    1. Executors and administrators, § 217

      —when judgment against administrator to collect not provable as claim against estate. A demurrer to a petition that an order to discharge administrators with the will annexed be vacated and that a judgment in a replevin suit against administrators to collect be allowed as a claim against the estate is properly sustained where no process was served in the replevin suit on the administrators to collect and no issue was joined between them and plaintiff, in that capacity, but the only service of summons was upon one of such administrators individually, and he filed a plea individually, that no service was had on the other and that the administrators with the will annexed were not made parties to the suit and had no connection therewith.
    2. Executors and administrators, § 78*—when replevin suit does not lie against administrators to collect. The duties and obligations of administrators to collect are strictly limited to those prescribed by statute, and a replevin suit cannot be brought against them.
    Appeal from the Circuit Court of Cook county; the Hon. David P. Hatchett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Edward Marshall, for appellant.
    Johst H. Dally, for appellees.

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

   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal William C. Slatts seeks to have reversed the order of the Circuit Court sustaining a demurrer to his amended petition, which went to the Circuit Court on appeal from the Probate Court.

The material facts seem to be that on February 26, 1906, one Charles H. Seaman began a suit of replevin in the County Court of Cook county against David L. Ettelson and Flora Bernstein, administrators to collect of the estate of David M. Bernstein, deceased, plaintiff claiming that Bernstein in his lifetime had taken a certain diamond ring belonging to plaintiff and withheld possession thereof. The property was not delivered to the sheriff, and on June 3, 1911, judgment for $705 and costs was rendered in favor of the plaintiff and against the administrators to collect, which judgment was subsequently assigned to Slatts.

The same David L. Ettelson and Flora Bernstein were also appointed administrators with the will annexed, and after their service as such filed their final account and were discharged. On May 18, 1916, a petition was filed in the Probate Court praying that the order of discharge of said administrators with the will annexed be vacated and that such judgment in the 'replevin suit be allowed as a claim against the estate. Subsequently the Probate Court sustained a demurrer to the petition, and on appeal to the Circuit Court the demurrer was also sustained.

'A number of sufficient reasons for the correctness of this order are presented. Among these is the fact that the record shows that in the original replevin suit no process was ever served on the administrators to collect and never any issue joined between them in that capacity and the plaintiff, Charles H. Seaman. The only service of summons in that case was upon David L. Ettelson individually, who filed a plea in his individual capacity, and no service whatever was had on Flora Bernstein. Neither were the administrators with the will annexed ever made parties to the suit, nor did they have any connection with it. A complete answer, however, to plaintiff’s claim is that the administrators to collect were not proper subjects of the replevin suit. The powers and duties of such administrators are only those prescribed by statute, and we find nothing therein authorizing them to do more than “to collect and preserve the estate of any such decedent, until probate of his will, or until administration of his estate is granted.” See section 11, ch. 3, Administration Act (J. & A. ¶ 59), also sections 12, 13, 16, 17 and 18 (J. & A. ¶¶ 60, 61, 64, 65, 66). Among the cases holding that the duties and obligations of administrators to collect are strictly limited, and negativing the power to bring suit against them, are Chicago Title & Trust Co. v. Wheeler, 119 Ill. App. 508; Wheeler v. Chicago Title & Trust Co., 217 Ill. 128; In re Estate of Wincox, 186 Ill. 445; State v. Second Judicial Dist. Court, 18 Mont. 481; Jacob Wener & Co. v. Freilich, 268 Ill. 58; People v. Salomon, 184 Ill. 490.

It has been expressly held in Leamon v. McCubbin, 82 Ill. 263, that an heir cannot sue on a note, but must wait until the administrator is appointed; and in Berry & Whitmore Co. v. Dante, 43 App. Cas. (D. C.) 110, it has been specifically held that a creditor of an estate has no right to maintain an action against an administrator to collect, for while the statute providing for the appointment of such collector authorizes him to bring suit, it does not authorize suits to be brought against him. The statute under consideration in that case is the same substantially as our Illinois statute.

For the reasons above indicated the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Mary Dobler, Appellee, v. T. G. O’Connor and The Standard Brewery, Appellants.
    Gen. No. 23,645. (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors, § 228

      —when intoxication of minor shown to he proximate cause of death. In an action by a parent to recover, under section 9 of the Dramshop Act (J. & A. If 4609), for the death of plaintiff’s minor son, evidence examined and held, sufficient to support a finding that deceased was intoxicated and that the intoxication was the proximate cause of his death.
    2. Intoxicating liquors, § 187*—who may have right of action under section 9 of Dramshop Act. The right of action given by section 9 of the Dramshop Act (J. & A. f 4609) is not limited to those persons only who have a legal right to support.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Mary Dobler, plaintiff, against T. G. O’Connor and The Standard Brewery, a corporation, defendants, under section 9 of the Dram Shop Act (J. & A. ¶ 4609), to recover damages for the death of plaintiff’s minor son, alleged to have been caused by intoxication produced by liquors sold the son in the saloon of defendant O’Connor, leased by him from defendant Standard Brewery. From a judgment for plaintiff for $1,350, defendants appeal.
    Castle, Williams, Long & Castle, for appellants.
    Litzinger, Healy & Beid, for appellee; James J. Finn, of counsel.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Intoxicating liquors, § 247 —when amount of damages in action under. Dramshop Act is for jury. In an action under section 9 of the Dramshop Act (J. & A. V 4609) to recover damages for a death caused by intoxication, the question of the amount of damages is for the jury.

4. Intoxicating liquors, § 233*—when substantial damages shown to result to mother from death of son. In an action to recover damages brought by a mother, under section 9 of the Dram-shop Act (J. & A. If 4609), for the death of her son, evidence that deceased was 18 years of age, that for more than a year before his death he had been paid $50 a month as a machinist apprentice, which he gave his mother, who used it in the support of herself and her family, that for several months before his death he assisted his father in running a pool room, receiving no wages, but the profits of the pool room being used for the family support, and that after his death she was obliged to take in washing to support the family, is sufficient to show that the death of the son resulted in substantial damages to plaintiff.


text:
    Kilgore Linotyping Company, Appellee, v. Arthur Shanin and Harry Shanin, Appellants.
    Gen. No. 23,685. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 956

      —what is effect,of striking hill of exceptions from, record. Assignments of error which relate to proceedings on the trial cannot he considered when the bill of exceptions has been stricken from the record.
    2. Appeal and error, § 1713*—when assignments of error deemed waived. Assignments of error which are not briefed or argued by counsel for appellants must be regarded as waived.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Kilgore Linotyping Company, a corporation, plaintiff, against Arthur Shanin and Harry Shanin, defendants, to recover for services rendered. To reverse a judgment for plaintiff for $61.15, defendants appeal.
    Charles S. Jackson, for appellants.
    Meyer Shapiro, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Addison State Bank, Appellee, v. The Gunning System, Appellant.
    Gen. No. 23,700.
    1. Evidence, § 107

      —when evidence of one hearing telephone conversation inadmissible. Evidence of one who claims to have heard a telephone conversation between a bank officer and a third person by listening, after hearing the latter call up the bank, at the receiver held by the latter is insufficient to establish statements alleged to have been made by the officer where the witness does not identify the officer’s voice with certainty.
    2. Bills and notes, § 308*—when joint maker of note not relieved from liability. A statement made to a third person by the cashier of a bank which holds a joint note, that the bank will not hold one of the joint makers, does not relieve the other from liability.
    3. Statute of Frauds, § 10*—when verbal agreement to pay debt of another unenforceable. A verbal agreement to pay the debt of the makers of a note is not enforceable under the Statute of Frauds.
    4. Bills and notes, § 328*—when agreement that one of joint makers will not be held liable on note is no defense. Am understanding that one of the joint makers of a note will not be held liable thereon is no defense to an action on the note, where the agreement does not antedate the taking of the note by plaintiff for a good consideration.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Wolseley & Ball and G. A. Buresh, for appellant.
    W. P. Thornton and Fischer & Fischer, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the' court.

By this appeal the defendant seeks the reversal of a judgment for $2,896 entered against it in the Municipal Court on a directed verdict for the plaintiff.

The suit, begun against both The Gunning System and R. J. Gunning but upon the trial dismissed as to the latter, was brought on a promissory note, a copy of which is as follows:

“$2,500. Chicago, Ill., April 21, 1914.
“Six months after date we promise to pay to the order of ourselves Twenty-five Hundred 00/100 Dollars, at 575 Old Colony Building. Value received with interest at the rate of .6 per cent, per annum after maturity. .
The Gunning System,
R. J. Gunning, President.
“Due 10/21/14.”
Written on back:
“Bay to the order of Addison State Bank,
The Gunning System,
R. J. Gunning, President'.
R. J. Gunning.
(500) 10/5/14.
“Pay to the order of First National Bank, Chicago. All prior endorsements guaranteed. Addison State Bank, 70-1127 Addison, Ill. 70-1127 E. W. Fischer, Cashier. Oct. 3, 1914.
“Says wants to see B. F. Straus in regard this note.”

The defense set up by the affidavit of merits'was that on .April 21, 1914, the note was given to one Benjamin F. Straus, a broker of commercial paper, for the purpose of negotiating*; that plaintiff knew said Straus was such a broker and was not the owner of said note but held it for negotiation; that plaintiff did not pay a valuable consideration for the note nor receive it in the regular course of business, but credited the proceeds thereof on other accounts at the request of said Straus; that neither the Gunning System nor R. J. Gunning received anything for said note, but that it was converted by said Straus to his own use and placed in the bank of plaintiff to the credit of other accounts; that the note was not presented for payment at maturity to the makers thereof and that no protest was made to the indorser, R. J. Gunning, of the nonpayment of said note at maturity; that plaintiff knew that Straus did not pay any part of the money obtained by said note to Gunning or the Gunning System, but plaintiff held said Straus liable for the payment of said note at maturity.

It appears that the note was drawn by one McGay, who prior thereto had been secretary of the Gunning System, and was by him delivered to Straus. From his testimony it is clear that when he left the note with Straus it was indorsed by the makers in blank. Plaintiff took the note on April 26, 1914, paying therefor $2,425.

On the trial defendant attempted to show by the testimony of McGay that, after notice to the defendant by the plaintiff of the due date of the note, McGay called on Straus, who, when informed of such notice, called up the Addison State Bank on the ’phone and talked with Cashier Fischer, directing his attention to the fact that it had been previously understood that Gunning was not to pay this note but that he, Straus, was personally responsible for its payment, and that Fischer replied, “All right, we will not hold Gunning.” It was claimed that McGay, by listening at the receiver held by Straus, heard what was said by them in this telephone conversation. Subsequently and before the trial both Fischer and Straus died. The court refused to admit this testimony, which ruling is urged as error.

Even if this testimony as offered were admissible, which is not conceded, it would not amount to a defense, for several reasons: (1) McGay did not identify Fischer’s voice with certainty—it purported to be Fischer’s voice. (2) Nothing was said as to relieving the defendant, The Cunning System, from liability, but only the joint maker, Cunning. (3) Straus ’ verbal agreement to pay the debt of the makers of the note would not be enforceable under the Statute of Frauds. (4) The alleged previous understanding not to hold Cunning is not fixed at a time prior to the taking of the note by plaintiff for a good consideration.

Defendant’s attempt to relieve itself of liability by the alleged telephonic statements of the cashier, Fischer, could not avail against the proof that plaintiff acquired the note before maturity for a valuable consideration, without any notice of any claim of infirmity.

The judgment is right and is affirmed.

Affirmed.


text:
    Marian S. Tolman, Appellee, v. D. A. K. Steele, Appellant.
    Gen. No. 23,749. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. MAtcbett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Marian S. Tolman, plaintiff, against Dr. D. A. K. Steele, defendant, to recover on a contract for the sale of shares of stock. From a judgment for plaintiff for $2,000, defendant appeals.
    Wheelock, Newby & Mackenzie, for appellant.

      Abstract of the Decision.
    1. Assumpsit, Action of, § 5

      —when assumpsit may not be waived. One who has waived the tort and brought suit in assumpsit cannot, upon the trial, waive the assumpsit and try the case as an action ex delicto.

    2. Assumpsit, Action of, § 88*—when evidence of fraud inadmissible in action of assumpsit. Evidence of fraud and deceit is not made competent by the rule that, where nothing remains to be done under a contract except for the defendant to pay, the plaintiff may at his election declare generally in indebitatus assumpsit.

    3. Assumpsit, Action of, § 88*—when evidence of tort is irrelevant. Where the declaration in an action pleads specially that at defendant's request plaintiff gave him a specified number of shares in a certain corporation for which defendant agreed to pay a certain sum and failed to do so, and also sets up consolidated money counts, the gist of the action is the promise to pay, either under an express or implied contract, and evidence of tort is irrelevant and immaterial.
    4. Assumpsit, Action of, § 88*—when evidence as to false representations in sale of stock is inadmissible. In an action in which the plaintiff pleads specially that at defendant’s request she gave defendant certain shares of stock for which the latter agreed to pay a certain amount and failed to do so, evidence as to defendant’s method in ingratiating himself with plaintiff, as to plaintiff’s belief in defendant’s statements, as to the falsity of these statements and as to what plaintiff’s deceased husband had paid for certain bonds, is inadmissible.
    5. Assumpsit, Action of, § 92*—when instructions on fraud as element of case are erroneous. In an action in which plaintiff pleads specially that at defendant’s request she gave him certain shares of stock for which he agreed to pay a certain amount but failed to do so, it is error to give instructions which tell the jury that elements of the case are defendant’s alleged misrepresentations and fraudulent statements.
    Busch, Liessmann & Roemer, for appellee; Clarence S. Darrow, of counsel.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

6. Assumpsit, Action of, § 92 —when requested, instruction properly refused. In an action in which plaintiff pleads specially that at defendant’s request she gave him certain shares of stock for which he agreed to pay a certain amount, but that he failed to do so, it is not proper to refuse a requested. instruction that if the jury should believe that no agreement was made between the parties as to payment for the stock, it was immaterial if other persons owning stock had received money therefor.

7. Corporations, § 144*—when condition in receipt not contradictory of undertaking to pay for stock. In an action to recover on an agreement alleged to have been made to pay plaintiff a certain amount for certain shares of stock, the receipt provided that the stock is to be held “until enough of the stock in said corporation shall have been secured, when it will be donated to the University of Illinois.” Held, in view of the evidence that the plan was to acquire the stock of the corporation, that all of the stock was to be donated to the University, that a large amount of stock was secured, defendant paying nearly one-half, and that all of the stock was donated to the University, that the condition in the receipt was not necessarily contradictory of an undertaking by defendant to. pay plaintiff for the shares.

8. Corporations, § 151*—what amount recoverable under agreement to purchase stock. In an action to recover on an agreement alleged to have been made for the purchase of plaintiff’s stock, where plaintiff testifies that defendant agreed to pay as much as any other stockholder would receive, the amount recoverable, if the jury believed plaintiff’s evidence, cannot exceed that shown by competent evidence to have been the highest amount paid- for the stock.

9. Pleading, § 248*—when declaration should be amended. Where an action brought against several defendants is dismissed as to all except one, the declaration should be amended accordingly.