text:
    Frances K. Schoden, Appellant, v. John Schaefer et al., Appellees.
    Gen. No. 18,370.
    1. Drainage, § 56

      —when officers of district jointly liable for misapplication of money raised to pay bonds. The treasurer of a drainage district and the drainage commissioners are jointly liable in an action for money had and received brought by holder of bonds issued by the drainage district under R. S. 1911, p. 943, J. & A. ¶ 4340, to recover the face value of the bonds and interest thereon for the misapplication of taxes levied and collected for the payment of such bonds, where the treasurer upon orders of the commissioners paid out such fund for purposes other than the payment of the bonds.
    2. Drainage, § 54

      —when treasurer of district personally liable for. misapplication of funds. Instalments of taxes levied and collected by the drainage commissioners to pay bonds issued by the district are trust funds to be used in the payment of the bonds only, and the treasurer of the drainage district is personally liable for misapplying such funds, though he paid them out on orders of the drainage commissioners.
    3. Drainage, § 56

      —liability of district for misapplication of funds raised to pay bonds. Where officers of a drainage district misapply funds collected to meet payment of bonds issued by the district, the district is not liable for any part of its funds so misapplied. For such funds the bondholders must look solely to the officers who misappropriated them.
    4. Drainage, § 128

      —power to levy an assessment for misapplied funds. Where funds levied and collected for the payment of bonds issued by a drainage district have been misapplied, no second assessment can be levied and collected to pay the same. A second assessment cannot be levied to meet a past indebtedness.
    5. Drainage, § 164

      —when officers of district misapplying illegal taxes collected not liable to refund to taxpayers. Officers of a drainage district misapplying funds raised by an illegal assessment are not liable to the taxpayers to refund the same where the taxpayers voluntarily paid such taxes with full knowledge of all the facts concerning them.
    6. Actions, § 15

      —when demand not necessary before suit. Demand before suit not necessary to maintenance of an action against officers of a drainage district for misapplication of taxes levied and collected to pay bonds issued by the district.
    7. Assumpsit, action of, § 44

      —nature of action for money had and received. Action for money had and received for the use of plaintiff is an equitable action and lies for money had and received by the defendant which in equity and good conscience he should not retain. The law in such case implies a promise to pay although there is no privity between the parties. The alleged contract is fictitious and the right to recover is governed by principles in equity.
    8. Assumpsit, action of, § 53

      —when lies against a person receiving money for the use of another. Where a party receives money for a particular purpose and fails to apply it to that purpose, he is liable in assumpsit for money had and received to the person to whom the money should have been paid.
    9. Officers, § 52

      —when public officer cannot attack validity of bonds in action for misapplication of funds raised to pay the bonds. In an action against the officers of a drainage district to recover against them personally for misapplying funds raised to pay bonds, the officers cannot avoid their liability by alleging and proving the illegality of the bonds.
    10. Officers, § 54

      -—when public officers personally liable for failure to perform duties. Where public officers fail to perform a public duty and thereby cause an injury special and peculiar to such individual, an action will lie against them personally; and if the injury is caused by the joint action of the officers, a joint action may be maintained either in the case of a breach of a contract express or implied or in the violation of a duty whereby a tortious injury is inflicted.

      11. Appeal and error, § 1672

      —when objection for misjoinder of counts is waived. Objection that a special count in a declaration is in tort and that such count cannot be joined with the common counts or any count in assumpsit is waived where such objection does not appear to have been urged in the trial court and the general issue in assumpsit was pleaded to such plea.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.
    Adams, Bobb & Adams, for appellant; G. L. Wire, of counsel.
    Gail E. Deming and Louis J. Pierson, for appellees.

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

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

February 27, 1909, Frances K. Schoden, appellant and owner of certain bonds issued by Drainage District No. 1 of the Town of New Trier, Cook County, Illinois, brought this action against appellees to recover $1,000, the face value of said bonds and interest thereon. The trial of the cause, and of three other similar suits hereinafter named and consolidated by agreement with this case for trial in the lower court was had before the court without a jury and on February 3,1912, the court found the issues in favor of appellees in all the cases and entered judgment accordingly.

The declaration in this case consists of a special count and the common counts in assumpsit, including the count for money had and received by appellees to and for the use of appellant. The special count sets forth, in substance, that on December 27, 1902, the regularly elected, qualified and acting drainage commissioners of said drainage district passed resolutions in due form authorizing and directing the issue of one hundred and twenty bonds of said district in the principal sum of $50 each, payable with six per cent, interest, forty of said bonds to be marked “Series A” and payable December 1, 1903, forty thereof to be marked ‘ ‘ Series B ’ ’ and payable December 1,1914, and forty thereof to be marked “Series C” and payable December 1, 1905, pursuant to an Act of the General Assembly of Illinois in force June 15, 1895, for the purposes of constructing a system of drainage in said district, the principal and interest being payable from the receipts of a special assessment which was levied by said commissioners against the property in said district to pay for said improvements; that appellant is the owner of twenty of said bonds of ^Series C” and the last interest coupons of three dollars each attached to them and which were executed and delivered by said commissioners, February 16, 1903; that thereafter appellee, John Schaefer, was the selected and qualified treasurer of said district and as such treasurer did receive into his hands the moneys levied and collected to pay said bonds; that the other appellees were after the execution and delivery of said bonds the duly elected, qualified and acting drainage commissioners of said district at the times of the receipt of said moneys; that notwithstanding their duty in the premises to apply said moneys to the payment of said bonds, nevertheless said appellees as said commissioners did then and there authorize and direct said appellee, Schaefer, as treasurer, aforesaid, to pay out and expend said moneys to other parties for other purposes than the payment. of the bonds and for which payment said moneys were levied and collected, and said Schaefer, as treasurer, did pay out said moneys to other persons for purposes other than the payment of said bonds, although appellant after the maturity of said bonds demanded and requested appellee to pay said bonds according to the tenor and effect thereof, but appellees have refused to pay the same, or the interest thereon, or any part thereof, etc.

To the common counts appellees filed the general issue in assumpsit. Appellees, Schneider, Laubach and Eoemer, jointly filed the general issue in assumpsit to the first count. Appellee, Schaefer, filed the general issue in assumpsit to the first count and also a special plea, in substance, that at the times alleged in said declaration he was the duly appointed and qualified treasurer of said drainage commissioners and that he received said moneys as such treasurer; that in his said official capacity he paid out said moneys in good faith for the uses and benefit of said drainage district under and in acordance with the order of said duly elected and qualified drainage commissioners, and only upon orders duly signed by their chairman and countersigned by their clerk, and has not now, and had not at the time of the alleged demand upon him, any of said moneys as such treasurer, and did not at any time promise to pay appellant said moneys or any part thereof. The court sustained a demurrer to said special plea, and appellee, Schaefer, elected to stand by his said special plea. Appellees, Schneider, Laubach and Eoemer, then filed a further special plea duly sworn to denying joint liability, on which issue was taken.

The three other suits against said appellees were brought on certain other of said bonds executed by said drainage commissioners, oneb j Helen Sesterhenn, executrix of the last will of Matemus Schaefer, deceased, another by Egidius Meyer, and the third by Anna Huerter, all of which are here on appeal, and are in this court numbered respectively 18,371, 18,372 and 18,373 (supra p. 472), and were all consolidated for hearing by order of this court with the case of appellant, Schoden, and in all three of said causes it is stipulated that the judgment of this court in this, the Schoden case, shall be the judgment of this. court in all of said other three causes.

From the further stipulations of the parties, to said four suits and the evidence offered it clearly appears that the said special count of the declaration was proved and that said drainage district was organized October 2, 1902, under the provisions of the Farm Drainage Act for a system of combined drainage, which provisions begin with paragraph 85 of chapter 42 of Hurd’s Revised Statutes, 1911, p. 901. (J. &. A. If 4485). Under the provisions of said act the commissioners of highways of said township, Fred Schramm, Ignatz Schweiger and Paul Nanzig, acted as drainage commissioners for the district to March 16, 1903, when appellees, Schafer, Schneider and Daubach, were elected and qualified as drainage, commissioners and served as such to March 22,1904. Casper Roemer then succeeded John Schaefer as such commissioner, but died shortly after his election, and on June 4, 1904, appellees, Schaefer, Schneider and Daubach, were the duly elected and qualified drainage commissioners of said district and served as such to and including March 10, 1906, but were not at any other period of time altogether the acting drainage commissioners of the district. Appellee, Schaefer, was the duly elected and acting treasurer of the district from the date of its organization to and including September 29, 1911, and G-angolf Sesterhenn was its cleric and clerk of said township for the same time. On December 4, 1902, by resolution, the drainage commissioners estimated and stated the cost of the entire drainage system as follows:

For clearing and constructing ditches, etc.,. $ 7,200.00
For damages to lands taken for drains...... 800.00
For engineer’s fees and assistant’s compensation ................................ 350.00
For compensation to drainage Commissioners, treasurer and clerk................. 700.00
For incidental expenses................... 200.00
For Court Costs and Attorney fees......... 750.00
Total ...............................$10,000.00

The commissioners caused to be made a classification of the lands in the district and a levy and assessment of $10,000, apportioned as aforesaid, for the purpose of making the said improvement as provided by plans and specifications, $2,000 of which sum was imposed against the commissioners of highways of said township by reason of benefits to the highways thereof, and the other $8,000 was levied and assessed against the landowners of the district. Upon a petition of a majority of the landowners, the levy and assessment of $8,000 was by resolution of the drainage commissioners on December 27, 1902, divided into four equal instalments of $2,000 each, one instalment payable forthwith, and the other three instalments were payable respectively, December 1, 1903, December 1,1904 and December 1, 1905, all drawing six per cent, interest. To secure the deferred instalments three series of bonds were determined lipón and were to be known and described as set forth in appellant’s special count aforesaid, and were payable at the State Bank of Evanston, Cook county, Illinois. The said bonds were prepared accordingly and “Series B” and “Series C” thereof were sold, and appellants in said four causes are conceded to be owners of certain of the bonds sold as follows: Frances K. Schoden, twenty bonds of “Series C,” numbered from 1 to 20 inclusive, of the face value of $1,000; Egidius Meyer, twelve bonds of “Series C,” numbered 29 to 40 inclusive, $600; Helen Sesterhenn, executrix, twenty bonds of “Series B,” numbered 1 to 20 inclusive, $1,000; Anna Huerter, twenty bonds of “Series B,” numbered 21 to 40 inclusive, $1,000. William Kossow was shown to have purchased the other eight bonds of “Series C,” $400, which are also unpaid, but not litigated in said suits. The forty bonds known as “Series A” were never sold by the commissioners, it being considered unnecessary, because so many landowners elected to and did pay in cash all four of the instalments of taxes, so far as levied and assessed against their lands. Of the $4,000 in bonds issued by the drainage district, all of which were issued under. the Act of June 15, 1905 (Hurd’s Statutes, 1911, p. 943, J. & A. ¶ 4340), no part of the principal thereof has ever been paid, as shown by the evidence, and the interest thereon has been paid np to December 1, 1907. The treasurer’s reports in evidence show the receipts of the district to be as follows:

To July, 1906, from land owners on instalment taxes .............................$5,409.73
Up to December, 1908, from the County Collector and treasurer..................... 4,319.21
March 31, 1908, from the Town Collector..... 648.87
March 5, 1903, from the Commissioners of Highways, assessment................... 2,000.00
October 17, 1903, from the Commissioners of
Highways, on sewer pipes................ 1,000.00 December 1, 1904, from the Commissioners of
Highways .............................. 185.00
March 5,1903, from sale of bonds and accrued interest ................................ 4,040.00
September 5, 1903, from Charles Schuette, donation to district..................... 25.00
May 30, 1904, from M. & St. P. R. R. Co., for damage to pipes........................ 6.58
October 21,1904, from Fred Scheuber towards catch basin............................ 20.00
Total.................................$17,654.39

No other levy for any purpose was ever made and collected by the said district, and the said total sum represents the total sum received by said district from all sources up to October 31, 1910. Of said total sum collected by said treasurer the sum of $11,578.01 was collected prior to June 4, 1904, or prior to the time appellees constituted the treasurer and board of drainage commissioners for said district. The total sum spent by the treasurer and former drainage commissioners up to June 4, 1904, was $11,524.05. Of said total sum the following amounts came into the appellee Schaefer’s, hands as treasurer aforesaid from

June 4, 1904, to March 10, 1906, towit:
June 4, 1904, Balance not paid out..........$ 53.96
Oct. 7,1904, to Dec., 1904, 3d instalment taxes 674.91
Oct. 7,1904, to Jan., 1906, 4th instalment taxes 617.46
Jan. 20, 1905, to Nov., 1905 from County Treasurer ............................. 1,006.64
Aug. 3, 1904, to Aug. 7, 1904, 2d instalment taxes .................................. 553.55
Dec. 1, 1904, from Highway Commissioners.. 185.00
Oct. 21, 1904, from Fred Scheuber towards catch basin............................ 20.00
Total ..................................$3,111.52

During the same time, from June 4, 1904, to March 10, 1906, appellee, Schaefer, as treasurer, paid out, on order of the commissioners, the following amounts:

From October 8,1904, to November 5,1905, to contractors for constructing drains, etc... .$1,558.03
March 11, 1905, Hoffman Bros., lumber...... 6.72
Jan. 5, 1905, to parties for cleaning ditch, Gr. P. Av.......................... 31.00
Jan. 27,1906, F. A. Windes as engineer...... 184.27
Jan. 18,1906, R. W. Boddinghouse, as attorney 35.00
Jan. 3 to March 11,1905, officers fees., Commissioners, clerk and treasurer............... 262.49
Dec. 8, 1905, Philip Doetch, Committee member .................................... .ffi.00
Jan. 20, 1905, John Hanberg, County Treasurer, percentage........................ 7.70
Jan. 3, 1905, and January, 1906, C. H. Bush, printing reports ........................ 22.00
Jan. 3,1905, and April 1,1905, Jacob Roemer, for house of election..................... 7.50
Dec. 1, 1904, and Jan. 18, 1906, to owners of $4,000 of bonds, interest for 1904 and 1905.. 480.00
Total ..................................$2,609.71

There was received by appellee, Schaefer, as treasurer of said district after March 10,1906, the following accounts:

March 11, 1906, Balance not paid out........$ 501.81
Sept. 18, 1907, from land owners, 4th instalment taxes ............................. 181.66
Sept. 18,1907, from County treasurer........ 350.00
Dec. 23, 1907, from County treasurer........ 470.95
March 31, 1908, from Town Collector........ 648.87
Dec. 21, 1908, from County treasurer........ 1,367.34
Total ..................................$3,520.63

Subsequent to March 10, 1906, appellee, Schaefer, as treasurer of said district, paid out the following amounts on order of commissioners other than appellee commissioners towit:

July 16, 1906, to Aug. 16, 1910, for cleaning and repairing drains, etc.................$ 477.40
Oct. 30, 1909, paid for bridge on private lane 40.37 Dec. 12, 1906, to Oct. 30, 1909, Officers of District and bond for officer................. 332.10
Dec. 31, 1907, C. H. Bush for printing reports 10.00 Jan. 26,1907, to March 31,1910, for attorneys 687.50
Nov. and Dec., 1906, paid engineers......... 30.00
Sept. 21,1907, and Jan. 9,1909, paid on $4,000 of bonds, interest for 1906 and 1907........ 480.00
Total ..................................$2,057.37
Oct. 31, 1910, Balance in treasury...........$1,463.26

The several amounts collected by appellee, Schaefer, as treasurer, from the county treasurer, the “town collector” and from the commissioners of highways, except as above shown, are not designated by the treasurer’s reports, and, therefore, it cannot be ascertained definitely from the evidence in this record how much thereof, if any, represents collections from the third and fourth instalments of taxes that were evidently levied for the purpose of paying the $4,000 of bonds and the interest thereon. For that reason also we cannot ascertain definitely how much of the third and fourth instalment taxes were received hy said treasurer prior to June 4, 1904, or subsequent to March 10, .1906, or between those dates. It may be assumed, however, that the $53.96 balance in the treasury, June 4, 1904, belonged to those funds as $1,184.60 of the third and fourth instalment taxes had been collected prior thereto and only the sum of $240 interest was paid on the bonds. The showing then as made by this record without contradiction is that during the whole time appellees were serving together as drainage commissioners and treasurer of said drainage district, June 4, 1904, to March 10, 1906, the treasurer received $1,346.33 of the taxes levied and collected to pay said bonds and only applied thereon the sum of $480 as interest for 1904 and 1905, leaving a balance of $866.33 that should have been applied to the payment of the principal thereof. Assuming that the balance of $501.81 in the treasury March 11, 1906, belongs exclusively to the funds collected to pay the bonds, it is clear that appellees by their joint action misapplied the sum of $364.52, and also that part of the $1,006.64 received by them from the county treasurer, if any, that was collected by the said treasurer on the third and fourth instalment taxes levied to pay said bonds. The evidence further shows that of the $10,000 estimated, appropriated and levied as the total costs to the district for the construction of the drains, etc., and for the expenses connected therewith, every item of that cost and expense, as above itemized by the commissioners, was overpaid prior to June 4, 1904.

The court properly held as legal propositions that the instalments of taxes levied and collected for the payment of the bonds held by appellant were trust funds to be used in payment of said bonds only; that appellee, Schaefer, became personally liable to appellant for misapplying said funds, although he paid them out by order of the drainage commissioners; and that the commissioners of the district were also liable to appellant.in a proper action for wrongfully ordering their said treasurer to pay out said funds on other obligations or claims against the district. The court also held that appellees were not jointly liable, and that an action of assumpsit will not lie against appellees jointly for the recovery by appellant of the funds so misappropriated. To the latter holdings of the court we cannot assent. It is the law, as argued by appellees, that in actions ex contractu the burden is on the plaintiff to establish Ms case of joint liability against all the defendants when joint liability is denied. Griffith v. Furry, 30 Ill. 251; Cassady v. Trustees of Schools, 105 Ill. 560; United Workmen v. Zuhlke, 129 Ill. 298; Kingsland v. Koeppe, 137 Ill. 344; Powell Co. v. Finn, 198 Ill. 567.

Appellees’ counsel also contend that the first count of the declaration is in tort and that such a count cannot be joined with the common counts or any count in assumpsit, and that, therefore, appellant cannot recover in this case. No such contention appears to have been made in the lower court, and, besides, appellees pleaded the general issue in assumpsit to the special count, and thereby have waived the right to insist that said count is in tort, or that there is a misjoinder of counts. We deem it unnecessary to further consider the first count of the declaration, as we predicate our holding that appellant was entitled to a judgment in this case on the evidence under the common counts and particularly under the count for money had and received by appellees to the use of appellant. Where a party receives money for a particular purpose and fails to apply it to that purpose he is liable in assumpsit for money had and received to the person to whom the money should have been paid. Parker v. Fisher, Fuller & Co. 39 Ill. 164.

The action for money had and received for the use of the plaintiff is an equitable action and lies for money had and received by the defendant, which in equity and good conscience he should not retain, but should pay to the plaintiff. The right of recovery in such action depends upon two things: First, that the defendant has actually received the money; and, second, that in equity and good conscience he should pay it to the plaintiff. The law in such case implies a promise to pay, although there is no privity between the parties. The alleged contract is fictitious and the right of recovery is governed by principles of equity. Morris v. Jamieson, 99 Ill. App. 32; Richolson v. Moloney, 195 Ill. 575; Donovan v. Purtell, 216 Ill. 629; Highway Commissioners v. City of Bloomington, 253 Ill. 164.

It has been frequently said by appellees in their argument that all the said funds were received by appellee, Schaefer, as treasurer, and that the other appellees, the commissioners, received no money, and, therefore, there can be no action for money had and received against them. The treasurer was appointed by the appellees, the commissioners, and he received the money for the drainage commissioners, whose officer he was, and to and for the use of the bondholders. The treasurer and the commissioners held and controlled the funds, and the bond holders could not get them except by the order of the commissioners and by payment on such orders by the treasurer, i. e., without the joint action of the commissioners and the treasurer. The commissioners had the right and the power at all times, and it was their duty to control the funds in the treasurer’s hands and to direct him to pay them out for the purposes for which they were received, and the treasurer could not legally pay them out, except by such direction. By their concerted acts the commissioners and the treasurer diverted funds received for the use of appellant and paid them to others. Hence, they are jointly liable to her for the amount so by him diverted. Paragraphs 89a, 89b, 105 and 112, chapter 42, Hurd’s Statutes 1911 (J. & A. ¶¶ 4490, 4491, 4507, 4514); Lovingston v. Board of Trustees, 99 Ill. 564-572; City of Springfield v. Edwards, 84 Ill. 626-633; Law v. People, 87 Ill. 385-399; Barton v. Minnie Creek Drain. Dist., 112 Ill. App. 640; Russell v. Tate, 52 Ark. 541; City of Blair v. Lantry, 21 Neb. 247.

It is suggested that the liability of appellee, Schaefer, is on his official bond, and that the other appellees may be liable in a proper action in tort. The one question we are to decide is whether or not they are jointly liable in this action, and it is not an answer thereto to determine that they are liable in other actions. Where public officers fail to perform a public duty and thereby cause an injury special and peculiar to such individual, an action will lie against them personally. Gage v. Springer, 211 Ill. 200. If the injury is caused by the joint action of the officers, a joint action may be maintained either in the case of a breach of contract expressed or implied, or in the violation of a duty whereby a tortious injury is inflicted. Appellees were trustees in the management and application of the funds levied and collected to pay the bonds in question and their misapplication of them was a breach of trust and a breach of their implied contract to properly apply them, and amounted to a conversion of the funds. Such misapplication or conversion could not have happened, or did not happen, otherwise than by their joint action. The statute required them to receive and pay out those funds only for the specific purposes for which they were collected in case the bonds were not registered with the State auditor, as happened in this case, as is further disclosed by paragraphs 194 and 197 of the Act of 1895, under which the bonds were issued. Chapter 42, Hurd’s Rev. St. 1911, pp. 934, 935, (J. & A. ¶¶ 4572, 4575).

It was the treasurer’s duty to so receive and apply said funds, although ordered by the commissioners to pay them out for other valuable services to the district. The court, therefore, properly sustained the demurrer to his special plea. City of East St. Louis v. Flannigen, 34 Ill. App. 596; People v. Hummel, 215 Ill. 71.

It is also suggested that suit should have been brought against the drainage district as it appears that there were funds in the hands of its treasurer subject to the payment of the bonds when this suit was broug’ht. There is no doubt that a suit may be maintained against the municipal corporation for whatever of such funds may be in its treasury. Conway v. City of Chicago, 237 Ill. 128; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36.

No such suit, however, for such funds already misapplied and not in the treasury of the district can be maintained against it. Such funds having been levied and collected for the payment of the bonds in question, no second assessment can be levied and collected to pay the same. A second assessment cannot be levied to meet a past indebtedness. The drainage district is, therefore, not liable for any part of the funds misapplied by appellees. For those funds appellant must look solely to the officers who misappropriated them. Ahrens v. Minnie Creek Drain. Dist., 170 Ill. 262; Drainage Commissioners v. Kinney, 233 Ill. 67; Barton v. Minnie Creek Drain. Dist., 112 Ill. App. 640; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36.

It is finally argued by appellees that the bonds in question are absolutely void, because the meetings of the drainage eommisioners to organize the district, to classify the lands, to levy the assessments and to authorize the bonds were all held outside of the boundaries of the district, and that, therefore, appellant cannot recover. This suit is not on the bonds, but is a personal action against appellees for money had and received by them to appellant’s use. Appellees received the funds in question under the statute, for the sole purpose of paying the bonds in question. They cannot avoid their liability to appellant by alleging or proving the illegality of the bonds. Boss v. Curtiss, 31 N. Y. 606; Morris v. State, 47 Tex. 583; Highway Commissioners v. City of Bloomington, 253 Ill. 164.

There is no liability of appellees to refund or to repay to any taxpayers of the district any of the taxes or assessments voluntarily paid by them no matter how illegal the taxes collected may have been. The evidence tends to show the taxes in question were paid voluntarily by the taxpayers, and such payments must at any rate be presumed to have been made voluntarily until the contrary is made to appear. The taxes were spent for the benefit of the district and could not have been legally refunded. It is the well established law of this State that money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered. Also, that one who has voluntarily paid to the collector or to the treasurer of a municipality a void tax with full knowledge of all the facts concerning the same cannot recover such tax by set-off or otherwise. Yates v. Royal Ins. Co., 200 Ill. 202; Otis v. People, 196 Ill. 542. See also Elston v. City of Chicago, 40 Ill. 514; Falls v. City of Cairo, 58 Ill. 403; Swanston v. Ijams, 63 Ill. 165, a suit to recover drainage taxes illegally assessed. City of Chicago v. McGovern, 226 Ill. 403; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535.

From whatever angle the matter is viewed appellant was legally and equitably entitled to receive the funds collected by appellees that had been levied for the payment of hér bonds, and it was against equity and good conscience to withhold them from her. Appellees, however, are only jointly liable to appellant for the taxes received by them for the payment of her bonds and misapplied by their joint action. They are not jointly liable for any such funds misapplied prior to June 4, 1904, or subsequent to March 10, 1906. Appellant was also entitled to recover interest at the rate of five per cent, from December 1, 1907, to which time the interest thereon had been paid by the district, and no demand by her before suit was necessary to the maintenance of her action. Chapman v. Burt, 77 Ill. 337; Smyth v. Stoddard, 203 Ill. 424; Highway Commissioners v. City of Bloomington, 253 Ill. 164.

The judgment is reversed and, as the entire liability of appellees is not fully disclosed by the record, the cause is remanded. Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Helen Sesterhenn, Administratrix of the estate of M. Schaefer, Appellant, v. Joseph Schneider et al., Appellees. Egidius Meyer, Appellant, v. John Schaefer et al., Appellees. Anna Huerter, Appellant, v. John Schaefer et al., Appellees.
    Gen. No. 18,371. Gen. No. 18,372. Gen. No. 18,373.
    (Not to be reported in full.)
    Appeals from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.
    Statement of the Cases.
    . These eases were consolidated for hearing in this court with case No. 18,370, Schoden v. Schaefer, ante, p. 456, and decision therein controls.
    Adams, Bobb & Adams, for appellants; G. L. Wire, of counsel.
    Gail E. Deming and Louis J. Pierson, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Frank M. McKey, Appellee, v. William Emanuel et al., Appellants.
    Gen. No. 18,432.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 140

      —when freehold involved. A bill in equity by a trustee in bankruptcy to set aside a conveyance from the bankrupt to his wife involves a freehold (Daly v. Kohn, 230 Ill. 436 followed).
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Transferred to Supreme Court.
    Opinion filed January 3, 1914.
    Statement of the Case.
    Bill by Frank M. McKey, trustee in bankruptcy of the estate of William Emanuel, against William Emanuel and Fannie Emanuel, his wife, to set aside an alleged fraudulent conveyance by the defendant William Emanuel to the defendant Fannie Emanuel of certain real estate. The bill prayed that the property be adjudged to be the property of William Emanuel and that said Fannie Emanuel be ordered to convey the property to the complainant, as trustee, and that in case of her failure to do so a master in chancery or some other person be appointed to make the conveyance. From a decree granting the relief prayed, defendants appeal.
    S. A. McElmee, for appellants.
    James D. Power, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.


author: Mr. Presiding Justice Baker

text:
    George E. Hibbard, Appellant, v. John B. Mallers, Jr., Appellee.
    Gen. No. 18,358.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 358

      —when decree should not contain a finding of facts. A finding of facts has no proper place in a decree dismissing a bill for want of equity.
    2. Appeal and error, § 1766

      —when a decree erroneously containing a statement of facts will he affirmed on modification. On appeal from a decree dismissing for want of equity a bill filed by a partner against a copartner, which alleged a dissolution of the partnership and prayed for an accounting, etc., the decree erroneously containing a statement of facts was affirmed upon being modified by striking out the statement of facts, it appearing independently from the statement of facts that in the opinion of the chancellor the copartnership was not dissolved.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in this court at the March term, 1912.
    Modified and affirmed.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Bill by George Hibbard against John B. Mailers, Jr., alleging that complainant and defendant were co-partners and that the copartnership had been dissolved by the act and declaration of defendant. The bill prayed for an accounting, the appointment of a.receiver and an injunction. Defendant’s answer denied that the copartnership had been dissolved. From a decree dismissing the bill for want of equity, complainant appeals.
    Pringle & Fearing and Alfred J. Parker, for appellant.
    Hugh S. Pettis, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    George Thompson and Son Company, Appellant, v. The Holtzer-Cabot Electric Company, Appellee.
    Gen. No. 18,393.

      (Not to be reported in full.)
    Abstract of the Decision.
    Buildinq and construction contracts, § 65

      —lohen decision of architect conclusive. In an action by a contractor to recover on a quantum, meruit for work done in excavating and in constructing brick walls of a certain building where his contract was terminated by his refusal to obey the orders of the architect to reconstruct portions of the walls, a directed verdict for plaintifi for a balance after deducting from the contract price the cost to complete the work by another contractor, held not error, the contract making the architect’s decision final and there being no evidence that he acted fraudulently.
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Action by George Thompson and Son Company, a corporation, against The Holtzer-Cabot Electric Company, a corporation, to recover on a qucmtum meruit for work done under a contract for excavation and the construction of brick walls of a certain building. From a judgment entered on a directed verdict for plaintiff for $759.17, plaintiff appeals.
    George H. Meyer, for appellant.
    Bither, Goff & Francis, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Charles Mulvey Manufacturing Company et al., Appellees, v. Frederick W. McKinney et al. On Appeal of Frederick W. McKinney, Appellant.
    Gen. No. 18,430.
    1. Landlord and tenant, § 470

      —when equity will relieve against forfeiture for nonpayment of rent. One of the familiar instances of equitable relief is its prevention of a landlord’s attempted termination of a lease for the nonpayment of rent. Equity will relieve in such cases where compensation can he made and money and interest are compensation, and such relief will be afforded although the lessor may in ejectment have recovered the possession of the premises.
    2. Landlord and tenant, § 504

      —when judgment entered against tenant for possession does not conclude him from relief in equity. In an action of ejectment or the statutory action of unlawful detainer the right of possession alone is involved, and the judgment in such action does not conclude the lessee from relief in equity.
    3. Landlord and tenant, § 471

      —when injunction will issue to restrain enforcement of forfeiture for nonpayment of rent. On bill for relief against a forfeiture for nonpayment of rent, if there is no special reason to the contrary, an injunction thereupon goes to restrain further steps to enforce the forfeiture.
    4. Landlord and tenant, § 471

      —what essential on hill for relief against forfeiture for nonpayment of rent. On bill in equity for relief against a forfeiture for nonpayment of rent, all arrears of rent, interest and costs must be paid or tendered.
    5. Landlord and tenant, § 119

      —effect of assignment of lease or alienation of the premises. The right of a lessee is not affected by the lessor’s assignment of the lease and alienation of the premises; the alienee succeeds to the right accruing subsequent to the alienation but is subject to all the rights and equities of the lessee against the lessor.
    6. Landlord and tenant, § 123

      —when payment of rent in advance is good as against subsequent assignee of lessor. An advancement by the lessee for a term of years to the lessor of a certain sum under an agreement that the amount so advanced should apply on the last year’s rent is a good payment of that year’s rent as against an assignee of the lessor who took the assignment while the lessee was in open possession.
    7. Landlord and tenant, § 51

      —when antecedent parol agreement admissible. On bill filed by a lessee against the assignee of the lessor to redeem from a forfeiture for the nonpayment of rent, evidence showing that the lessor orally agreed before the execution of the lease that in case the lessee and others should be required to pay a certain promissory note given by them to the lessor to enable him to raise money for a building, the amount so paid should apply on the rent thereafter accruing, held admissible as being an antecedent parol agreement collateral to the lease.
    8. Evidence, § 350

      —when proof of oral separate agreement not a violation of parol evidence rule. The rule that parol evidence is inadmissible to vary the terms of a written instrument is not violated by allowing testimony of a distinct, valid, collateral, contemporaneous or antecedent agreement between the parties which was not reduced to writing where the same is not in conflict with the terms of the written instrument.
    9. Notice, § 17

      —when assignee of lessor charged with notice of tenant’s rights. Assignee of lessor takes subject to the rights of the lessee where the lessee was in actual and visible possession at and before the time of the assignment of the lease, such possession being constructive notice to him of whatever rights the possessor then had in the premises.
    10. Appear and error, § 866

      —when abstract of record insufficient. A printed copy of the record is in no sense an abstract of the record.
    11. Costs, § 74

      —when appellant will not be allowed costs for printing abstract not conforming to rules of court. Where what is called an abstract of the record is a copy of the record and in no sense an abstract thereof, appellant will not be allowed costs for printing same.
    Appeal from the Superior Court of Cook county; the Hon. Richabd E. Btjeke, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed January 12, 1914.
    Charles Scribner Eaton, for appellant Frederick W. McKinney.
    Eugene Stewart, for appellees.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

The evidence in this case is voluminous. The abstract contains more than a thousand printed pages and there is in the briefs of counsel no proper statement of facts. We shall not attempt to state in detail the various contentions of the parties nor the evidence relied on to support such contentions'. The chancellor heard the witnesses and we shall base our decision on his findings of fact except where, in our opinion, a finding is not supported by the evidence'.

The owners of certain real estate' demised portions thereof to Albert L. Berry by ground leases made on and prior to April 1,,1907, for terms ending in 1937. April 29, 1907, Berry entered into a contract in writing, which began with a recital that it was made by Berry of the first part and the complainants in the bill, appellees here, of the second part, but was signed only by Berry, the complainant corporation, W. H. Gervais and W. H. Barry. By this agreement Berry agreed to lease a portion of the land so leased to him to the parties of the second part for a term of ten years from June 1, 1907, at a rental of $2,000 per year, payable in monthly instalments of $166.66 each -on the fifth day of each month, and to erect a two-story building containing an area of 8,800 square feet on the premises. The parties of' the second part agreed to pay to Berry $2,000 in instalments, the last instalment to be paid when the building was ready for occupancy, which sum, the writing provided, should be applied in payment of the rent for the tenth year of the term unless Berry desired to apply it on the rent for some prior year. The writing further provided that for the $2,000 Berry should give his note bearing interest at five per cent., “up to the beginning of the year which it shall apply as payment of the rent,” and also that said note should be in the nature of a receipt for the year’s rent. The Mulvey Company advanced to Berry $2,000 and received from him the following receipt:

“Chicago, July 1, 1907.
Received of the Chas. Mulvey Mfg. Co. two thousand dollars for rent of Building 1335 35th street, Chicago, same being rent in advance for said premises as described between Chas. Mulvey Mfg. Co. et al. from Albert L. Berry.
Albert L. Berry.”

The writing further provided that the parties of the second part should issue to Berry the note of the Mulvey Manufacturing Company for $4,000, payable "in three years, indorsed by W. B. and L. L. Gervais, W. H. and P. E. Barry and E. L. Beckerleg, bearing interest at six per cent., which note, the writing stated, was given for the purpose of assisting Berry to secure funds for the erection of said building. A note made and indorsed as provided in the agreement, dated July I, 1907, and payable three years after date, with interest at six per cent., was delivered to Berry. It later came into the hands of appellant McKinney, who brought suit on it against the maker and indorsers July 15, 1910.

The bill alleged, the evidence proved and the court found that prior to the assignment of the lease by Berry to McKinney, Berry orally promised the complainants that in case they or any one of them should be required to pay said note, the amount so paid should apply on rent under said lease coming due after three years from the date thereof. Berry assigned the lease to McKinney April 17, 1908. The Charles Mulvey Manufacturing Company then was, and for six months or longer had been, in the occupancy and possession of the demised premises. The Mulvey Company paid the rent that fell due prior to August 5, 1908, and for the rent that became due that day sent to McKinney, August 7 a check, which he refused to receive. The lease contains the usual provisions giving the lessor or his assigns the right to declare a forfeiture for nonpayment of rent, and McKinney, August 6, elected to terminate the lease and gave the Mulvey Company notice of such election August 10. McKinney brought his action of unlawful detainer in the Municipal Court against the Mulvey Company, had judgment for possession, which was affirmed by Branch B. of this court. McKinney v. Mulvey Mfg. Co., 157 Ill. App. 339.

In an action of ejectment or the statutory action of unlawful detainer the right of possession alone is involved, and the judgment in such action does not conclude the lessee from relief in equity.

One of the most familiar instances of equitable relief is its prevention of a landlord’s attempted termination of a lease for the nonpayment of rent. In 4 Yiner’s Abr., chap. V., pi. 31, p. 406, it was held that relief may be granted for breach of covenant to pay rent, although the rent is a rack rent equal to the value of the land. The court held that in this and the like cases the clause of re-entry is in the nature of a penalty, and therefore relievable in a court of equity upon making satisfaction to the injured party. In 1 Pomeroy’s Eq. Jurisprudence, sec. 453, it is said:

“Where a lease contains a condition that the lessor may re-enter and put an end to the lessee’s estate, or even that the lease shall be void, upon the lessee’s failure to pay the rent at the time specified, it is well-settled that a court of equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, whether the lessee has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as a security for the payment of money.”

To the same effect are Taylor on Landl. & Ten., sec. 495; 2 Story, Eq. Juris., sec. 1315. See note to Maginnis v. Knickerbocker Ice Co., 112 Wis. 385, 69 L. R. A. 833.

Equity will relieve where compensation can be made and money and interest are compensation. In equity, relief is afforded although the lessor may in ejectment have recovered the possession of the premises. Wadman v. Calcraft, 10 Ves. 67; Davis v. West, 12 Ves. 475; Hill v. Barclay, 16 Ves. 402. The right of the lessee is not affected by the lessor’s assignment of the lease and alienation of the premises. The alienee succeeds to the right accruing subsequent to the alienation, but is subject to all the rights and equities of the lessee against the lessor. Abrams v. Watson, 59 Ala. 524.

On another ground McKinney must he held to have taken an assignment of the lease and conveyance of the interest of Berry in the premises subject to the rights and interest of the Mulvey Company. That company was in the actual, open and visible possession and occupancy of the premises at and before the time that the lease was assigned or the land conveyed to McKinney, and such possession was constructive notice to him of whatever rights the possessor then had in the premises. Carr v. Brennan, 166 Ill. 108; Farmers’ Nat. Bank of Bushnell v. Sperling, 113 Ill. 273; Coari v. Olsen, 91 Ill. 273.

In the case last cited it was said, p. 280: “But, although other courts have held the doctrine of notice by possession as subject to being materially modified by circumstances, this court has uniformly held that actual occupancy is equal to the record of the deed or other instrument under which the occupant claims, and a purchaser is bound to inquire by what right or title he holds. The purchaser takes the premises subject to that title or interest, whatever it may be.”

The bill of complaint is, to say the least, not in the usual form of a bill in equity for relief against a forfeiture of a lease for nonpayment of rent, or, as it is usually called, a bill to redeem; but we think it may be regarded as such a bill. On such a bill, “all arrears of rent, interest and costs must be paid or tendered. If there be no special reason to the contrary, an injunction thereupon goes to restrain further steps to enforce the forfeiture.” Sheets v. Selden, 7 Wall. (U. S.) 416, 421.

We do not regard it as material that neither the agreement nor the lease was executed by all the complainants. The Mulvey Company was the occupant of the demised premises and the real party in interest in this controversy. If it is entitled to relief, then relief should be granted to it, although some of the other complainants may not be entitled to any relief. Appellant can have no just cause of complaint if this course is adopted. The question in the case is as to his rights as the assignee and alienee of Berry, and this depends on the covenants or promises of Berry.

We are- unable to agree with the chancellor that the Mulvey Company was entitled to immediate credit for the $2,000 advanced by it to Berry, July 1, 1907. The agreement was that the $2,000 should be applied in payment of the rent for the tenth year of the term unless Berry elected to apply it on an earlier year. Berry made no such election and the chancellor had no power to apply the money in payment of the rent for any year before the tenth. The agreement that said sum should be applied in payment of the rent for the tenth year and that it should bear interest at five per cent, until the beginning of that year was binding on McKinney. If a lessee in a lease of a house for a year pays the year’s rent, takes possession, and the lessor afterwards assigns the lease, no one would claim that the assignee could disregard the payment of rent to the lessor and compel the lessee to pay rent again. Nor would the rule be different if in the case supposed the lessee paid to the lessor the rent for the last month only. We are unable to perceive any ground on.which it can be held that a payment of the last month’s rent by the lessee in possession of the premises is a good payment as against a subsequent assignee of the lease, and that an advance of the money to the lessor by the lessee under an agreement that the amount so advanced should apply on the last month’s rent is not, as against the assignee, a good payment of that month’s rent.

The note for $4,000 was an accommodation note and the maker and indorsers have therefore no defense to it. It is held by McKinney and he has put it in suit. Berry has filed a voluntary petition in bankruptcy and it is certain that the maker or indorsers will have to pay the note. Berry, as has been said, orally agreed with the maker and indorsers before the lease was made, that if any one of them had to pay the note the amount so paid should apply on rent under the lease coming due after three years from its date. Appellant contends that testimony of said oral promise was inadmissible because it tends to vary and contradict the terms of the written lease. No rule is better settled than that parol testimony cannot be received to vary, contradict, add to or take from the terms of a valid written instrument. But this rule is not violated by allowing testimony of a distinct, valid, collateral, contemporaneous or antecedent agreement between the parties which was not reduced to writing, where the same is not in conflict with the terms of the written instrument. In discussing this rule, Taylor in his treatise on the Law of Evidence says, section 1038:

“The rule does not prevent parties to a written instrument from proving that either contemporaneously or as a preliminary measure they had entered into a distinct oral agreement on some collateral matter. Still less, as will presently be shown, does the rule exclude evidence of an oral agreement which constitutes a condition on which the performance of the written agreement is to depend.”

The same author says, sections 1049-1157:

“It is almost superfluous to observe that the rule is not infringed by proof of any collateral parol agreement which does not interfere with the terms of the written contract, though it may relate to the same subject matter.”

See also Greenleaf, sec. 284a; Lindley v. Lacey, 17 C. B. N. S. 578, 112 E. C. L. 578; Welz v. Rhodius, 87 Ind. 1, where both the English and American authorities are cited. That such an antecedent oral agreement was made in this case was testified by Berry, Gervais and Barry, and not disputed. The chancellor found in effect that the antecedent parol agreement' was a separate agreement, collateral only to the lease, and that proof of such agreement did not contradict or modify any provision of the lease, or affect any right or obligation created by it, and in such view we concur. If Berry was still the landlord and the $4,000 note was held by a third party, under Berry’s agreement with the Mulvey Company he would be bound, if that company was compelled to pay the note, to apply the amount so paid on the rent falling due on the lease after August 1, 1910. The fact that McKinney is both the assignee of the lease and the holder of the note cannot affect the rights of the Mulvey Company against him as the assignee of the lease, nor his right as such assignee of the lease and holder of the note as against that company. McKinney is entitled to collect the amount of the $4,000 note from the Mulvey Company, but is bound to apply the amount so collected on the rent falling due after August 1, 1910.

Appellant has filed no abstract of the record, in accordance with the rule and practice of this court. That which purports to be one is in no sense an abstract of the record but is a printed copy of the record. The agreement for a lease and the lease from Berry to the Mulvey Company are printed in full three times. The questions asked and the answers of the witnesses are also printed in full, as are the arguments and objections of counsel, which have no proper place in a certificate of evidence. Appellant will therefore be allowed no costs for printing what is called an abstract in the case. Kelly v. Kellogg, 79 Ill. 477-482; Richardson v. Cassidy, 63 Ill. App. 482.

The decree of the Superior Court will be reversed and the cause remanded to that court with directions to refer the cause to a master to take an account of what is due to McKinney for rent and interest on the lease from Berry to the Mulvey Manufaoturing Company and others in the bill of complaint mentioned,. allowing interest' on each instalment of rent -from the time it came due at five per cent, per annum, and on the note for $4,000, also mentioned in the bill of complaint, for principal and interest at six per cent, per annum, and the amount of McKinney’s costs in the forcible detainer suit mentioned in the bill both in the Municipal Court and in this court, and for his costs in the suit on the $4,000 note and for his costs in this case both in the Superior Court and in this court, and for his costs in the suit brought in the Municipal Court for rent for the months of May and June, 1908, and what shall be found to be due on the note for $4,000 is to be deducted out of the amount due him for rent, interest and costs. On the coming in and approval of the report the court will order and decree that the complainants, or some one of them, pay to McKinney within sixty days from the entry of such decree the amount found to be due to him on said $4,000 note, and also the balance due him for rent, interest and costs after deducting therefrom the amount due to him on said $4,000 note, and that on such payments being made or tendered and the money paid into court if the tender be refused, an injunction go to restrain said McKinney from taking any further steps to enforce the forfeiture of said lease or the payment of said $4,000 note, and further ordering that he deliver to said Mulvey Manufacturing Company, or to such person as it shall direct, said $4,000 note, free and clear of all incumbrance done by him, or any person claiming by, from or under him, and satisfy and discharge of record the judgments for costs above mentioned. And the court will further by its decree adjudge and declare that the said Mulvey Manufacturing Company is entitled to be credited by said McKinney with the sum of $2,000 with interest from July 1, 1907, at five per cent, per annum for the money paid and advanced by said company to Albert L. Berry July 1, 1907, the same to be applied by said McKinney on the rent last falling due on the lease from said Berry to said Mulvey Manufacturing Company and others, and that on default of the said complainants, or some one of them, paying to said McKinney what shall be found due him on said $4,000 note, and the balance due him for rent, interest and costs after deducting therefrom the amount due to him on said $4,000 note, that the bill of complaint do from thenceforth stand dismissed out of that court at the costs of complainants,

jReversed and remanded with directions, at the costs of appellees, but the appellant will be allowed no costs for printing the abstract.


text:
    J. A. Gore, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 18,441.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. False imprisonment, § 28

      —when verdict -for plaintiff not sustained hy the evidence. In an action against a department store for false imprisonment, the facts showing that plaintiff had purchased a coat and was leaving the store when he was stopped by some unknown person, and that plaintiff went with such person to the clothing department where a clerk and a floorman told him he would have to prove that he purchased or that he did not steal the coat, held that a verdict in favor of plaintiff could not be sustained, the evidence not showing that the person who stopped him was an employe of the store and it not appearing whether the statements made by defendant’s servants in the clothing department could be construed to mean that plaintiff should remain in the room until he proved he bought the coat.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Action by J. A. Gore against Marshall Field & Company, a corporation, to recover damages for false imprisonment of plaintiff by defendant’s servants. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Frank B. Leffingwell, for appellant.
    Cruice & Langille, for appellee.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

2. False imprisonment, § 2 —what constitutes. To constitute the injury of false imprisonment there must be a detention of the person and the detention must be unlawful.

3. False imprisonment, § 30 —when instruction not to award punitive damages should he given. In an action for false imprisonment by the servants of defendant, refusal of court to instruct the jury at the request of defendant that plaintiff should not be awarded punitive damages, held error, it not appearing, that defendant’s servants acted maliciously or wantonly or that their acts were conceived in a spirit of mischief or criminal indifference to civil obligations.

4. False imprisonment, § 36 —when damages excessive. A verdict for five hundred dollars for damages sustained by reason of false imprisonment, held excessive, the case not being one in which punitive damages should be awarded and the evidence showing that there was only a detention of the person of plaintiff for a few moments.


author: Mr. Justice Brown

text:
    Ernest D. McArthur, Defendant in Error, v. Joseph A. Hopson, Plaintiff in Error.
    Gen. No. 18,354.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Action by Ernest D. McArthur against Joseph A. Hopson to recover damages for alienation of the affections of plaintiff’s wife. To reverse a judgment entered in favor of plaintiff for one thousand dollars, defendant prosecutes error.
    Abstract of the Decision.
    1. Husband and wife, § 280

      —when admission of letter in suit for alienation reversible error. In an action for alienation of wife’s affections, admission in evidence of a letter'written "by the wife to defendant and found in defendant’s possession held reversible error.
    2. Husband and wife, § 280

      —when letter written by wife to husband not admissible in suit for alienation. In an action for alienation of plaintiff’s wife’s affections, a letter written by the wife to the plaintiff held not admissible in evidence.
    3. Marriage, § 26

      —sufficiency of proof of ceremonial marriage. In an action for alienation of wife’s affections, proof of ceremonial marriage held scanty where plaintiff testified he was married to his alleged wife on a certain date at Milwaukee, Wisconsin, and further puts in evidence over objection a certificate of a justice of the peace in Milwaukee county, which in connection with his testimony showed that the ceremony was before such justice.
    4. Marriage, § 24

      —evidence inadmissible to prove ceremonial marriage. The certificate of a justice of the peace of another State is not of itself evidence of the official character of the justice or of his right to perform a marriage ceremony or that the ceremony was performed and is inadmissible as such evidence.
    5. Husband and wife, § 280

      —degree of proof required in suit for alienation. In an action for alienation of wife’s affections a preponderance of the evidence is sufficient to establish plaintiff’s case.
    6. Municipal Court of Chicago, § 27

      —when rules of court must be presented by bill of exceptions. The Appellate Court in cases coming from the Municipal Court cannot take judicial notice of the rules of that court nor consider them unless they are made a part of the record by a bill of exceptions.
    Cruice & Langille, for plaintiff in error.
    Comerford & Cohen, for defendant in error.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Edwin Nelson, Appellee, v. The Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 18,377.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 313

      —when employe riding on pass is a passenger for hire. An employe of a railroad company riding on a coupon pass to and from his place of work, held a passenger for hire and for a consideration, the consideration being that the company was enabled to draw its employes from a larger body subject only to the expense of their transportation.

      ■ Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.
    Rehearing denied January 26, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Edwin Nelson, a minor, by N. A. Nelson, his next friend, against The Chicago, Rock Island and Pacific Railway Company to recover for injuries sustained by plaintiff alleged to have been caused by defendant’s negligence in suddenly starting its cars while plaintiff was attempting to alight from the front platform of one of defendant’s ears at a railroad station. From a judgment in favor of plaintiff for ten thousand dollars, defendant appeals.
    Appellant complains that the verdict is against the weight of the evidence; that court erred fin refusing to give a peremptory instruction for defendant; that the court erred in giving and refusing certain instructions ; and that there is a variance between the allegations of declaration and the proof as to the place of injury.
    M. L. Bell and A. B. Enoch, for appellant.
    Horton, Wickett, Miller & Meier, for appellee; George J. Meier and John Irrmann, of counsel.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

2. Cashiers, § 305 —when exemption from liability on back of pass is invalid. The law of Illinois renders invalid as against a passenger for hire or consideration an exemption or waiver and release of liability for negligence which appears on the back of. a pass in these words: “By the acceptance and use of this ticket any and all claims on this company, whether due to negligence of its agents or otherwise, for injury to the person * * * of the holder are waived and released.”

3. Instructions, § 88 —when giving of instruction as to preponderance of evidence not reversible error. The giving of an instruction on what the jury may consider in determining the preponderance of the evidence, the language thereof being identical with a similar instruction passed upon by the Supreme Court in Beering v. Bareak, 227 Ill. 71, held not of itself ground for reversal.

4. Appeal and error, § 438 —when objection for variance not preserved for review. Objection for variance between the declaration and the proof cannot be considered on review when not made the subject of objection or comment in the court below.


text:
    Freida Gauger, Appellee, v. American Patriots, Appellant.
    Gen. No. 18,428.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed with finding of fact.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Action by Freida Granger against American Patriots, a fraternal insurance corporation, to recover upon a benefit certificate issued by defendant upon the life of Friedrich Danger. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Abstract of the Decision.
    1. Insurance, § 746

      —when constitutional provision of fraternal order is-part of contract. Provisions of the constitution of a fraternal insurance order is a part of the contract where the certificate itself and its acceptance and the application for reinstatement are made subject to the constitution and the laws of the order.
    2. Insurance, § 843

      —when constitution of fraternal order avoids certificate when member dies while in custody of the law. A section of the constitution of a fraternal insurance corporation providing, that if a member dies “while in the custody of the law” the certificate of membership shall be null and void applies so as to render the certificate void where the member dies while committed to the House of Correction, and the section applies though there is no causative connection between the custody and the death.
    Albert J. W. Appell, for appellant.
    P. S. Webster, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Calvin W. Burket, Appellee, v. The Ures Consolidated Mining Company et al. On Appeal of John H. Turner et al., Appellants.
    Gen. No. 18,439.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.

      Certiorari denied by Supreme Court (making opinion final).

      Abstract of the Decision.
    1. Usury, § 39

      —when sureties on note cannot interpose defense. Sureties on a promissory note executed by a corporation cannot interpose the defense of usury.
    2. Principal and surety, § 54

      —when finding of jury on question whether sureties signed note on certain condition sustained by the evidence. In an action against sureties on a promissory note executed by a corporation, the defense was that defendants had signed upon condition that all the directors of the corporation would sign the note and the evidence upon that point was conflicting. Held, that a verdict in favor of plaintiff was sustained by the evidence and that there was evidence to corroborate plaintiff’s witnesses, it appearing that the plaintiff made the loan for which the note was given without an attempt to secure the lacking signatures, that the loan was unanimously ratified at a directors’ meeting at which defendants were present and that defendants were inactive in repudiating liability for a long time thereafter.
    3. Appeal and error, § 1241

      —matters which cannot he availed of. Appellants cannot take. advantage of the disobedience by the jury of an erroneous instruction given at their instance.
    Statement of the Case.
    Action by Calvin W. Burket against The Ures Consolidated Mining Company, Charles A. Winston, W. R. Macdonald, John H. Turner and P. D. Minick to recover on a promissory note purporting to be executed by the Mining Company and signed by the other defendants. 'The Mining Company was not served in the case. From a judgment in favor of plaintiff for $4,508.27 and costs, John H. Turner, Charles A. Winston and P. D. Minick appeal.
    Hoyne, O’Connor & Irwin and Winston & Lowy, for appellants.
    Defrees, Buckingham, Ritter & Eaton, for appellee; John G. Campbell and Don K. Jones, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Hamlins Wizard Oil Company, Appellee, v. United States Express Company, Appellant.
    Gen. No. 18,352.
    1. Principal and agent, § 137

      -when employer’s failure to audit hooks not negligence preventing recovery from party receiving checks and drafts on forged indorsements of employer’s bookkeeper. A bookkeeper for a firm was charged with the duty oS buying money orders of an Express Company and he usually paid therefor with checks or drafts payable to the firm’s order and remitted to it by its customers. After he had left the firm’s employment it was discovered that he had for several years been appropriating to his own use a large number of such checks and drafts by forging the firm’s indorsement thereon to procure money orders, and that he had concealed the fraud by false entries in the books. Held, in an action by the firm against the Express Company to recover the amount of the checks and drafts received hy the defendant upon such forged indorsements that the relations between the plaintiff and defendant were simply that of customer and seller, that the plaintiff owed no duty to defendant that could affect its method of bookkeeping and that therefore plaintiff’s failure to audit the books so as to prevent the fraud was not such negligence as could be availed of as a defense to the action.
    2. Bills and notes, § 409

      —burden of proving authority to indorse. In an action against an Express Company to recover the amount of checks and drafts received by the Express Company upon the forged indorsements of plaintiff’s name thereon by plaintiff’s bookkeeper in payment for money orders, the burden is upon the defendant to prove that such indorsements were authorized where he asserts such claim as a defense.
    3. Evidence, § 253

      -—when book entries admissible in favor of party required to produce books in evidence. Where a defendant calls upon the plaintiff for the production of books and uses certain entries therein to establish its claim for credits without making any proof required by statutes as to their regularity, plaintiff becomes entitled to use other entries to explain or contradict the effect claimed for the entries adduced by defendant.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.

      Certiorari granted by Supreme Court.

      Statement by the Court. This is an appeal by the United States Express Company, hereinafter called defendant, from a judgment obtained by the Hamlins Wizard Oil Company, hereinafter called plaintiff, in an action brought to recover the amount of certain checks and drafts payable to plaintiff’s order and remitted to it by its customers, but which through forged indorsements came into the hands of defendant, which received and collected the proceeds thereof.
    Briefly narrated, the transactions giving rise to this suit were as follows: One A. M. Walsh became a bookkeeper for plaintiff in 1901 and continued as such until February 15, 1910, when he suddenly left plaintiff’s employment, and died about two weeks thereafter. An audit of plaintiff’s books was begun about the time he left but was not completed until after his death, which disclosed that Walsh was a defaulter to the extent of about $50,000, his frauds commencing shortly after he became bookkeeper and continuing during the entire period of his service.
    Plaintiff’s office clerical force consisted of Walsh, two girl stenographers and two or three girl clerks.
    Walsh’s salary as bookkeeper was about $25 a week or $1,300 a year. Besides keeping books Walsh did other clerical work, such as opening mail in the absence of the officers of the company, making small disbursements upon the authority of the officers, and attending to the depositing of checks payable to plaintiff, which were indorsed for deposit with a rubber stamp.
    For the purpose of remitting salaries to traveling salesmen on the road, and of making remittances to customers for breakage, freight, etc., plaintiff had for nearly twenty years prior to 1910 been in the habit of buying express money orders from the defendant. It was part of Walsh’s duty to buy these money orders when directed so to do. When money orders were to be bought he was furnished with checks, or cash of sufficient amount to cover the orders to be procured, and it was his duty to procure the orders and return them to the officers of the company.

      'The audit and investigation above referred to disclosed that Walsh had perpetrated his frauds by forging the plaintiff’s indorsement on the back of customers’ checks and drafts to its order, and disposing of the checks and drafts for his own benefit. A large number of them were disposed of by Mm at the defendant’s money order department. The present suit is upon one hundred such checks and drafts, covering a period of a little less than five years prior to the commencement of this suit, all of which were received by the defendant from Walsh and collected by it under indorsements of plaintiff’s name forged by him. Nearly all of these customers’ checks and drafts were indorsed by Walsh in this form: “Pay to the order of the Umted States Express Co., Hamlins Wizard Oil Co., J. A. Hamlin, President.” In other instances they purported to bear the signature of L. B. Hamlin, President, or L. B. Hamlin, Vice-president. They were delivered by Walsh to one L. B. Richardson, who at that time had charge of the money order department of the defendant. Richardson gave Walsh in exchange for these checks and drafts money orders of the defendant and cash for any excess in the amount of the check or draft above the total amount of the money orders. Richardson testified that for eight years before Walsh was employed the plaintiff had always bought its money orders from the defendant with checks drawn by the Hamlins Wizard Oil Company.
    The money orders which were given in exchange for the one hundred checks and drafts in controversy fall into three classes: First, money orders payable to the order of third persons with whom plaintiff never had any dealings; second, money orders payable to the order of plaintiff’s traveling salesmen or customers, which were duly collected by the respective payees under their genuine indorsements and which were duly charged by Walsh to the payees on the plaintiff’s books of account; third, money orders payable to the order of plaintiff’s salesmen or customers, which Walsh cashed under indorsement of the payees’ names forged by him. No entries appear on plaintiff’s books as to any of these money orders.
    In the case of the one hundred customers’ checks and drafts sued on, and in the case of all other customers’ checks and drafts stolen by Walsh, he credited the customers’ accounts in the ledger with the amounts, but failed to make the corresponding charges to the plaintiff’s bank of deposit, in the journal. Under plaintiff’s system of bookkeeping checks and drafts received from customers were not entered in the cash book, which was merely a petty cash book, but were transferred from the journal to the ledger, the customers being credited and the bank of deposit charged with the amount of the check. In order to. cover up these frauds Walsh made corresponding false entries in various ways in order to force his books to a balance.
    The court directed a verdict for plaintiff for the amount of the one hundred customers’ checks and drafts with interest, less the amount with interest of the money orders of class 2, supra, and a few others which were duly charged against the payees on plaintiff’s books of account. This deduction was made apparently on the theory that since plaintiff actually got the benefit of them it was only just that the defendant should be credited with them, though they were in fact bought with part of the proceeds of the stolen checks and drafts. The amount of the verdict arrived at in this manner was $20,005.84, upon which judgment was entered.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, Edward W. Everett and Walter H. Jacobs, of counsel.
    Hamlin & Boyden and Louis M. Greeley, for appellee; Morris St. P. Thomas, of counsel..

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

   Mr. Justice McSurely

delivered the opinion of the court.

The defendant claims as a ground for reversal that nlaintiff was guilty of negligence in failing to discover Walsh’s misconduct, thereby causing the loss comnlained of, and, therefore, because of such negligence, nlaintiff cannot recover from the defendant. It is argued that an audit of plaintiff’s books would have ■hsclosed Walsh’s peculations, and that plaintiff owed to defendant the duty of so examining its books as to prevent such losses.

The cases cited to support this contention are cases having to do with a suit by a depositor against his bank to recover the amount of a forged or altered check which the bank had improperly paid and charged a gainst the depositor’s account. In such a case it was held to be the duty of the depositor to examine within a reasonable time the returned canceled checks and to give the bank timely notice of any irregularities he might discover, so that the bank could protect itself and be on guard against similar impositions in the future. A typical case is Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, where the Court said: “If he (the depositor) had discovered that altered checks were embraced in the account, and failed to give due notice thereof to the bank, it could not be doubted that he would have been estopped to dispute the genuineness of the checks in the form in which they were paid.”

But we cannot hold this rule applicable to the case before us, for the reason that the relations between the plaintiff and the defendant were not those of a depositor and his bank, but were simply those of a customer and a seller. Defendant was in the business of selling money orders to any one wishing to buy, and the plaintiff, when it desired, purchased them from defendant. Plaintiff owed defendant no higher duty than it owed to the parties from whom it bought its supplies used in its business. There were no relations of mutual trust and confidence imposing reciprocal duties as exist between a depositor and Ms bank. There being no duty owing to the defendant that couM affect plaintiff’s methods of bookkeeping, it follows that any failure by plaintiff to audit its books is not such negligence as can avail as a defense. Among the Cases sustaining this view in extended opinions are People v. Bank of North America, 75 N. Y. 547; Shepard & Morse Lumber Co. v. Eldridge, 171 Mass. 516; Dispatch Printing Co. v. National Bank of Commerce, 115 Minn. 157.

In Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, and in Shipman v. Bank of State of New York 126 N. Y. 318, where negligence of the plaintiff was claimed as a defense, under facts similar to the facts in the case before us, it was held that the negligent manner of plaintiffs in transacting their business with reference to checks was not the proximate cause of the loss, but that the proximate cause of the checks being paid upon fraudulent indorsements was the failure of the defendants to see that the indorsements upon the checks were genuine.

It should be noted that under the scheme followed by Walsh the forgeries in question would not have been readily discovered from usual bookkeeping inspection, and it would be only a guess to say that a discovery of his wrongdoing in other particulars would have led to the discovery of this particular method of obtaining money. Considerable argument is indulged in upon the point that an investigation of Walsh’s conduct would have disclosed that he was spending more for his personal wants than- the amount of his salary would warrant, and that much of his expenditures was made in saloons and other places with which plaintiff had no business connection. If we are correct In holding that plaintiff owed no duty to the defendant as to the manner in which plaintiff kept its books of account, it certainly cannot be said that plaintiff owed the defendant any duty with regard to the habits and manner of living of plaintiff’s employes.

Defendant concedes that Walsh had no express authority to indorse checks and drafts, but argues that there is evidence from which such authority may be inferred. We find no such evidence in the record; in fact, the evidence negatives any such inference. No such inference can be drawn from the mere fact that Walsh was the messenger sent to defendant’s office to buy money orders with checks already indorsed. Nothing occuring between him and the defendant could be said to contain any suggestion that Walsh was indorsing the checks. They purported to be indorsed by the president or vice president of the plaintiff Company, and it is evident that Walsh conducted himself so as to inspire a belief that the indorsements were made by the persons purporting to have made them. It was not part of his scheme to lead the defendant to believe that the indorsements were made by himself, but rather that they should be considered as genuine.

Defendant is in error in its contention that it was necessary for the plaintiff to prove not only that the indorsements were not genuine, but also that they were unauthorized. If defendant claimed in defense that the indorsements were authorized, the burden was upon it to make this proof, and not upon the plaintiff. It is so held in Schroder v. Harvey, 75 Ill. 638, and Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151. Decisions stating the rule in criminal cases are not in point.

There was no error in the use of the books of plaintiff. In the introduction of plaintiff’s evidence in chief no books were used. Defendant then called for them and used certain entries therefrom to establish its claim for credits, without making any proof required by the statute as to their regularity. Plaintiff therefore became entitled to use other entries to explain or contradict the effect claimed for the entries adduced by defendant.

In Boudinot v. Winter, 190 Ill. 394, the Court said:

“We know of no principle that will enable a party to a suit to call upon his adversary for the production of documentary evidence, and, when it is so produced, claim the benefit of such part or portion thereof as may be to his advantage, and, at the same time, reject such part as tends against him, and also deprive his opponent of the right to its use.”

We might also say that defendant suffered no harm from this use of the books by plaintiff.

Complaints are made of many rulings of the court on the admissibility of evidence. Some of the objections are highly technical. In other instances, where objections to questions were sustained, the testimony sought was already in evidence. Other points are met by what we have said concerning the absence of any duty from plaintiff to defendant in regard to plaintiff’s manner of conducting its business.

The facts' are not in dispute. The only questions involved are ones of law. In our view of the case the trial court committed no error in instructing the jury as he did, and the judgment will be affirmed.

Affirmed.


text:
    Fred C. Rounds and Albert H. Wetten, Appellants, v. Victoria Hotel Company, Appellee.
    Gen. No. 18,365.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Mastín, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed January 12, 1914.

      Abstract of the Decision.
    1. Brokers, § 88

      —when judgment for principal in action for commission not sustained, by the evidence. In an action for commissions for procuring a lessee for defendant’s premises, a judgment in favor of defendant held not sustained by the evidence, it appearing that .the plaintiffs procured a customer, that a commission was agreed upon and that the premises were afterwards leased to such customer by the principal through another agent.
    2. Brokers, § 48

      —when broker is procuring cause of final consummation with customer. Where a real estate broker produces a customer and continues the negotiations he will be considered as the procuring cause of the final consummation with the customer, although the negotiations may be completed by the principal or through another party.
    3. Brokers, § 84

      —when conversation between broker and prospective customer admissible. In an action to recover a commission for procuring a customer for leasing defendant’s premises, a conversation between the customer and the' plaintiffs held admissible for the purpose of showing that the customer had not abandoned the leasing.
    Statement of the Case.
    Action by Fred C. Bounds and Albert H. Wetten, doing business as Bounds & Wetten, against Victoria Hotel Company, a corporation, to recover a commission for procuring a customer for defendant to lease certain premises belonging to defendant. The case was tried by the court without a jury. From a judgment in favor of defendant, plaintiffs appeal.
    Eddy, Wetten & Pegler, for appellants; William H. Dieterich and Howard M. Harpel, of counsel.
    Hopkins, Peffers & Hopkins, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    American Art Works, Appellee, v. Chicago Picture Frame Works, Appellant.
    Gen. No. 18,418.
    Corporations, § 736

      —when foreign corporation is not doing business in this State so as to deprive it of the right to sue. A foreign corporation which is engaged in manufacturing advertising specialties, with its factory and principal office in another State, owns no property in this State, maintains an office in Chicago for the exclusive use of its salesmen whose only business is the solicitation of orders by agents, but the salesmen are required to pay the expenses of the office out of their commissions, held to be engaged in interstate commerce business and not to come within the purview of Hurd’s R. S. 1909, p. 573, J. & A. ¶ 2531, prohibiting foreign corporations from maintaining a suit within this State where it does business in this State without a license.
    Appeal from the Municipal Court of Chicago; the Hon. Harry L. Persons, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.
    Rehearing denied January 26, 1914.

      Certiorari granted by Supreme Court.
    A. D. Gash, for appellant.
    Baker & Holder, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment obtained by the American Art "Works, a corporation, in a suit on written contracts for the sale of merchandise. •

The defendant, Chicago Picture Frame Works, a corporation, claims that the plaintiff cannot recover, on the ground that it is a foreign corporation doing business within the State of Illinois without a license as is required by statute. No other point is presented on this appeal.

It is not controverted that plaintiff was a foreign corporation at the time of the transaction involved. It was organized under the laws of New Jersey, and had its principal office at Coshocton, Ohio. The ultimate question for decision is whether, under the facts in evidence, plaintiff is prohibited from maintaining this suit by reason of the provisions of the statute of Illinois, entitled “An Act to Regulate the Admission of Foreign Corporations for Profit, to do Business in the State of Illinois,” approved May 18, 1905, in force July 1,1905, Hurd’s R. S. 1909, p. 573 (J. & A. ¶ 2531). The answer to this question depends on whether or not plaintiff was doing business in Illinois, and the material facts on this point are as follows:

Plaintiff’s principal office and factory are at Coshocton, Ohio, where it manufactures advertising specialties. It owns no property in Illinois. It has an office for the exclusive use of its salesmen in Chicago, but the only business it has ever done in Illinois is the solicitation of orders by agents, which orders are forwarded to the office at Coshocton for acceptance or rejection. All goods are manufactured at Coshocton and are delivered f. o. b. cars at that place. No shipments have ever been made to any point in Illinois for delivery. Collections of accounts are made from the Coshocton office, and all payments are made there. The salesmen have been employed under contracts that they shall solicit orders on commission, and that all expenses, including the office rent in Chicago, telephone charges, etc., are to be paid out of these commissions, and if paid by the company are charged up against the commissions earned by the salesmen. The two contracts upon which this- suit was brought were solicited by a Chicago salesman and transmitted by him to Coshocton and approved and accepted there, and a written acknowledgment of the acceptance sent to the defendant. All of the goods sold by plaintiff are made up to order, and no goods are kept in the Chicago office.

From a consideration of these facts we have concluded that plaintiff was not doing business within the purview of the statute above referred to, and hence the statute has no application. The foregoing facts bring the case within the reasoning and conclusion of the Supreme Court in Lehigh Portland Cement Co. v. McLean, 245 Ill. 326, in which opinion the rule under consideration is discussed at length, with copious quotations from many other cases. In that case it was held that corporations engaged in interstate commerce axe not amenable to the provisions of the act above referred to, and hence by the very language of the act itself axe excluded from its operation. It was also held that a corporation transacting essentially the same kind of business as was the plaintiff herein is engaged in interstate commerce.

We do not deem it important that the plaintiff Company was the lessee of an office in Chicago as headquarters for its salesmen, as the expense of its maintenance, including rent, was charged to the salesmen. In this respect the facts are the same as in International Textbook Co. v. Pigg, 217 U. S. 91, in which the plaintiff was a Pennsylvania corporation, with a solicitor in Kansas, maintaining an office there at his expense. The court holds that the business of the plaintiff was interstate commerce within the meaning of the Constitution of the United States.

Holding as we do, that the reasoning and conclusion of the Supreme Court in the Lehigh Portland Cement Co. case, supra, is decisive of the point now under our consideration, we are of the opinion that the trial court committed no error in declining to instruct the jury to find the issues for the defendant.

The judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois for use of Henry J. Schaefer, Appellee, v. George Wirtz et al. On Appeal of Joseph Thome and John Doornek, Appellants.
    Gen. No. 18,433.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Guardian and ward, § 97

      —when record shows suit on guardian's bond is brought in the name of the People. A suit on a guardian’s bond is shown to have been brought in the name of the People where the record shows that the plaintiff named in the praecipe is "People of the State of Illinois, for use of Henry J. Schaefer” and the plaintiff is so named in the statement of claim and other papers filed in the case, though the summons calls upon defendants to answer unto “Henry J. Schaefer.”
    2. Municipal Court of Chicago, § 5

      —judicial notice of rules by

      Appellate Court. Section 20 of Municipal Court Act, J. & A. ¶ 3332, held not to require the Appellate Court to take judicial notice of a rule of the Municipal Court, since that section was declared unconstitutional in Sixby v. Chicago City Ry. Co., 260 Ill. 478.

      Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed January 12, 1914.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of Henry J. Schaefer against George Wirtz and others on a guardian’s bond. From a judgment entered against the defendants for twelve thousand dollars in debt and one thousand nine hundred dollars in damages to he satisfied upon the payment of the damages with costs and interest, Joseph Thome and John Doornek, two of the defendants, appeal.
    Pines & Newmann, for appellants; Julius M. Kahn, of counsel.
    Rocco De Stefano, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Smith

text:
    Isadore B. Simco, Defendant in Error, v. Morris M. Mankowitz, Plaintiff in Error.
    Gen. No. 18,771.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Rehearing allowed November 18, 1913.
    Opinion on rehearing filed January 13, 1914.
    Statement of the Case.
    Motion presented by Morris M. Mankowitz to the Municipal Court to vacate a judgment of confession entered in that court against Morris M. Mankowitz and in favor of Isadore B. Simco on a judgment note, and for leave to defend against the action. The motion was presented more than two months after the entry of the judgment and was based on a petition supported by affidavit. From an order denying the motion, Morris M. Mankowitz brings error.
    Everett Jennings, Harry L. Strohm and Jennings & Fieer, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 19 —jurisdiction to vacate confessed judgment on petition. Under section 21 of the Municipal Court Act, J. & A. If 3333, that court has power after thirty days from the entry of a confessed judgment to vacate it on petition setting forth facts which would be sufficient to cause the same to be vacated in a court of equity.

2. Judgment, § 62 —when petition to open judgment by confession states equitable grounds. A petition supported by an affidavit and stating grounds for a motion to vacate a judgment entered by confession on a judgment note and for leave to plead to the merits and defend the action, held to state facts showing petitioner entitled to equitable relief, the petition showing that the judgment note was given as part of the purchase price of an automobile, that the seller misrepresented the condition of the automobile and that the note was indorsed to the holder with knowledge of the warranty.