text:
    Ella Spears, Administratrix, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.
    1. Appeal and ebeob, § 800

      —when motion must be preserved in bill of exceptions. A motion to quash summons and to strike the declaration from the files can be made a part of the record only by a bill of exceptions.
    2. Appeal and ebeob, § 824*-—section 81 of Practice Act construed. Section 81 of the Practice Act (J. & A. If 8618) does not change the rule as to the preservation of exceptions but only as to the removal of the record from the trial court to the court of review.
    3. Appeabance, § 10*—when malting of motion does not constitute general appearance. A motion by defendant to quash a summons and to strike the declaration on the ground that the declaration did not follow the prcecipe as to the parties or the amount of damages, held not to constitute a general appearance because it called upon the court to determine the merits of the case.
    4. Appeal and ebeob, § 783*—when bill of exceptions becomes part of record. The bill of exceptions becomes a part of the record from the time of signing and filing and not before.
    5. Pleading, § 451*—grounds for strilting declaration. A motion by defendant to strike the declaration on the ground that it did not follow the prcecipe as to the parties and the amount of damages, held improperly overruled.
    Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed November 9, 1914.

      P. J. Kolb and W. F. Scott, for plaintiff in error; Bertrand Walker, of counsel.
    Thompson & Thompson and Clark & Hutton, for defendant in error.

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

   Mr. Justice Harris

delivered the opinion of the court.

This was a suit by defendant in error for ten thousand dollars brought in the Circuit Court of Saline county to the April term, 1911, against the Saline County Coal Company. Prcecipe for summons filed March 22, 1911. The cause was on May 13, 1911, continued generally. The declaration in the case was filed June 2,1911, against the Saline County Coal Company and plaintiff in error ad damnum two thousand dollars, this being in vacation after the April term, 1911. Summons was issued June 2, 1911, against the plaintiff in error alone, original return of summons dated June 2, 1911. Amended return of summons dated the eleventh day of September, 1911.

Upon motion of defendant in error on June 13,1911, leave of court was obtained permitting defendant in error to amend prcecipe and declaration in the case, making new parties defendant, viz., plaintiff in error, and ordered that the clerk issue an alias summons for said new parties defendant returnable to the next term of the said Circuit Court. April 10, 1913, order of court granting sheriff leave to amend return of summons against plaintiff in error. Prcecipe for summons filed in vacation July 31, 1913, against plaintiff in error, in an action on the case ad damnum two thousand dollars July 31, 1913, summons issued by clerk accordingly, returnable to the first day of September term, 1913. Return showing summons served August 28, 1913. On September 10, 1913, order of court showing motion under limited appearance to quash summons dated July 31, 1913, motion confessed and summons quashed. On September 12, 1913, motion by plaintiff in error by limited appearance to quash summons issued June 2, 1911, and strike declaration filed same day in so far as same relates to the plaintiff in error.

November 28, 1913, the court sustained the motion to quash summons and the same was quashed. The court reserved ruling upon motion to strike declaration and on the second day of December, 1913, overruled the motion to strike declaration, and on the sixth day of December, 1913, entered default against plaintiff in error for failure to plead. On the ninth day of December, 1913, suit was dismissed as to Saline County Coal Company and defendant in error was granted leave to file amended declaration and plaintiff in error ruled to plead by second Wednesday. On Wednesday, the tenth day of December, 1913, a default was entered against plaintiff in error. On Thursday, the eleventh day of December, 1913, a trial was had on the default and damages assessed by a verdict entered in the sum of two thousand dollars, judgment entered thereon in favor of defendant in error and against plaintiff in error for the sum of two thousand dollars and costs of suit.

Plaintiff in error by writ of error asks a reversal of the judgment for the following reasons:

First. Because the court did not obtain jurisdiction of the plaintiff in error.

Second. Because the amended declaration upon which the verdict was returned and judgment entered did not state a cause of action against plaintiff in error.

Third. Because the record in the case would not sustain a judgment against plaintiff in error for all the costs.

In considering the first error assigned, plaintiff in error calls the attention of this court to the certificate of the clerk that no bill of exceptions had been signed and filed. The record filed in this court seems to have been prepared and certified under section 81 of the Practice Act (J. & A. j[ 8618), the plaintiff in error filing praecipe for the part of the record it regarded as material and defendant in error filing praecipe with clerk for the part she regarded as material. The clerk accordingly prepared and certified the parts of record as called for without the bill of exceptions. It is argued by plaintiff in error that to bring the motion to quash summons and to strike the declaration before this, court for review it must be done by bill of exceptions. A .motion to strike a part of the files or for leave to file additional plea'is no part of the record unless made so by the bill of exceptions. Green v. Jennings, 184 Ill. App. 340. Motions for change of venue and for continuance are no part of '■ o record unless made so by the bill of exceptions. People v. Weston, 236 Ill. 104. The section of the Practice AePto which our attention has been called does not change the rule as to the preservation of exceptions but only as to the removal of the record from the trial court to the court of review. The bill of exceptions becomes a part of the record from the time of signing and filing of same and not before. Jurisdiction is never presumed. The record must affirmatively show jurisdiction. Counsel in this case proceed upon the theory that if the trial court obtained jurisdiction of plaintiff in error it was under its motion of September 12,1913, by entry of appearance and in no other way. This court could only examine the record in this regard and the motion when the same was properly made a part of the record by bill of exceptions, which has not been done. The importance of the first error argued, that of jurisdiction of plaintiff in error, is such that it should be considered and determined regardless of the way it is presented, and waiving in this case the failure of the record to preserve by bill of exceptions the motion. It is conceded that if the court obtained jurisdiction of plaintiff in error it was under the motion in question by voluntarily submitting to the court questions which called for a decision of the Court on the merits of the case.

The law as to when a party waives his right to summons or notice and submits to the jurisdiction of the court has been by many decisions of our Supreme Court established.- However, each case differs in the application of the law to the facts. In the case of Nicholes v. People, 165 Ill. 502, the court summarized the authorities upon the question and determined when a party submitted to jurisdiction--aid this decision is now the leading case in this State upon the subject and is so recognized by counsel on both sides in their argument of error in this case. The difference between counsel is-in the application of the law in that case to the facts of the case at bar.

- Plaintiff in error limited its appearance and had the right to so appear and question the sufficiency of notice to confer jurisdiction, and if it went no further the court would have no right to render judgment. If plaintiff in error appeared to the merits and made a defense which could only be maintained by the exercise of jurisdiction, the appearance is general whether it is in terms limited or not. 2 Encyc. of Pleading and Practice 625.

The praecipe for summons against the Saline County Coal Company filed March 22, 1911, ad damnum ten thousand dollars, the declaration filed June 2, 1911, against Saline County Coal Company and plaintiff in error ad damnum two thousand dollars, and praecipe filed July 31,1913, against plaintiff in error ad damnum two thousand dollars. A summons issued thereon, which summons was oh September 10, 1913, quashed by defendant in error confessing the motion to quash.

There were three papers on file in this case on December 2, 1913, when the court overruled the motion of plaintiff in error to strike the declaration, the two praecipes and the declaration.

The praecipes filed at different dates laying the 'damages at different amounts and against different defendants. The declaration including both defendants, one of which had filed pleas to the merits and the other denying jurisdiction. A declaration not following the praecipe theretofore filed as to parties or in amount of damages and filed as against another party without being preceded by praecipe for summons and without leave of court in term time or judge in vacation. It may be true that in this condition of the record it was immaterial to plaintiff in error whether the declaration remained on file or not, or whether it and the praecipe filed against another defendant agreed as to the amount of damages, and it is immaterial to the court. What the court had to determine was whether or not did plaintiff in error by voluntarily making such a motion, and assigning the reason that the declaration and the praecipe filed against another defendant differed in amount of damages, does any more than object to the manner in which it was brought before the court and to show that it was not legally there at all. A motion to strike a declaration on the ground that it was not filed following a praecipe for summons or by leave of the court in term time or vacation does not call upon the court to determine a question of merits, but only a question of procedure. A declaration not filed in accordance with our established rules of procedure is not legally a part of the files and should on motion be stricken. The fact that this declaration was preceded by a praecipe as to one of the defendants would give the filing of the same as against the other defendant no greater dignity than if the latter defendant was the only defendant mentioned in the declaration, and because a motion to strike gives as a reason that the damages laid in the praecipe referred to are ten thousand dollars, and in the declaration two thousand dollars does not call upon the court to determine a question of merits as to whether plaintiff in error was in any way liable to defendant in error from the allegations of the declaration. As was said in the case of Nicholes v. People, supra, the court can only pass upon a question going to the merits upon the hypothesis that •it has jurisdiction of the parties; and the objection in that case was in the nature of a general demurrer and called upon the court to decide whether the improvement had been built, paid for and accepted as alleged. So with all the authorities, when you reach the exact question submitted and the conclusion of the court that the party had conferred jurisdiction, it is where the party denying jurisdiction has called upon the court to decide the sufficiency of the allegations of a petition or declaration filed against it. This is not the case here, the reference to the ad dummm in declaration and praecipe is not by way of determining whether plaintiff in error is liable under the allegations of declaration or for how much, but as a matter of identification of parties under the two prcecipes filed, and that -the declaration should be stricken, first, because n did not follow the filing of any praecipe against plaintiff in error; and second, because no leave was sought or obtained to file it. The conclusion reached upon this record as to jurisdiction, we think, is supported by the facts and the. application of the law in the following cases: Ladies of Maccabees v. Harrington, 227 Ill. 511; Wilcox v. Conklin, 255 Ill. 604.

In the case of Wilcox v. Conklin, supra, a suit against two defendants, one of which pleaded to merits, the plaintiff in error filed his special appearance and motion to quash the service so had upon him and dismiss the suit. It was urged that the so-called motion was not a motion but an entry of appearance. The Court said: “While the motion was not strictly in proper form, it was intended for a motion and not a mere entry of appearance, and was properly so treated by the court. * * * As plaintiff in error was sued in the Municipal Court of Chicago,—a city in which he did not reside,—defendant in error had no right to have the suit to remain on the docket to annoy him, and when these facts were properly brought to the attention of the court the motion to dismiss as to him should have been allowed.”

In this case, while the motion was not strictly in form, each step in the proceeding shows plaintiff in error protesting as to, jurisdiction; and from the time the court passed upon the motion to quash the summons and strike the declaration, plaintiff in error took no further part in the proceeding. The court did not obtain jurisdiction of plaintiff in error, and the motion to strike the declaration as to plaintiff in error should have been sustained.

The other errors argued for a reversal of this judgment are with reference to what was done after the ruling by the court upon the motion in question, the loss of jurisdiction by the cause being dropped from docket, the filing of a new declaration and not an amended declaration, the default of defendant prior to the expiration of ten days, the sufficiency of the declaration to sustain the verdict and the entry of judgment against plaintiff in error for all costs.

As this case must be reversed on the question of jurisdiction it will be unnecessary to discuss the other errors argued, if any there are; if this case should proceed further, they will probably be obviated.

The Circuit Court did not acquire jurisdiction over the person of plaintiff in error, and judgment will be reversed and cause remanded with directions to sustain the motion to strike the declaration so far as the same relates to plaintiff in error.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Harris

license: Public Domain

text:
    John Schiller, Appellee, v. Oliver H. Madden, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 14, 1914.
    Statement of the Case.
    Action by John Schiller against Oliver H. Madden for criminal conversation. The declaration consisted of two counts. The first count alleged that defendant, contriving and wickedly intending to injure plaintiff and to deprive him of the society and assistance of Lucinda Schiller, the wife of plaintiff, on to wit, June 1, 1913, and on divers other days between that day and the commencement of this suit in said Jasper county, wrongfully and wickedly debauched and carnally knew the said Lucinda Schiller, then and there being the wife of plaintiff, and thereby the affection of the said Lucinda Schiller for plaintiff was then and there alienated and destroyed, and also by means of the premises the plaintiff has from thence hitherto wholly lost and been deprived of the society and assistance of the said Lucinda Schiller, the said wife, in his domestic affairs, which said plaintiff ought during that time to have had, and otherwise might and would have had. The second count in the same form alleges seduction. Damages were alleged in the sum of ten thousand dollars. The defendant filed the plea of not guilty. Upon the trial there was a verdict and judgment in favor of plaintiff for one thousand dollars. To reverse the judgment, defendant appeals.
    Albert E. Isley, for appellant.
    Fithian & Kasserman, for appellee.

      Abstract of the Decision.
    1. Husband and wife, § 283

      —when proof of criminal conversa tion with wife not limited by allegations as to time. In a suit for criminal conversation with plaintiff’s wife, where the declaration averred that defendant on, to wit, June 1, 1913, “and on divers other days between that date and the commencement of the suit,” had intercourse with plaintiB’s wife, etc., held it was not error to permit proof of intercourse upon dates prior to June 1, 1913, and within the statute of limitations.
    2. Pleading, § 11*—effect of allegation under videlicet. An averment under a videlicet does not make the subject-matter material, nor does an averment not under videlicet make material that which would otherwise be immaterial.
    3. Pleading, § 11*—averments as to time. The fact that an averment is made by continuando as to date does not change the materiality or immateriality of dates.
    4. Husband and wife, § 285*—sufficiency of evidence. In an action for criminal conversation with plaintiB’s wife, evidence held sufficient to prove a charge of seduction by defendant without any connivance on the part of plaintiB.
    5. Husband and wife, § 290*—when erroneous admission of evidence harmless. In a suit for criminal conversation with plaintiB’s wife, the admission of declarations and promises of the wife made to plaintiB that her conduct in the future would be proper, held improper but not reversible error, where there was direct evidence to prove the charge of seduction and no claim that the damages were excessive.
    6. Husband and wife, § 289*—admissibility of evidence. In a suit for criminal conversation with plaintifi’s wife, evidence ofiered on behalf of defendant of adulterous conduct of plaintiB is competent, not as a bar to the action but in mitigation of damages.
    7. Husband and wife, § 285*—when exclusion of answers to questions not error. In a suit for criminal conversation with plaintiff’s wife, where a witness was asked whether she knew of any attempts by plaintiff to have illicit relations with her or her mother, held that the refusal of the court to permit her to answer the questions was not error for the reason that the questions called for an answer as to what she knew about it, instead of whether or not plaintiff had attempted to have illicit relations.

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

   Mr. Justice Harris

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    The People of the State of Illinois, Defendant in Error, v. Barney J. Grogan, Plaintiff in Error.

    Gen. No. 18,766.
    1. Contempt, § 61

      —when answer must he taken as true. In a prosecution for contempt on behalf of the People, the answer of the respondent cannot be traversed and must be taken as true, but if the answer states facts that are inconsistent with respondent’s avowed purpose and intention as stated in his answer, the court is at liberty to draw its own inferences from the facts stated.
    2. Contempt, § 12*—when person guilty of contempt. Evidence held not to show that a surety on a bond in a prosecution for malicious mischief intended to induce the acceptance of himself as surety by certain misstatements as to other suits in which he was surety, wherefore, he was not guilty of contempt.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed.
    Opinion filed March 24, 1913.
    J. W. Sutton, for plaintiff in error.

      Maclay Hoyne, for defendant in error.

      This case was not received by the publishers until February 19, 1915.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error Drogan was hy a branch of the Municipal Court, held by Judge Demmill, adjudged guilty of contempt of court, fined $200, and to reverse such judgment prosecutes this writ of error. August 17,1912, William Waite was required by the Municipal Court to give bond in the sum of $2,500 to answer a charge of malicious mischief. Drogan applied to the clerk of the court to become surety for Waite. The clerk prepared a bond and an affidavit as to the sufficiency of Drogan to become such surety, which was signed by him and sworn to by him before the clerk. He then took the bond and affidavit to Judge Wells of the Municipal Court to have the bond approved. Judge Wells examined him and among other questions asked him if he was on any other bond, and he answered that he was on a bond for $1,000 and was on several “disorderly” bonds, but thought they had been disposed of. The Judge asked him if the property, 209 South Center avenue, which the affidavit stated was worth $6,250, was not worth more than that sum, and he answered that he paid $6,250 for the property and had expended $3,800 for improvements thereon. The Judge then. asked if the property was worth $10,000 and he answered that it was. The Judge then struck out “$6,250” and inserted “$10,000.” Drogan in answer to questions of the Judge stated that he owned three hundred acres of land in Jefferson county, Wisconsin, worth $50,000; that said real estate was clear of incumbrance and that he was worth over and above his indebtedness $100,000. Judge Wells inserted in the affidavit Drogan’s statement as to the Wisconsin land, reswore him to the affidavit and approved the bond.

The State’s Attorney filed a petition in the Municipal Court alleging that Drogan “made application for a bond” before Judge Wells and in said “application for bail,” sworn to before Judge Wells, in answer to the question: “Are you surety for any one else; if so, for what amount and for what?” answered, “Tes, $1,000”; that Grogan was then surety on three bonds of $400 each in cases brought by the City of Chicago and on one bond for $1,000 in a prosecution in the name of the People of the State of Illinois; that since the application for bail was made the defendant in one case brought by the City had been fined and that Grogan was still “surety for the other defendant in the sum of $1,800 and not in $1,000 as stated in his said application for bail before said Judge Wells.' The concluding portion of the petition is as follows: “Wherefore your petitioner asks that this- Honorable court enter a rule on said Barney J. Grogan to show cause why he should not be held in contempt of this court for his practices of deceit and misrepresentation upon one of the. Honorable Judges of said Municipal Court of Chicago, as hereinbefore shown.” This is not an averment that Grogan had practiced fraud or deceit on a judge of the Municipal Court, nor is there in the petition any allegation that the misstatement by Grogan in his affidavit as to the amount for which he was surety was made for the purpose of deceiving Judge Wells or inducing him to accept Grogan as surety when he would not, but for such misstatement, have accepted him.

The only evidence introduced or offered in support of the petition was the bonds mentioned in the petition and accompanying affidavit. The respondent answered the petition, stating that he answered fairly and frankly the questions propounded to him by Judge Wells and believed at the time that the answers were true, and that he then believed that the said City cases had been disposed of; that he did not intend to make any false representation as to his property and had no intention to practice fraud or deceit on Judge Wells. He testified as a witness on his own behalf, and his testimony tended to support the averments of his answer.

The finding of the court was that the defendant practiced deceit and misrepresentation in answering said questions and that, “he is, by reason of said conduct of the defendant in disobeying the order of the Court as aforesaid, guilty of. a direct contempt of this Court in open court.”

The defendant disobeyed no order of the court, for Judge Wells made no order that defendant do or refrain from doing anything. He was not guilty of contempt of court in open court, for the application to accept him as surety was made to Judge Wells, not to the court, and the bond was approved by the Judge, not by the court.

This is a prosecution in behalf of the People, and it is a cardinal rule that in such proceedings for contempt the answer of the respondent cannot be traversed and must be taken as true. 4 Black Com. 289. If the answer states facts that are inconsistent with respondent’s avowed purpose and intention as stated in his answer, the court will be at liberty to draw its own inferences from the facts stated. In re May, 2 Flippin, 562. In the answer in this case no facts are stated inconsistent with respondent’s purpose and intention as stated in his answer.

But waiving all technical objections, we think that the evidence fails to show that the respondent intended to deceive Judge Wells or induce him by misstatements to accept respondent as surety on a bond, when, if all the facts in relation to the bonds on which he was surety had been stated, he would not have been accepted. The evidence that respondent was worth over and above his indebtedness $100,000; that he owned in. fee clear of incumbrance real estate in Chicago worth $10,000, -and for which he had paid within about two years in purchase price and improvements $10,000, and that he owned three hundred acres of land in Wisconsin worth $50,000, which was clear of incumbrance, is not controverted.

We think that the evidence fails to show that the respondent was guilty of contempt and that the rule to show cause should have been discharged.

For the reasons indicated the judgment of the Mu-' nicipal Court is reversed.

Reversed.


text:
    The Cincinnati Exhibition Company, Appellee, v. George H. Johnson, Appellant.

    Gen. No. 20,600.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court.
    Reversed with directions.
    Opinion filed July 17, 1914.
    Rehearing denied October 17, 1914.
    Statement of the Case.
    Motion by George H. Johnson to dissolve an injunction granted on a bill filed by the Cincinnati Exhibition Company, a corporation, to restrain said Johnson from performing or playing baseball for any person or corporation other than the complainant during the season of 1914 and 1915. To reverse an order denying the motion, defendant appeals.
    The contract contained the following provisions:
    “7. The Club may, at any time after the beginning and prior to the completion of the period of this contract, give the player ten days’ written notice to end and determine all its liabilities and obligations hereunder, in which event the liabilities and obligations undertaken by the Club shall cease and determine at the expiration of said ten days; the player at the expiration of said ten days shall be freed and discharged from all obligation to render service to the Club. If such notice be given to the player while ‘abroad’ with the Club, he shall be entitled to his traveling expenses, including Pullman accommodations and meals en route to the City of Cincinnati.
    “8. The player agrees to perform for the Club and for no other party during the period of this contract (unless with the written consent of the Club) such duties pertaining to the exhibition of the game of baseball as may be required of him as said Club, at such reasonable times and places as said Club may designate for the National League seasons for the years 1914 and 1915, beginning in April, 1914, and April, 1915, and ending in October, 1914, and October, 1915, unless sooner terminated in accordance with other provisions hereof.”
    The defendant took a course of .training at the expense of complainant in February and March, 1914, and played with the complainant Club from April 14th to April 20th, and the next day signed a contract to play with a Club of the Federal League, a rival organization.
    The chief contention of defendant was that because the contract contains a provision that the Club may give the defendant, the player, ten days’ written notice to end and determine all its liabilities under a contract, in which event the liabilities and obligations of the Club shall cease and the player be freed and discharged from all obligation to render service to the Club at the expiration of said ten days, the contract is so wanting in mutuality that defendant, being free from personal bar, could not specifically enforce the covenants of complainant, and the complainant cannot therefore enjoin a breach of a negative covenant of the player Counsel for defendant relied on the case of Ulrey v. Keith, 237 Ill. 284, as decisive in favor of their contention.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, E. E. Gates and R. S. Tuthill, Jr., of counsel.

      Abstract of the Decision.
    Specific pebfobmance, § 11

      -—when negative covenant in baseball contract cannot be enforced by injunction. A negative covenant in a baseball player’s contract with a Club not to play or perform for any other than the Club, during the baseball seasons for which he was hired cannot he specifically enforced by an injunction, where there is a want of mutuality of remedy because of a provision in the contract giving the Club the right to terminate the contract by giving the player ten days’ notice.
    McSurely, J., dissenting.
    Chytraus, Healy & Frost, for appellee.

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

      This case was not received by the publishers until February 19, 1915.

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Presiding Justice F. A. 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, 1913.
    Reversed and remanded on rehearing.
    Opinion filed November 4, 1913.
    Rehearing allowed and additional opinion filed January 13, 1914.
    Statement of the Case.
    A judgment by confession for $125 was entered in the Municipal Court of Chicago in favor of Isadore B. Simco against Morris M. Mankowitz on a promissory note and power of attorney authorizing the entry of judgment, and a cognovit confessing judgment on the note. Defendant moved to set aside and vacate the judgment, the motion being based on a petition and affidavit. From a denial of the motion, defendant brought error.

      Abstract of the Decision.
    1. Judgment, § 80

      —when judgment by confession may be var cated. The court has power to entertain a motion and petition to vacate a judgment by confession where more than thirty days has elapsed after the entry of judgment.
    2. Judgment, § 75*—when petition presents equitable ■ grounds for vacating judgment. A petition to vacate a judgment by confession alleging that the ex parte proceedings were had without the defendant’s knowledge, that all equities and defenses of the maker of the note existed against the plaintiff, that plaintiff was not an innocent purchaser of the note but a party to fraud perpetrated on the defendant, that the note was void and without consideration, and that plaintiff’s assignor was guilty of breach of warranty in the sale of an automobile and agreed to make the warranty good, pre-. sents equitable grounds for relief entitling the defendant to plead.
    3. Judgment, § 80*—when judgment by confession may be vacated. Under section 21 of the Municipal Court Act, the court may vacate a judgment after thirty days from its entry, on a petition setting forth facts sufficient to cause the same to be vacated in a court of equity.
    Henry L. Strohm, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Sarah A. Coan, Appellant, v. Michael J. Coan, Appellee.
    Gen. No. 19,966.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Rehearing denied December 1, 1914.

      Abstract of the Decision.
    Appeal and ereob, § 1395

      —when chancellor’s findings conclusive. Where the evidence is conflicting, findings of a chancellor have the force and effect of a verdict, and such verdict will not be disturbed or set aside unless palpably against the weight of the evidence.
    Statement of the Case.
    Bill for separate maintenance by Sarah A. Goan against Michael J. Goan, charging extreme and repeated cruelty and praying for the custody of two of their three male children. The defendant denied the charges of cruelty and alleged that the complainant had been guilty of habitual drunkenness for more than two years, that she was not a fit person to have the custody of the children, and praying for a divorce and custody of the children. In her cross-bill the complainant denied the defendant’s charges. The cause was heard before a chancellor and the court entered a decree in favor of the defendant, dismissing the complainant’s bill for want of equity, dissolving the bonds of matrimony, giving defendant the custody of the children and requiring him to pay $12 per month as alimony to Mrs. M. J. Walsh for the benefit of complainant, and also to pay $35 as solicitor’s fees to complainant. A petition to vacate the decree was filed and denied, and defendant appealed.
    Effie Seeds Wellner, for appellant.
    No appearance for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Baume

text:
    Ella W. Magee, Appellant, v. John J. Magee, Appellee.
    Gen. No. 19,338.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divorce, § 47

      —when evidence insufficient to show cruelty. Evidence held insufficient to show that the husband was guilty of cruelty so as to entitle the wife to a divorce, where it appeared that the last alleged act of cruelty consisted of a slight discoloration of the wife’s face resulting from being struck by his arm or elbow when she was resisting his attempt to break a lock in a door with his knife, and it appeared that the previous acts of cruelty, one of which was explained as accidental, had been condoned by the wife.
    2. Divorce, § 46*—when evidence insufficient to prove charge of adultery. Evidence held insufficient to show that the husband was guilty of adultery so as to entitle the wife to a divorce, where the only evidence to support the charge was the deposition of a common prostitute in another city, which deposition she was induced to make at the direction of a man, as to whom, she said, “I do everything he tells me to,” it appearing she was a confessed victim of the cocaine habit, and the record of her testimony disclosing that while under examination before the commissioner she suffered a mental and nervous collapse for lack of the drug.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Bill filed by Ella W. Magee against John J. Magee for a divorce, charging defendant with cruelty and adultery. The ease was heard by the chancellor without a jury. From a decree dismissing the bill for want of equity, complainant appeals.
    Complainant urged as ground for reversal that upon the evidence adduced she established the averments of her bill and was entitled to a decree of divorce.
    Warren Pease, for appellant.
    George W. Plummer, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    William L. Newman, Administrator, Appellee, v. Barber Asphalt Paving Company, Appellant.
    Gen. No. 19,406.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chables H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed December 31, 1914.
    Rehearing denied January 20, 1915.
    Statement of the Case.
    Action by William L. Newman, administrator of the estate of James Vernon Meek, deceased, against the Barber Asphalt Paving Company, a corporation, to recover damages for wrongfully causing the death of plaintiff’s intestate, who was a boy six years of age. The plaintiff had verdict and judgment for thirty-seven hundred and fifty dollars. To reverse the judgment, defendant appeals.
    On July 21, 1909, and for about two weeks prior thereto, appellant was engaged in paving Jackson boulevard near the intersection of Lincoln street, or in repairing the pavement there. The asphalt was hauled to the job in dump wagons drawn by horses, and was not unloaded until it was required to be spread upon the pavement. About ten o’clock in the forenoon of the day named, several wagonloads of asphalt were hauled to the place where the work was in progress, and as the pavers were not then ready to spread all of the asphalt so then hanled, the drivers of the several wagons were directed to stop their teams and wait until called upon to dump their loads. Mooney, one of the drivers, stopped his team on the east side of Lincoln street, about seventy-five to one hundred feet south of Jackson boulevard, so that his wagon, stood about three feet from the curb. The horses were headed north and remained hitched to the wagon. Mooney got off his wagon and went to or near the southwest corner of the streets named, near which point other employees of appellant were then at work, and where other drivers had congregated, to await directions from the foreman, Luke, when and where to drive his team and unload his wagon. During the forenoon, after the wagon in question had stopped on Lincoln street, and while it was standing there, several boys, who lived in the immediate neighborhood, including the deceased, were playing on the east side of the wagon, sitting on the curb engaged in pulling out asphalt, or tar as they called it, with sticks or with their hands, from openings in the bed of the wagon and rolliing it into balls. When the noon hour arrived, Mooney, who was then standing in the street, ten or fifteen feet from his team, was told by Luke to feed his team, as his wagon would not be unloaded until after dinner. As Mooney advanced towards his team, or while he took hold of his horses’ heads for the purpose of leading them up, they moved forward two or three feet, and the right rear wheel of the wagon ran over the body of the deceased, causing injuries which resulted in his death.
    Calhoun, Lyford & Sheean, for appellant; Edward W. Rawlins, of counsel.
    A. W. Fulton, for appellee; Robert S. Cook, of counsel.

      Abstract of the Decision.
    1. Negligence, § 58

      —when failure to fasten team and wagon left standing on street not proximate cause of injury to child. Failure of the driver of a team and wagon to fasten the horses when standing upon a public street, held not to be the proximate cause of the death of a child by being run over by a wheel of the wagon, where the evidence shows the horses did not move a greater distance than they might have moved if they had been fastened, as horses are ordinarily fastened, when standing upon a street.
    2. Negligence, § 19*—extent of doctrine of attractive nuisance. The doctrine of “attractive nuisances” has not been extended to a team and wagon or other like vehicle standing or moving upon a street.
    3. Negligence, § 16*—when presence of team and wagon on street does not constitute. Negligence cannot be predicated upon the mere presence upon a street of a team and wagon either stationary or in motion.
    4. Negligence, § 16*—when driver leaving team and wagon on street not guilty of negligence. A driver of a team and wagon left standing upon a street, held not guilty of negligence where a child of tender years was run over by a wheel of the wagon when the team started up, it appearing that the driver did not know or had no reason to believe that the child was in a position of danger where he might be injured if the team started forward.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


author: Mr. Justice Duncan

text:
    Antonie Pospisil, Defendant in Error, v. Frank G. Hajicek, Plaintiff in Error.
    Gen. No. 19,164.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.

      Statement of the Case.
    Action by Antonie Pospisil against Frank Gr. Hajicek to recover the unpaid part of an alleged deposit of $1,200 made by plaintiff in defendant’s private bank. To reverse a judgment entered on a verdict in favor of plaintiff for $900, defendant prosecutes a writ of error.
    The record evidence disclosed that plaintiff and her husband were saloon keepers who usually kept a great deal of their money at their home, and were doing a profitable saloon business and were also keeping boarders, and that they were taking in from $50 to $100 a day. Both of them had had deposit accounts at the bank of defendant for years, and on August 10, 1910, plaintiff opened a new account in her name by then depositing in gold, currency and checks the sum of $1,200. She only made two deposits there after that date, one of $600, June 19,1911, and the other July 11, 1911, and she never checked any of said moneys out of the bank up to January 13, 1912. On said last date she went to the bank to collect her interest, and Rudolph Hajicek, brother of defendant, calculated her interest at something over $60, informing her of the interest due she said it was not enough. He replied: “How much interest do you want on $2,100?” She at once replied, “Lord, we have $3,000 here!” He then looked at the books of the bank and her pass book and told her, as she testified: “You have your money here, $3,100 with interest.” She asked him then to write it in her book, as she was then informed that her book did not show it. He testified that what he meant was that she and her husband both had over $3,000 there. He refused to credit her pass book further unless she would bring him some written evidence that she had made more deposits than her pass book showed. She and her daughter both testified positively that on July 11, 1911, she deposited $1,200,—$300 in gold and $900 in currency; that they both saw her husband count it the night before, and that on that day between one and two o’clock p. m. she carried it to the bank in her purse, the currency with a paper band around it marked “$900,” as the husband had fixed it the night before, and the gold tied up in a handkerchief; that Eudolph Hajicek counted it, made an entry in her pass book, slipped it into an envelope and handed it to her; that she returned to the saloon, found a large crowd there, threw the pass book into a drawer, and never saw it any more until she went back for her interest as aforesaid. Neither she nor her daughter' ever looked at the pass book, as they testified, until January 13, 1912, when they learned that it only showed $300 deposited July 11, 1911. The pass book and the deposit slip made out by Eudolph only showed a $300 deposit. Eudolph could only remember or testify as to the amount of the deposit by the pass book, the deposit slip and the bank books, and from these testified that she on that date only deposited $300, arid that the books showed it all to be currency. He also testified that the deposit slip showed it to be all currency. It was put in evidence and the original is in the record, and it clearly shows the $300 to be gold as the figures showing the amount are written in the space for gold, below the one just above for currency, thus corroborating her as to the amount of gold deposited on that date. The evidence also disclosed that the parties are all Bohemians, and that plaintiff cannot read English or Bohemian, but that she knows figures when she sees them. The daughter could read and write English.
    Smejkal, Klenha & Krasa, for plaintiff in error; Hwass & Luebeck, of counsel.
    Winston & Lowy, for defendant in error; Charles F. Lowy, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.

Abstract of the Decision.

1. Banks and banking, § 119 —effect of acceptance of pass book without examining entries therein. The reception of a pass hook by a depositor with the entries therein made without examining the same and without complaint constitutes an implied acquiescence in the correctness of the entries and makes the entries an account stated between the parties.

2. Banks and banking, § 119*—conclusiveness of entries in pass book. The acceptance of a pass book and an acquiescence by the depositor in the correctness of the entries therein are not conclusive on the depositor, but it requires clear and satisfactory proof to open up the transaction and recover for a mistake in the entries, as in the case of opening stated accounts between other individuals.

3. Banks and banking, § 118a*—when finding as to fact of deposit sustained by evidence. In an action to recover an unpaid part of an alleged deposit in defendant’s private bank, which amount the defendant denied was ever deposited, a verdict for plaintiff held supported by the evidence, it appearing that plaintiff was unable to read English, that she was corroborated in several particulars and that she had made only three deposits, so that she should have been able to know approximately how much she had in the bank, and it also appearing that both the plaintiff and defendant were guilty of negligence, the former in not examining the pass book before she left the bank, and the latter in not requiring the plaintiff to make out the deposit slip.

4. Appeal and ebbob, § 1401*—matters not considered in impeaching verdict. Neither the testimony of jurors nor of outsiders as to facts derived from members of the jury concerning their action as jurors can be considered by a court of review for the purpose of impeaching the verdict.

5. Banks and banking, § 118*—admissibility of evidence. In an action to recover an unpaid part of an alleged deposit in defendant’s private bank which defendant claimed was never deposited, permitting plaintiff to prove the profits of defendant in said bank for the last five years of its existence, held improper but not reversible error, it appearing that the defendant testified positively that he made no profits in the bank during that time, and his testimony was uncontradicted.

6. Appeal and ebbob, § 549*—when error in admission of evidence not preserved for review. The improper admission of evidence is not preserved for review where the record shows no ruling of the court on the question of its relevancy or competency, and hence no exception to any such ruling.


text:
    Michael Zimmer, Sheriff, for use of Thomas M. Hunter, Bailiff, Defendant in Error, v. Lyon & Healy and Thomas Cratty, Plaintiffs in Error.
    Gen. No. 19,186.
    1. Judgment, § 206

      —when joint judgment may be entered on verdict against “the defendant.” A verdict against “the defendant” in a case where there are two or more defendants is sufficient to support a judgment against all the defendants, where it is responsive and the evidence in the record amply warrants a verdict and .judgment against all the defendants.
    2. Appeal and errob, § 1522*—when irregularity in form, of verdict not reversible error. Where a judgment must necessarily he against all the defendants or against none, the fact that the jury rendered a verdict against “the defendant,” without other designation, instead of against the defendants is a mere irregularity and not reversible error where the defenses made were common to all the defendants.
    3. Replevin, § 208*—when informal verdict in suit on bond may be corrected by court. In an action on a replevin bond, where the verdict was informal in not showing a finding of the amount of the debt, the court may correct the verdict, and put it in proper form.
    4. Replevin, § 212*—when entry of judgment on informal verdict harmless. Where a verdict in a suit on a replevin bond is informal in not showing a finding of the amount of the debt, the entry of a judgment on such verdict is harmless.
    5. Attachment, § 259*—when “half sheet’’ does not purport to constitute judgment or evidence as to issuance of special execution. An instrument designated to be a "half sheet,” which was apparently the clerk’s memoranda or the judge’s minutes in an attachment proceeding, held not to purport to be the record of attachment judgment or the language of the judgment, and not to constitute evidence that no special execution was issued on the attachment judgment.
    6. Attachment, § 158*—duration of lien after judgment. Property levied on in an attachment suit is in contemplation of law in the hands of the officer making the levy, and his possession for the use of the attachment creditor is sufficient possession to prevent the acquiring of a superior lien during the interval between judgment and the issuing of a special execution, if such execution is issued in a reasonable time.
    7. Replevin, § 169

      ^nohat not a defense in suit on bond. Where the seller of property under a condition contract of sale replevied the property from an officer, who attached the property while in the possession of the buyer and the replevin suit was decided in favor of the officer, held in a suit on the replevin bond that the seller was in no position to urge that the attachment lien was lost for failure of the attachment creditor to have a special execution issued in the attachment suit, where it appeared that he failed to return the property and that under a writ of retorno habendo the officer was unable to find the property so that it could be sold under such execution.
    8. Replevin, § 192*—when judgment on bond not excessive. In an action on a replevin bond, a judgment in favor of plaintiff for $100 held not excessive.
    9. Attobney and client, § 52*—presumption as. to retainer. In the absence of proof to the contrary, the legal presumption is that the attorney who brings a suit in the name of another has been retained for that purpose.
    10. Replevin, § 203*—when evidence malees prima facie case for plaintiff in suit on bond. In an action on a replevin bond, evidence held sufficient to establish a prima facie case for plaintiff, where it showed that plaintiff had attached the property while in the hands of the obligor’s vendee under a condition contract of sale, that pending that suit the defendant replevied it and that the replevin suit was decided in the plaintiff’s favor.
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Charles S. Knudson, for plaintiffs in error.
    J. Scott Matthews, for defendant in error; Edward B. Lucius, of counsel.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

In an action of debt on a $300 replevin bond, judgment was entered for $100 as damages against Lyon & Healy, a corporation, as principal, and Thomas Cratty as surety, plaintiffs in error, in a jury trial. The affidavit of defense is, in substance, that in the replevin suit no evidence was heard upon the merits; that that suit was dismissed for want of prosecution and that judgment was entered therein for defendant in error awarding the writ of rotorno habendo without costs; that a valid writ of rotorno habendo was never issued therein and that defendant in error had no valid claim or lien on the property replevied; that plaintiff in error. Lyon & Healy was the owner of the Victrola and the ninety-nine records replevied prior to and at the beginning of this suit, and still is the owner thereof.

To sustain his suit defendant in error introduced in evidence the replevin bond in the replevin suit of “Lyon & Healy v. Thomas M. Hunter, bailiff,” a certified copy of the judgment in replevin, a document designated as “half sheet” in the replevin case and showing the issue of the writ of retorno habendo, the writ of rotorno habendo and the return thereon showing demand on Lyon & Healy and a failure to find or obtain the property replevied; and, also, proof of the value of the property replevied with a stipulation that $20 was a reasonable attorney’s fee for prosecuting the replevin suit, if allowable; and a conditional sale note to Lyon & Healy for $150, dated October 7, 1910, payable in monthly instalments of $10 with 6 per cent interest, the first of which was due November 7, 1910, signed by J. Carlisle De Vries, in whose hands the property had been attached August 23, 1911, by Chicago Men Specialist Company, beneficial plaintiff in the court below in the instant suit, said note providing that the title to said Victrola No. 16 shall remain in the vendor, Lyon & Healy, as long as any part of said note remains unpaid, etc., with indorsements showing $80 paid thereon.

For the purpose of showing that no execution ever issued “on the attachment judgment,” as stated to the court, plaintiffs in error offered in evidence a document designated as “half sheet” in said attachment suit, on which sheet, among other entries, are the following, to wit:

“Date 1911
9/1 Postp to October 16—9:30 a. m. Pub.
10/25 Deft defltd on noc by pub
11/2 das assess by Ct Three hundred sixty seven
33/100 dol ($367.33) attach sust judg on deflt & assmt das v deft Three hundred sixty seven 33/100 dol ($367.33) &c & spec, exec. ’ ’

They also offered in evidence the attachment writ in said suit and the affidavit showing the attachment of personal property of J. Carlisle De Vries other than said Victrola and the records, and said conditional sale note, and a written demand upon defendant in error for the return of the Victrola and records to Lyon & Healy, dated September 12, 1911. The usual motions for a directed verdict for plaintiffs in error were denied by the court.

The verdict of the jury was: “We, the jury, find the issues against the defendant—, and assess the plaintiffs’ damages at the suim of One hundred and No/100 dollars ($100.00).” The judgment entered by the court, as certified by the clerk and by the trial judge in the stenographic report of the proceedings before the court at the trial, was against all the plaintiffs in error for $100 damages and costs of suit. A verdict against “the defendant” in a case where there are two or more defendants is sufficient to support a judgment against all the defendants where it is responsive and the evidence in the record, as in this case, amply warrants a verdict and judgment against all of the defendants. This judgment must necessarily have been against all the defendants or against none of them, and the fact that the jury rendered a verdict against “the defendant” without other designation, instead of against the defendants, is a mere irregularity and is not reversible error, as the defenses made in the case were common to all the defendants, every one of which must necessarily fail as to all of the defendants if it fails as to any one of them. West Chicago St. R. Co. v. Horne, 197 Ill. 250.

'The verdict is also informal in not showing a finding of the amount of defendant in error’s debt which every one connected with. the suit at all times knew to be $300, the amount of the replevin bond. The jury found the issues against the defendant and found the amount of damages defendant in error was entitled to recover, and those were the very subjects of inquiry and the only ones unknown at the beginning of the trial. The court had a right to correct the verdict and put it in the proper form, but the entry of judgment on it as returned is harmless error under sections 2 and 3 of the Statutes of Amendments and Jeofails. (J. & A¡ ff 301, 302), and section 77 of the Practice Act, (J. & A. jf 8614). Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98; George J. Cooke Co. v. Burke, 148 Ill. App. 155.

The judgment in attachment appears to have been rendered November 2,1911, for $367.33, with an order for a special execution. The property attached was replevied by Lyon & Healy and received thereby by it September 18, 1911, and it has been so disposed of by it that the officer was not able to obtain or locate the same, as shown by the return on the writ of rotorno habendo. It is now claimed by plaintiffs in error that the lien of the attachment was lost to defendant in error, because no execution was issued immediately after the judgment in attachment was rendered, and that the judgment itself with order for special execution was no lien on the property, and that the lien acquired by the service of the attachment was merged in the judgment and thereby lost or suspended until execution shall issue. It is thereby argued that Lyon & Healy’s title became superior to that of defendant in error the moment judgment in attachment was rendered, as it then had the property in its possession and to which it was entitled as against all the world, except as to creditors or purchasers of its vendee securing prior rights thereto, while in the hands of such vendee. It is also claimed that there is no valid judgment in attachment and that the record so shows by the document of plaintiffs in error introduced in evidence and designated as “half sheet” in the attachment suit. Those positions are untenable. The “half sheet” referred to was not proved to be and does not purport to be the record of the judgment in attachment or the language in that judgment. There is, therefore, absolutely no evidence in the record as to what is the language or form of that judgment, and, therefore, the cases of Stein v. Meyers, 253 Ill. 199, and City of Chicago v. Mitchell, 256 Ill. 236, holding that a judgment in the language or abbreviations found in said “half sheet” is not in the English language and, therefore, invalid, are not in point here. That “half sheet” is apparently the clerk’s memoranda or the judge’s minutes in the attachment suit, showing the different steps taken in the case, and was not offered as the judgment or record of the judgment, but for the purpose of showing that no execution was issued, a fact which the judgment record would not ordinarily show. There is no other proof than the “half sheet” to show there was no execution issued, and the sheet does not amount to such proof. We do not know what that “half sheet” is and the record does not advise us. We cannot assume in the absence of proof that the judgment in attachment was void, or that no execution issued thereon. A similar “half sheet” was exhibited by defendant in error in the replevin suit with similar strange language or abbreviations. The certified copy of the judgment in replevin was entirely different and written in good English. Hence, we conclude the “half sheets” referred to must be mere minutes of those judgments. If there was a valid judgment in attachment for $367.33 with an award of a special execution, as indicated by the record, it would be a lien on the property attached dating from the levy of the attachment, and would continue to be such a lien thereon for at least a reasonable time without the issuance of an execution. Moore v. Hamilton, 7 Ill. 429; Martin v. Dryden, 6 Ill. 187; A. D. Juilliard & Co. v. May, 130 Ill. 87.

The property levied on in an attachment suit is, in contemplation of law, in the hands of the officer making the levy, and his possession for the use of the attaching creditor is sufficient possession to prevent the acquiring of a superior lien during the interval between judgment and the issuing of the special execution, if it issues in a reasonable time. That possession of the officer was interfered with by Lyon & Healy in its replevin proceedings, and until it returned the property to the officer as it was legally required to do by the order of the court in the replevin suit, it was 'not in a position to complain of the failure of a special execution to issue in the attachment suit. No sale of the property could be made until the property could be found, and that was sufficient excuse for. not issuing the execution, if it was not issued.

The evidence of the defendant in error made a prima facie case, and he was entitled to recover unless plaintiffs in error proved their allegations that Lyon & Healy was the owner of the property. replevied, or that it had a superior lien on the same, or that defendant in error had no right or .claim to the property whatever. The burden of proof was upon them to prove those allegations, and failing to prove any of them judgment was properly given to defendant in error. Magerstadt v. Harder, 199 Ill. 271.

The damages were not excessive. The proof was ample that the reasonable cash value of the Victrola was $80 or more, and defendant in error was properly allowed $20 more for attorney’s fees. The judgment in attachment was for $367.33, and there is no evidence in the record that all the other property levied on including the Yictrola was worth more than that sum.

The proof in this record did not show that defendant in error’s attorney was not authorized to bring and prosecute this suit. In the absence of proof to the contrary, the legal presumption is that the attorney who brings a suit in the name of another has been retained for that purpose. Bell v. Farwell, 189 Ill. 414.

The conditional sale note which permitted the possession of the Yictrola to remain in the vendee was invalid as against attaching creditors of the vendee, and its introduction by defendants in error did not debar him from recovery. The evidence disclosed, that defendant in error had attached the property in the hands of the vendee, and that pending that suit Lyon & Healy replevied it from the officer, and that the replevin suit was decided in the officer’s favor. That was a prima facie showing that defendant in error was entitled to recover in this suit which plaintiffs in error never overcame.

No reversible errors are shown in the record, and the judgment is affirmed.

Affirmed.


text:
    Charles H. Mason, Defendant in Error, v. Erik L. Krag and A. L. Thompson, Plaintiffs in Error.
    Gen. No. 19,207.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Charles H. Mason against Erik L. Krag and A. L. Thompson to recover a sum claimed to be due on a promissory note executed by defendant to plaintiff, dated August 17, 1910, and payable to the order of plaintiff October 1, 1910, with six per cent, interest after maturity. A jury trial was waived and the court found for plaintiff in the sum of $112.25. To reverse a judgment entered on the finding, defendants prosecute a writ of error.
    John J. Lupe, for plaintiffs in error.

      Abstract of the Decision.
    1. Appeal and ebrob, § 1414

      —when finding of trial court will not. he disturbed. Where no propositions of law were submitted, the findings of the court on the issues of fact are binding upon the Appellate Court the same as a verdict of a jury, when.not manifestly against the weight of the evidence.
    2. Usury, § 81*—when cannot he urged on review. Error of court in allowing usurious interest in a suit on a promissory note, cannot be urged on review where the record does not show the defense of usury was insisted upon by a plea, or a notice or claim of such defense in the trial court
    Charles Lane, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    B. A. Thorpe, Defendant in Error, v. Max Weber and David B. Weber, Copartners, trading as Weber Brothers, Plaintiffs in Error.
    Gen. No. 19,242.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court . at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by B. A. Thorpe against Max Weber and David B. Weber, trading as Weber Brothers, to recover for procuring a tenant for a hotel in Chicago for a period of ten years, at an annual rental of $3,600. Plaintiff’s claim was for five per cent, of the first year’s rental and one per cent of the last eight years ’ rental. Plaintiff recovered a judgment for $468. To reverse the judgment, defendants prosecute error.

      The facts show that defendants sent out circulars and that plaintiff received one of them, which was signed “Weber Bros., 1924 State St.” The circular contained these words:
    “For rent, the following:
    * * * Columbus Hotel, 1840 Wabash Ave. 60 Boom Steam Heat, $4,200 per annum.
    Will pay real estate board commissions for good tenants.”
    Thereafter plaintiff answered the circular by letter to defendants saying, in substance, that Mr. Deffler of plaintiff’s office had interested Messrs. Schultz and Field, of the Inter-Ocean Hotel, and that they had made a substantial offer for a lease on the property, and asked defendants to kindly protect him with reference to the regular real estate board rate of commission and he would give the prospective lessees proper attention. Plaintiff then sent Deffler to defendants to confer with them and they accepted his services, and by his efforts the lease in question was consummated and signed by Field, one of the parties mentioned in defendant in error’s letter.
    It appeared that plaintiff was duly licensed as a real estate broker but that Deffler was not, and that a city ordinance of Chicago provided as follows:
    “Any person employed by a person or corporation licensed as a broker under the provisions of this chapter who shall himself engage in the business or act in the capacity of a broker, shall notwithstanding the fact of such employment be amenable to all the provisions of this chapter and shall be required to take out a broker’s license.”
    Defendants urged as ground for reversal of the judgment: (1) Because the contract for commissions was made by defendants and one Mr. Deffler, an unlicensed broker, on his own behalf, or with him as the agent of plaintiff, and that Mr. Deffler made the entire negotiations with the tenant, Stanley Field, and that the contract was against the provisions of the city ordinances and void; (2) that plaintiffs’ claim is based upon a quantum meruit and that there is no evidence to sustain such a claim; (3) that the evidence showed a contract with Deffler that the commission for obtaining the tenant should be for the exact sum of $200.
    Abstract of the Decision.
    1. Bbokebs, § 4

      —when ordinance does not require license of broker's employees. A city ordinance requiring a license to be taken out by an employee of a broker where he shall himself engage in the business or act in the capacity of a broker, held not to apply to mere employees of brokers, though they are paid for their work a certain portion or per cent, of the commissions.
    2. Bbokebs, § 70*—when suit for commissions not based on quantum meruit. A suit for brokerage commissions held not based, on a quantum meruit count, where the statement of - claim simply discloses that plaintiff is suing for “real estate board commissions” promised in a circular letter, and specifies the claim further by stating the rental named in the lease and that the claim is for certain percentage of the annual rentals.
    3. Appeal and eebob, § 1506

      —when refusing to permit cross-examination harmless error. Error of court in refusing to permit defendants to cross-examine some of plaintiff’s witnesses held harmless where the witnesses were thereafter thoroughly examined by defendants with reference to all matters inquired of them by plaintiff.
    A. L. Weber, for plaintiffs in error; George F. Ort, of counsel.
    Henry Horner, for defendant in error; Arnold Heap, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    The Standard Brewery, Plaintiff in Error, v. Charles A. Johnston, Defendant in Error.
    Gen. No. 19,218.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fishes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by The Standard Brewery, a corporation, against Charles A. Johnston to recover $1,000 which plaintiff claimed to be entitled to as liquidated damages because of a breach of the following contract:
    “This agreement, witnesseth, that in consideration of the sum of $600 in hand to him paid by the Standard Brewery, a corporation of Illinois, and the loaning to him by said Standard Brewery of a complete set of saloon fixtures, Charles A. Johnston, hereinafter designated as the vendee, hereby agrees to purchase from the Standard Brewery, a corporation of the State of Illinois, its successors and assigns, hereinafter called the vendor, and from no other person, firm or corporation, all the domestic beer sold by him or his agents or servants, at or about his saloon located at 3627 North Clark street, Chicago, Illinois, for cash on delivery at the rate of the usual market price of the Standard Brewery for beer, at the time of delivery, from the first day of November, 1907, to the 31st day of October, 1912, and that he will not sell or lease his said saloon to any person or persons who do not make an agreement similar to this with said vendor.
    “In case said vendee, his heirs, successors or assigns shall fail or neglect to purchase all the domestic draft beer required by him or them, at said premises from the vendor, during the term above specified, or in case of any breach of this agreement on his part, then the said vendee or his heirs shall pay the said vendor $1,000. If said vendee, his heirs, successors or assigns have domestic beer of other manufacture than that of the vendor’s upon said premises it shall be taken and deemed to be conclusive evidence of a violation of this covenant and entitle said vendor to damages as herein specified.
    “It is further agreed that said brewery will furnish said Johnston for his use during above said term a city saloon license, which said Johnston will from term to term assign to above said brewery, and return it to said brewery at the end of said five years.
    “And by its acceptance hereof said vendor hereby agrees to sell to said vendee or his assignee all of the domestic beer of the manufacture of said vendor required by him in his saloon upon said premises, upon the above terms and conditions.
    “(Signed) .Charles A. Johnston (Seal).
    Accepted:
    The Standard Brewery
    (Signed) By August J. Dewes,
    Vice-President.”
    It is not denied that defendant, after having for four years and a half faithfully performed all the covenants in the contract to be kept by him and when the contract had but six months more to run, violated the terms of the agreement by selling or renting his saloon to a person who did not enter into a contract with plaintiff of like import to the one sued on, and who did not buy all the domestic draft beer used in his business of plaintiff in error. On the trial plaintiff introduced the contract sued on, in evidence, and offered to prove facts from which the amount of the prospective profits of plaintiff in error for the six months during which defendant in error did not purchase from it all the domestic draft beer used in the saloon in question, if the contract had been performed, could be estimated. This proof was objected to by defendant and excluded by the court for the reason that plaintiff had limited itself in its affidavit of claim to recovery on the basis of liquidated damages. At the end of the case made by the plaintiff, the court instructed the jury to find the issues for the defendant. On the verdict returned in pursuance to that instruction, judgment was entered against plaintiff in bar of its action for costs. To reverse the judgment, plaintiff prosecutes error.
    Abstract of the Decision.
    1. Damages, § 89

      —when sum named in contract shown to he intended as liquidated damages. When a specific amount is named in a contract as damages to be paid in case of breach, it is a circumstance tending to show the intention to constitute that amount liquidated damages, provided the amount so named is based upon and substantially limited by just compensation.
    2. Damages, § 89*—when sum named in contract will he construed as a penalty. Unless a sum named in a contract as damages for a breach thereof is based and substantially limited by just compensation, and particularly when the amount is so grossly disproportionate to the amount of damages that could result from the breach as to be oppressive and unconscionable and extortionate, courts will declare the intention of the parties to provide a penalty, even though the words “liquidated damages” are used in the contract.
    3. Damages, § 89*—when sum named in contract construed as penalty. Where a saloon keeper and a brewing company entered into a contract whereby the former agreed for five years to purchase certain beer of the latter exclusively and not to sell or lease the saloon to any other who did not enter into a similar agreement, and the contract provided that in case of a breach thereof the saloon keeper was to pay the company $1,000, the stipulated sum was construed as having been intended as a penalty instead of liquidated damages for the reason that the contract was to run for a period of years and that therefore the damages which would result would depend on the time of the breach, and to exact the sum named in case of a breach shortly before the expiration of the contract would be oppressive and unconscionable and not in accord with the idea of just compensation.
    Baker & Holder, for plaintiff in error.
    Fred Plotke, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Chicago Form Company and M. H. Cazier, Appellees, v. George G. Greenburg and Henry Duckgeischel. George C. Greenburg, Appellant.
    Gen. No. 19,246.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscab M. Tokeison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Rehearing denied January 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Chicago Form Company, a corporation, and M. H. Cazier against George G. Greenburg and Henry Duckgeischel to recover for money paid out by plaintiff for the defendants.
    The facts showed. that defendants were about to form a corporation to be known as the “Green-Duck Company” for the manufacture of some metal specialties. Being desirous of securing the room described in the lease hereinafter mentioned, to be occupied by the Green-Duck Company when it should become incorporated, they induced M. H. Cazier, who was president of the plaintiff Company, to secure a lease thereof, for them. The lease was to be taken in the name of the Chicago Form Company and M. H. Cazier, as lessees.
    Cazier secured from one Warren Springer the lease desired for a term beginning December 1, 1906, and ending April 30,1912, at a monthly rental of $175, and paid the first month’s rent therefor. On December 18, 1906, the following agreement in writing was executed;
    “This Agreement between the Chicago Form Company, and M. H. Cazier of Chicago, Illinois, parties of the first part, and George G. Greenburg and Henry Duckgeischel of Chicago, Illinois, parties of the second part.

      “Witnesseth, that whereas the party of the first part has leased for a period beginning December 1, 1906, and ending April 30,1912, from Warren Springer, certhin tenement known as the fifth floor of No. 300 South Clinton street.
    “It is agreed between the parties hereunto that the said premises shall be used and occupied, during the term aforesaid, or until otherwise contracted for by the parties hereunto, and all rents and damages claimed by the owner or landlord, shall be met and satisfied by the parties of the second part, and they do hereby agree to protect and save the said party of the first part from all liability arising out of said lease.. This in consideration of their use and occupancy of the premises.
    Chicago Form Company,
    M. H. Cazier,
    Geo. G. Greenburg,
    Henry Duckgeischel.”
    It seems to be conceded that Greenburg and Duckgeischel occupied the premises until the Green-Duck Company was incorporated which was in the early part of January, 1907; that the first month’s rent was repaid to Cazier by Greenburg and Duckgeischel, and that after the Green-Duck Company was incorporated it occupied the premises until about January 31, 1910, and paid all the rent directly to Warren Springer, the landlord.
    On April 24,1911, by virtue of the power of attorney contained in the lease a judgment was confessed in the Municipal Court in favor of Springer, the landlord, and against plaintiffs for $2,025 and costs, which was for eleven months’ rent at $175 per month, amounting to $1,925 and $100 attorney fees. The costs in that case were $13, making the total amount of the judgment and costs $2,038. Of this judgment appellant had notice, but there is nothing in the record to show that he ever took any steps either to have it vacated or to pay it or to prevent plaintiffs from being forced to pay it. This judgment was satisfied December 19, 1911, and appellees’ claim it was paid in full by them. Thereafter this suit was instituted. Plaintiffs in their affidavit of claim relied on the contract of December 18, 1906, heretofore set out and also on a claimed contract of January 8, 1907. The execution of the contract of January 8, 1907, was denied by appellant both in his affidavit of defense and on the witness stand. He also, introduced in evidence a special finding by a jury in another "case as tending to prove that it had not been executed. The court thereupon excluded from the consideration of the jury all evidence as to its execution. The jury found the issues against the defendants and assessed the plaintiffs’ damages at $2,038. Prom a judgment on this verdict, defendant George G. Greenburg alone appeals.
    Abstract of the Decision.
    1. Appeal and ebbob, § 998

      —when record fails to show error in the admission of evidence. A written contract is not shown to have been erroneously admitted in evidence for the reason it was superseded by and merged in a subsequently-executed contract.
    2. Evidence, § 320*—parol evidence. ' Proof of matters antecedent to the malting of a written contract, held not improperly admitted where the proof related to the circumstances under which a lease, referred to in the contract, was made, and did not refer in any way to the contract.
    3. Contbacts, § 366*—right to recover on one contract where two contracts declared on. The fact that plaintiff in his affidavit of claim relies on two different contracts with the defendants, one as an original undertaking and the other as a guaranty, held not to prevent a recovery on the original undertaking when the same and its breach is established by the evidence, and the evidence of the contract of guaranty is excluded from the record at the instance of defendant.

      Gentzel & Crane, for appellant Greenburg.
    Gideon S. Thompson, for appellees.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

4. Indemnity, § 5 —binding effect of temporary agreement. A contract to protect a party from liability on a lease, to be binding “until otherwise contracted for by the parties,” held intended to be in a sense a temporary arrangement, but to continue in force until the expiration of the lease unless sooner abrogated by another contract.

5. Indemnity, § 11*—when contract covers attorney’s fees. A contract to indemnify a party against any damages sustained on account of its liability-as the lessee in a lease, held to cover attorney’s fees and costs where a judgment against such party was entered by confession on a power of attorney contained in the lease, with a provision therein for attorney’s fees.


text:
    John J. Shea, Appellee, v. Paul J. Morand, Appellant.
    Gen. No. 19,379.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chables H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by John J. Shea against Paul J. Morand for malicious prosecution. To reverse a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Defendant had procured the arrest of plaintiff on a charge of embezzlement, and on a hearing before a justice of the peace plaintiff was discharged.
    The charge of embezzlement was based on the claim that plaintiff, while an agent of defendant, had collected money belonging to defendant and had appropriated it to his use. The undisputed facts were that before the complaint was made on which the warrant for the arrest of plaintiff was issued, defendant went to his regular' attorney, who for years had transacted for him such business as required the services of an attorney, and fairly and fully submitted to him all the facts within his knowledge concerning the charge that was eventually lodged against plaintiff. On the following day the attorney went to the office of defendant and examined the books of defendant pertaining to the matter and talked with the bookkeeper and the cashier and again talked with defendant, going over the facts with each separately. The attorney then advised that a demand be made on plaintiff for the money, which was done, with the result that plaintiff refused to turn it over. The attorney then advised defendant that plaintiff was guilty of the crime of embezzlement and advised him to ‘ ‘ swear out a warrant. ’ ’ Acting on this advice, the complaint on which the warrant in question was issued was made.
    Abstract of the Decision.
    1. Malicious prosecution, § 75

      —when evidence shows defendant did not act without probable cause. In an action for malicious prosecution, the course pursued hy defendant in having plaintiff arrested for embezzlement, as shown hy the uncontradicted evidence, held to successfully rebut any presumption of malice, and to conclusively establish the fact that defendant did not act without probable cause.
    2. Malicious prosecution, § 13*—when person acting on advice of counsel not liable. Where a prosecuting witness presents all the facts within his knowledge, or that he could have ascertained by reasonable diligence, fairly and without reserve to a State’s Attorney or some other lawyer of re'cognized ability and good standing, and in good faith acts on his advice, he cannot he held responsible in an action for malicious prosecution.
    Thomas E. Rooney and Ferdinand Goss, for appellant.
    No appearance for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Western Coal & Mining Company, Defendant in Error, v. Western Coal & Supply Company, Plaintiff in Error.
    Gen. No. 19,418.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henby C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Rehearing denied January 13, 1915.
    Statement of the Case.
    Action by the Western Coal & Mining Company, a corporation, against the Northern Coal & Supply Company, a corporation, to recover $132.90 alleged to be due upon an open account for coal sold and delivered to defendant. Defendant filed a set-off claiming damages to the amount of $504 for an alleged breach of the contract under which the coal was furnished. Upon a trial by the court without a jury, plaintiff had judgment, to reverse which, defendant prosecutes a writ of error.
    Both the parties were engaged in the business of mining and selling coal. The plaintiff’s office was at St. Louis, and the defendant’s at Chicago. On January 9, 1912, the defendant gave a written order to the plaintiff for twenty-five cars of washed coal at the price of forty cents per net ton f. o. b. at the mines, to be shipped at the rate of three cars a day. The plaintiff accepted the order with the qualification that it would ship only one car a day. To this qualification the defendant agreed, in a letter dated January 13, 1912, in which defendant urged greater speed if possible and indicated that it expected deliveries to begin at once. No deliveries were made, however, until February, and only eleven cars in all were delivered. Between the date of the order and March 13, 1912, a number of letters were written by defendant to the plaintiff complaining of the delay and urging its need of more coal, to which the plaintiff replied by claiming that cold weather and a scarcity of ears had prevented it from shipping any faster. On March 13, 1912, defendant telegraphed: “Have sold coal and must deliver. Are you going to fill order?” To this, the plaintiff replied by mail that it would not be able to make any further shipments, for the reason that its “entire output will go out from the present time on, as mine run for railroad use.” In this letter the plaintiff also expressed the hope that the defendant was “protected on the sale of this coal by delays in transportation, scarcity of cars, and other causes over which ' you have no control, which is the occasion for our failure to complete this order as placed.” On March 25, 1912, defendant wrote to the plaintiff, stating that it had sold the “14 cars due us on this order” at an advanced price of $648, that “our customers were compelled to go on the market and buy coal and we will suffer heavy damages, and we will be compelled to pass the same along to you,” adding further: “We regret, therefore, to be compelled to advise you that we will hold your account to reimburse us against any loss for non-fulfillment of this order.” At the time this letter was written nothing had been paid for the coal that was delivered, nor had any demand been made upon the defendant for such payment.
    Vroman, Munro & Vroman and Sidney N. Ware, for plaintiff in error.
    Whitnel & Browning and Pomeroy & Martin, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 175 —when proof of general custom, as to time for payment competent. In an action for the value of coal sold, where the defendant filed a claim of set-off for an alleged breach of the contract, evidence offered by defendant to show there was a general custom among coal dealers to pay for their coal during the month following the shipment, held competent to show that defendant was not in default at the time of plaintiff’s breach of the-contract.

2. Sales, § 320*—right to set-off or recoup damages in suit for price. The fact that a buyer of coal had uot paid therefor does not preclude him in a suit for the price from setting off or recouping damages suffered by him on account of the breach of the contract in not furnishing the stipulated quantity of coal where he was not in default in making payment, for the reason the parties acted upon the understanding that the price was not to be paid until all the coal was delivered.


text:
    E. W. Shirk, Plaintiff in Error, v. Birk Brothers Brewing Company, Defendant in Error.
    Gen. No. 19,458.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 31, 1914.
    Rehearing denied January 13, 1915.
    Statement of the Case.
    Action of fourth class in the Municipal Court by E. W. Shirk against Birk Brothers Brewing Company, a corporation, to recover $357.50, alleged to he due to plaintiff by the terms of a written lease for May rent for the year 1912, of certain premises in Chicago. Upon a trial by the court without a jury, judgment was entered in favor of plaintiff for $27.50. To reverse the judgment, plaintiff prosecutes a writ of error.
    The plaintiff’s statement of claim avers that on March 28,1912, the plaintiff “executed and delivered” to defendant, a written lease of the premises in question, for a term beginning May 1, 1912, and ending April 30, 1913, at a rental of $357.50 per month, payable in advance; that defendant “accepted the said lease” and took possession of the premises “thereunder,” but did not pay the rent for May, 1912, when it became due under the terms of the lease.
    The defendant’s amended affidavit of merits states that defendant has a good defense, upon the merits, to all except $27.50 of the plaintiff’s demand. It denies, however, that defendant either “accepted the lease mentioned in the statement of claim,” or went into possession under it, and then avers, in substance, that prior to April 30, 1912, the defendant was in possession of the premises under a lease providing for a monthly rental of $330; that a fire occurred" there in January, 1912, that soon after, a verbal agreement was made, to the'effect that “in consideration of the defendant’s renting the said premises at an increased monthly rental, to-wit, $357.50, the defendant would be allowed the sum of $330 by the plaintiff to compensate the defendant for the damages suffered through the aforesaid fire;” that “defendant has tendered $27.50, being the difference between the monthly rental due on the first day of May, 1912, and the said $330;” and that said tender was refused by the plaintiff..
    Ullmann, Hoag & Davidson, for plaintiff in error.
    Lackner, Butz, von Ammon & Johnston, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 6 -—when evidence shows refusal of tenant to accept written lease. Evidence held to show that a tenant did not accept a written lease, although he signed one of the duplicates, where he afterwards scratched out his signature and sent it to the landlord stating that he refused to he hound thereby for the reason it did not include a certain oral agreement, and this although the evidence showed that he did not return the other duplicate, which was not signed by him.

2. Landlord and tenant, § 330*—form of judgment when proof fails to establish lease sued on. In an action based solely on a written lease, where the defendant denied his acceptance thereof and set up a different contract under which he conceded he owed plaintiff a certain sum, held that on failure of plaintiff to prove the lease sued on, and his failure to amend his statement of claim, the court could enter only a judgment of dismissal or for the defendant for costs, and that it was error to enter a judgment in favor of plaintiff for the amount conceded by defendant to be due upon the other contract.

3. Set-off and recoupment, § 18*—claims of recoupment. A claim of recoupment must arise out of the contract upon which the suit is brought, ór be connected in some manner directly therewith.

4. Set-off and recoupment, § 37 —necessity of proving contract out of which claim for recoupment arises. Where a plaintiff fails to prove the contract sued on, the defendant cannot prove another and different contract and then recoup damages for its breach.


text:
    The Frederickson Company, Defendant in Error, v. S. A. Lewinsohn, Plaintiff in Error.
    Gen. No. 19,754.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.,
    Statement of the Case.
    Action in the Municipal Court of Chicago by The Frederickson Company, a corporation, against S. A. Lewinsohn to recover the price of goods sold and delivered. The plaintiff’s statement of claim is “for goods, wares and merchandise bargained, sold and delivered by the plaintiff to defendant at the special instance and request of defendant,” which merchandise consisted of 1,000 “daily pad” calendars delivered to defendant at different times between December 9, 1912, and December 30, 1912. The affidavit attached ' to the statement of claim states that this is a suit “upon contract for the payment of money; that the nature of the plaintiff’s demand is for goods, wares and merchandise sold and delivered as above set out in the amended statement of claim,” and that there is due to the plaintiff three hundred dollars, etc.
    To this statement of claim, plaintiff in error filed an affidavit of merits, stating that he had a good defense upon the merits of the whole of the plaintiff’s demand; “that said goods, wares and merchandise were not the goods, wares and merchandise which were sold to the defendant, in that (1) they did not contain the reading matter which the plaintiff" agreed should be placed upon the same,” viz., the words “corner of Dearborn street;” (2) the calendars “were to be securely fastened to a double mat,” and were not, in fact so fastened; (3) the calendars “were to be numbered consedutively according to the day of the month and year, ’ ’ and were not so numbered; (4) “said goods and merchandise should have been delivered on the first day of December, 1912, but the same were not so delivered;” and that the alleged defective condition of the calendars was not discovered, and defendant was unable to discover the same, until the calendars had been in use for several months, and the “wear and tear incident to the use which they were put to revealed that condition.”
    On motion, this affidavit of merits was stricken from the files and judgment was entered, as by default, for want of a sufficient affidavit of merits. To reverse the judgment, defendant prosecutes a writ of error.

      Abstract of the Decision.
    s 1. Sales, § 823

      —when affidavit of merits does not state valid defense. In an action to recover the price of pad calendars sold and delivered, an affidavit of merits alleging that the calendars were in defective condition and not the same as ordered, and in effect admitted that defendant received and used the calendars and did not return or offer to return them at any time, held not to state a valid defense, where it did not allege that there was any express warranty of the quality or condition, that plaintiff was a manufacturer of the calendars or that they were made to order.
    2. Sales, § 323*—when affidavit of merits does not state valid defense. In an action for the purchase price of goods sold and delivered, an affidavit of merits setting up as a defense that the goods were not delivered at the time agreed upon, held not to state a valid defense, where there was no averment that defendant was damaged thereby, and the averment was apparently inserted in the affidavit only as one of the alleged facts supporting the theory that the goods delivered “were not the goods sold.”
    Defendant urged as ground for reversal that the affidavit of merits stated a good defense to plaintiff’s claim and that the court erred in striking it from the-files and entering judgment.
    Leslie H. Whipp, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.

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

   Mr. Presiding Justice Fitch