author: Mb. Pbesiding Justice Goodwin

text:
    Mrs. Barbara Davis, Appellee, v. Mitchell Automobile Company, Appellant.
    Gen. No. 21,936.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 322

       — when parol inadmissible to vary written contract. A written contract for the sale of an article cannot be varied by evidence of a subsequent parol agreement for which there was no consideration.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the- Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by Mrs. Barbara Davis, plaintiff, against the Mitchell Automobile Company, defendant, to recover the purchase price of an automobile sold by defendant. From a judgment for plaintiff, defendant appeals.
    E. W. Clabk and G-. D. Wellington, for appellant.
    West & Eckhabt, for appellee.

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

   Mb. Pbesiding Justice Goodwin

delivered the opinion of the court.

2. Sales, § 356* — when evidence as to returning of car if unsatisfactory and refunding of payment is admissible. Evidence that on the delivery of a car, bought under a written contract which provided that if the car was not as represented the deposit would be returned, the agent delivering it to the purchaser said that if the car was not satisfactory it could be returned and the initial payment demanded by him thereon would be refunded is admissible, not to vary the contract but as showing that by receiving the car the purchaser did not admit that the car was satisfactory nor that the contract had been performed on the seller’s part.

3. Sales, § 356* — when evidence supports verdict. In an action to recover back the purchase price of an automobile, evidence held to support a verdict for plaintiff.


source: Caselaw Access Project

author: Mr. Presiding Justice Goodwin

license: Public Domain

text:
    George R. Carr, Appellant, v. Sanfrid Harnstrom, Appellee.
    Gen. No. 22,004.
    1. Fraud, § 14

       — necessity of showing actual damage by false representations. In an action of deceit, it is necessary to show that the plaintiff has been actually damaged as the result of false representations.
    2. Sales — what is not proof of absence of damage by false representations. In an action of deceit, evidence that the property purchased was, at the time it was bought, actually worth the price paid, while tending to negative a showing of damage by false representations, is to be considered as, evidence of absence of damage rather than proof of it.
    3. Sales, § 419* — when instruction on liability for fraud in sale of corporate stock is improper. In an action of deceit for damages alleged to have been caused by false representations of value in the sale of corporate stock, an instruction that before the jury can find for the plaintiff they must believe from all the evidence that the stock was not worth, on the date of the sale, the amount paid ■for it, is improper.

      4. Sales, § 419

       — when instruction on burden of proof is erroneous. In an action of deceit to recover damages alleged to have been caused by false representations of value in the sale of corporate stock, where there is evidence showing that plaintiff had suffered a loss by the false representations, an instruction which places upon plaintiff the burden of showing that the stock was not worth' the price paid for it on the date at which he had bought a certain part of the stock, is erroneous.
    5. Sales, § 420* — what is measure of damages for false representations' of value in sale of corporate stock. In an action of deceit to recover damages caused by false representations of value in the sale of corporate stock, the amount of the recovery is the amount actually lost by reason of the transaction, not the difference between the actual value of the stock at the time of purchase and the value which defendant represented it to have.
    6. Sales, § 419* — when instruction on nonliability for false representations as to value of corporate stock is erroneous. In an action of deceit to recover damages caused by false representations of value in the sale of corporate stock, it is error to instruct that if the jury believe from the evidence' that if at the time the plaintiff purchased the stock “there were facts and circumstances present sufficient to put the plaintiff upon his guard, or cast a' suspicion upon the correctness of the representations made by the defendant, if you believe from the evidence that any such representations were made; and if you further believe from the evidence that the .plaintiff neglected to avail himself of the warning thus given and to make proper investigation as to the correctness of such representations, then he cannot recover in this case.”
    7. Instructions, § 126* — when improper. Instructions abstract in form and which are not based upon any evidence in the case are improper.

      8. Appeal and ebbob, § 519* — when objection to admission of impeaching evidence not considered on appeal. An objection to the admission of documentary evidence on the ground that it permitted a witness to be impeached in matters not material to the issues, will not be considered on appeal where it is not pointed out wherein the evidence tended so to impeach the witness.
    9. Fraud, § 134* — when instruction on necessity of knowledge of falsity of representations is erroneous. In an action of deceit to recover damages alleged to have been caused by false representations, it is not proper to instruct that no recovery can be had unless defendant made false representations knowing them to be false.
    10. Appeal and ebbob, § 480*- — when error in giving erroneous instruction may not be complained of. On appeal, error alleged to have been committed in giving in an instruction one principle of law rather than another cannot be considered where no instruction embodying the principle claimed to he applicable was presented to the trial court, but only one embodying the same principle as that contained in the instruction complained of.
    Appeal from the Circuit Court of Cook county; the Hon. Chables H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed June 27, 1917.
    Stansbury & Charles, for appellant.
    Atwood, Pease & Loucks, for appellee.

      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. Presiding Justice Goodwin

delivered the opinion of the court.

Appellant, who was the plaintiff below, seeks to reverse a judgment of the Circuit Court in favor of the defendant. The parties will be designated as plaintiff and defendant. The former brought suit against the latter for damages alleged to have resulted from false representations in regard to the value of stock in the Alabama, Sumatra & Havana Tobacco Company, hereinafter referred to as the company. Evidence offered on behalf of the plaintiff tended to show that the defendant, the treasurer and a director of the company, induced the plaintiff to invest $15,000 in 6,000 shares of the company’s stock by means of false and fraudulent representations to the effect that it was worth $60,000. The first 2,000 shares were purchased March 17, 1911, and the remaining 4,000 shares, April 13, 1911; Evidence tending to show that no such false representations were made was introduced on behalf of the defendant. The stock turned out to be of but slight value, and many of the alleged representations upon which the plaintiff claimed to have acted were clearly false. The following instruction, among others, was given the jury:

“Before you can find for the plaintiff, you must believe from all the evidence that the assets of the Alabama, Sumatra & Havana Tobacco Company, over and above its liabilities, on March 17, 1911, were not worth $412,590, and that the stock on that date was not worth $2.50 per share.”

It is, of course, necessary in an action of deceit to show that the plaintiff has actually been damaged as the result of false representations, and, consequently, it would tend to negative the existence of such damage if it were shown that the property purchased was, at the time it was bought, actually worth the amount paid for it. We think, however, that such a fact must be considered as evidence of an absence of damage rather than proof of it, since cases readily suggest themselves where the purchaser would be out of pocket as the necessary result of his purchase, although it might at the moment be worth the exact amount paid. The instruction is, therefore, erroneous, but we think it is also bad for another reason. There was an abundance of proof from which the jury could have found that the plaintiff had actually suffered a loss as a direct result of the alleged false representations. In snch circumstances,'it was not incumbent upon him to offer evidence as to the value of the stock upon the day it was purchased. The instruction, however, clearly makes it appear that this was a distinct issue presented to the jury upon which plaintiff had the burden of proof. As plaintiff presented evidence of a total loss, and of facts from which it could be inferred that it was the direct and necessary result of the purchase, proof that the stock was actually worth the amount paid for it became a matter of defense. In addition to this, it appears that the greater part of the stock was purchased in April, and consequently, in any view of 'the case, it was improper to instruct the jury that the plaintiff could not recover unless the stock was worth less than $2.50 a share March 17th, for it might well have been worth that amount then, and nothing when the second and larger instalment was purchased. There was evidence tending to show that both purchases were made in reliance upon the alleged false representations of the defendant. On the other hand, we find no merit in plaintiff’s contention that he was entitled to recover the difference between the value of the stock at the time it was purchased and the value which defendant represented it as having. The real question in such a case is as to how much the plaintiff is actually out of pocket by reason of the transaction. (See Sigafus v. Porter, 179 U. S. 116.)

We are not unmindful of the fact that the court, over the objection of plaintiff, submitted an interrogatory to the jury as to whether the stock was worth, on March 17, 1911, the sum of $2.50 a share, and that the jury answered this question in the affirmative, but, in our opinion, as indicated above, this question was submitted to the jury under an instruction which erroneously placed the burden of proof upon the plaintiff.

The jury were also instructed as follows:

“If you believe from the evidence that at the time the plaintiff, George R Carr, purchased the stock of the Alabama, Sumatra & Havana Tobacco Company there were facts and circumstances present sufficient to put the plaintiff upon his guard, or cast a suspicion upon the correctness of the representations made by the defendant, if you believe from the evidence that any such representations were made; and if you further believe from the evidence that the plaintiff neglected to avail himself of the warning thus given and to make proper investigation as to the correctness of such representations, then he cannot recover in this case.”

We think this instruction was clearly erroneous. In Leonard v. Springer, 197 Ill. 532, our Supreme Court said:

“The rule is, that a party guilty of fraudulent conduct, whereby he induces another to act, will not be allowed to impute negligence to the latter as against his own deliberate fraud. ‘Even where parties are dealing at arm’s length, if one of them makes to the other a positive statement, upon which the other acts (with the knowledge of the party malting such statement) in confidence of its truth, and such statement is known to be false by the party making it, such conduct is fraudulent, and from it the party guilty of fraud can take no benefit.’ Linington v. Strong, 107 Ill. 295.

“Counsel says there is no allegation that the defendant ever obtained any portion of plaintiff’s money, and he assumes that defendant is not, therefore, liable in damages to plaintiff. It is not necessary, in an action of this kind, to show that the defendant had any interest in the subject-matter or that he received any benefit therefrom.”

The theory upon which the plaintiff based his case was that defendant was guilty of a deliberate fraud, and made false representations .to the plaintiff in regard to facts supposed to be within defendant’s peculiar knowledge, which induced plaintiff to make the investment in question. We think it is not enough that there might have been something to “cast a suspicion upon the correctness of the representations made by the defendant,” since there might have been, and apparently were, other facts and circumstances which would lead the plaintiff to believe that defendant was a man' of integrity and standing. The instruction -is otherwise at fault in form and substance, but it is not necessary to consider it further. The jury were also instructed as follows:

“You are instructed that where means of knowledge are at hand and equally available both to the buyer and the seller, and the matters and things about which representations are made are equally open to their inspection, if the purchaser does not avail himself of those means and opportunities, and if no concealment is made or attempted to be made by the seller, the purchaser cannot later be heard to complain that he was drawn into the transaction by the vendor’s misrepresentations.
“A purchaser is 'not justified in relying upon any representation when it is made concerning a matter equally within the means of knowledge possessed by both parties. If he has reasonable means of ascertaining the truth of the statement, he is bound to make use of his opportunities and is charged with any knowledge that he would have obtained if he made use of such means.”

These instructions are abstract in form and can hardly be supported in view of the fact that there is no evidence from which the jury could find that “means of knowledge were at hand and equally available both to the buyer and seller,” or that the matters in question “were equally within the means of knowledge possessed by both parties;”

Plaintiff also contends that the court erred in admitting in evidence thirty-three letters written by two of his witnesses. The objection is based on the ground that it was error to permit a witness to be impeached in regard to matters not material to the issues, but as counsel have failed to point out wherein the letters received in evidence tended to impeach the witness in this manner, we are unable to pass upon the point raised.

For the plaintiff it is also contended that the court erred in instructing the jury that no recovery could be had unless the defendant made false representations, knowing them to be false, for the reason that where one makes false representations recklessly and makes them as representations of matters of which he has knowledge, when, in fact, he has not, he may be held liable in the same manner as though he had known the representations to be false. We think this view of the law is sustained by the language of the opinion in the cáse of Miller v. John, 208 Ill. 173, but the question of whether or not the principle stated was applicable to the present case is not properly before us, since it was not presented to the trial court in any instruction, and plaintiff, in fact, asked the court to instruct the jury upon the same theory as that embodied in the defendant’s instructions, namely, that it was necessary for him to prove that the defendant knew that the representations were false.

For the errors already discussed, the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Aime Paul Heineck, Appellee, v. Melville G. Holding et al., Appellants.
    Gen. No. 22,021.
    1. Civil service, § 5

       — when commission may set aside examination. Under Hurd’s Rev¡ St. ch. 34, sec. 61, subdiv. 23 (J. & A. If 2815), the Cook County Civil Service Commission has power to set aside an examination which in its opinion had been irregularly, unfairly or improperly conducted.
    2. Civil service, § 5* — when fraud by commission in setting aside examination not shown. Evidence held not to support a contention that the Cook County Civil Service ■ Commission was improperly influenced or acted fraudulently or dishonestly in setting aside an examination on the ground that it had been improperly and unfairly conducted.
    Appeal from the Circuit Court of Cook county; the Hon. J. H. Fornoff, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed June 27, 1917.

      Maclay Hoyne, for appellants; Ernst Buehler, William E. Church, Robert McMurdy and Carl H. Zeiss, of counsel.
    Francis X. Busch, for appellee.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The appellants seek the reversal of a judgment entered in the Circuit Court, awarding a writ of mandamus commanding appellants, as Cook County Civil Service Commissioners, to set aside an order entered by them September 3, 1912, canceling an examination, held December 7, 1911, of applicants for registration on a list of eligibles for appointment as attending physicians at the Cook County Hospital, and directing them to certify to the president of the county board a list of names created as a result of that examination. The parties will hereafter be known as relator and respondents.

It appears that by order of the county board the medical staff of the County Hospital comprises twelve departments including sixty-seven physicians, all appointed by the president of the board for periods of six years from a list of eligibles certified to- him by the County Civil Service Commission. They are a part of the classified civil service within the meaning of the statute, and serve without compensation. The statute, in effect, provided that applicants for appointment in the classified service should be subject to examination which should be public, competitive, and free to all citizens of the United States, with specified limitations as to residence, age, health, habits, and moral character. The County Civil Service Commission was empowered to control all examinations and designate a suitable number of persons to be examiners who should conduct the examinations, and report thereof to the Commission. The Commission is required to prepare a register of the persons whose general average standing is not less than the minimum fixed by the rules of the Commission, and who are otherwise eligible, and the applicants take rank upon the register in the order of their relative excellence as determined by the examination. Subdivision 23 of- section 61 of chapter 34 (J. & A. ft 2815) provides that the Commission “shall investigate the enforcement of this act and of its rules and the action of examiners herein provided for, with power to administer oaths and secure attendance of witnesses.” An examination was held December 7, 1911, by a committee of physicians appointed by the Commission. The relator passed the examination with a marking of 75.5. For the relator it was successfully contended that upon his being notified of this fact he became entitled to have his name placed upon the list of eligibles and was entitled, in turn, to appointment by the county board. Before any register of eligibles was actually prepared or posted under its authority, numerous complaints were made by some members of the medical profession of unfairness in the methods pursued in calling and holding the examination, and in the marking of examination papers. The commissioners instituted a general investigation and appointed a committee of members of the medical profession of Cook county for the purpose, particularly of advising them in regard to the question as to the fairness and justice of the examiners ’ markings, based on experience, which, under the rules governing such examinations, carried a maximum value of .4. This committee reported that it did not think that the Civil Service Commission would be justified in accepting the original markings, and, upon receiving this report, the Commission, at a meeting held September 3, 1912, passed a motion in which it recited that it had considered the matter of accepting and posting the return of the examiners for the attending staff of Cook County Hospital, and the complaints of numerous applicants and members of the medical profession by letter and orally concerning the same, and that it found, (1) that the examination was divided in such a manner that the applicants who were entitled to take more than one of the thirteen separate tests could not do so because these tests were held simultaneously by the examiners; (2) that some of the tests were held for alleged places which do not and never did exist; and (3) that a special committee of physicians appointed by this Commission to investigate the experience markings in this examination had found after careful investigation that the standard of experience prescribed was wantonly departed from in numerous cases to the advantage of certain applicants, and that the committee had reported that they did not think the Civil Service Commission would be justified in accepting the original markings. The Commission unanimously ordered that the report of the examiners be rejected and set aside, and that new applications be received.

For the relator it is contended, among other things, that the commissioners had no power to enter this order, and that in doing so they were improperly influenced. The power of the commissioners must, of course, be determined by the terms of the statute, and we find that while commissioners are authorized to appoint examiners, the statute expressly directs that the commissioners shall control all the examinations, and later provides that they shall investigate the action of the examiners. The purpose of these provisions is clear.' The provisions of the statute were intended to create conditions under which appointment to positions in the county service should be on the basis of merit. To this end a commission is created, charged with the duty of faithfully carrying out the provisions of the statute, and in this work it is empowered to secure the assistance of examiners, but in that connection the statute makes it very plain that it shall retain the duty of controlling the examinations and investigating the action of the examiners whom they appoint. To say that it has these powers and duties and no power to set aside an- examination, which in its opinion had been irregularly or improperly conducted, would be a distinct contradiction in terms. The legislators might, it is true, provide that the action of the examiners should not be subject to control or investigation, but they have not chosen to do so. We are of the opinion that it necessarily follows that when an investigation of the action of the examiners discloses facts which, in the opinion of the commissioners, convince them that an examination has been unfairly or improperly conducted, it is not only within-their power, but it is their duty, under the statute, to set that examination aside. It may be argued that such, a power invites abuse, but to this it may be answered that the power seems clearly and unmistakably given by the statute, and, moreover, it would seem that it is impossible to create a system for the appointment of public officials and employees, whose fair operation will not depend to some extent upon the fidelity of the commissioners appointed to supervise its workings.

In the present instance it is contended that the commissioners were improperly influenced and acted fraudulently .and dishonestly. Upon the assumption that the trial court in this proceeding had power to pass upon that question, we have diligently examined the record and are of the opinion that the evidence fails to" sustain the relator’s contention. It is true that there is evidence which tends to show that the commissioners appointed an investigating committee for the purpose of getting a report "that would give them a definite reason for annulling the examination, but there is no evidence which tends in any way to show that the committee appointed to make the investigation wa's improperly selected or that it did not act honestly in the matter. The entire evidence, including that relied upon by the relator, leads to the logical conclusion that the commissioners’ own investigation had convinced them that the examination had been improperly and unfairly conducted, and that they appointed a committee of high-minded and disinterested physicians to make an independent investigation, in the confident belief that they would arrive at the same conclusion.

As we are of the opinion that it was within the power of the Commission to set aside the examination of December 7, 1911, and that as there is no evidence to sustain the contention that the Commission was improperly influenced or acted fraudulently or dishonestly, there is no ground upon which the action of the trial court in awarding a writ of mandamus can be sustained. The judgment of the Circuit Court is reversed.

Reversed.


text:
    John Krichbaum, Appellee, v. Chicago City Railway Company and Chicago Railways Company. Chicago City Railway Company, Appellant.
    Gen. No. 22,024.
    (Not to be reported in full.)
    Appeal from the Superior Court o£ Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed June 27, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Krichbaum, plaintiff, against the Chicago City Railway Company and Chicago Railways Company, defendants, to recover for personal injuries. On motion of plaintiff the action was discontinued as to the latter defendant prior to the trial. From a judgment for plaintiff for $9,750, defendant Chicago City Railway Company appeals.
    The following instruction was given at the request of plaintiff:
    “The court instructs the jury that if you find for the plaintiff you will be required to determine the amount of the plaintiff’s damages. To determine the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have the right to and they should take into consideration all the facts and circumstances touching the plaintiff’s physical injuries, if any, proximately resulting from the accident in question, so far as such injuries are proven by the evidence ; his pain and suffering and disability, if any, resulting from such injuries, and such future pain and suffering and disability, if any, as the jury may believe from the evidence he will sustain by reason of such injuries: his loss of earnings, if any, proximately resulting- from the said injuries, and such sums of money, if any, as he has necessarily expended or become liable for in and about endeavoring to be cured of said physical injuries, if any, but not more than the usual, reasonable and customary price therefor; and the jury may find a verdict in favor of the plaintiff for such sum as in the judgment of the jury under the evidence and instructions of the court in this ease will be a fair compensation for the damages the plaintiff has sustained or will sustain, if any, and the pain and suffering the plaintiff has sustained or will sustain, if any, as the direct and proximate result of the injuries, if any, the plaintiff received in the accident in question so far as such damages are claimed and proven on the trial to be the proximate result of the accident complained of; and the jury are instructed that it is not necessary for any witness to express an opinion as to the amount of such damages.”
    Abstract of the Decision.
    1. Cabriebs, § 476

       — when evidence shows negligence of carrier and lack of negligence "by passenger boarding car. In an action to recover for personal injuries received in boarding a street car, evidence held sufficient to support a finding that defendant was quietly of negligence and that plaintiff was not guilty of contributory negligence.
    2. Pleading, § 9* — when reference to “defendants” in declaration is immaterial. Where, prior to the trial of an action against two defendants, an order is entered discontinuing as to one of them, it is immaterial that the declaration contains references to the “defendants,” as such allegations necessarily refer to the remaining defendant.
    3. Pleading, § 356* — what is effect of order permitting withdrawal of special plea. The entry, on the motion of a defendant, of an order permitting it to withdraw a special plea constitutes an abandonment of the defense set up in such plea and an admission of the matter denied therein.
    Franklin B. Hussey, and Charles LeRoy Brown, for appellant; John B. Guilliams, of counsel.
    Daniel L. Madden, for appellee.

      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. Presiding Justice Goodwin

delivered the opinion of the court.

4. Pleading, § 355 — what constitutes withdrawal of plea. Where leave is asked and given to withdraw a plea, the withdrawal is thereby effected though the plea continues to be a part of the files in the cause.

5. Pleading, § 354* — when defendant estopped from relying on defense in plea assumed to he vñthdrawn. A defendant which asks and obtains leave to withdraw a special plea, and proceeds to trial on the assumption that the plea was withdrawn, is estopped from thereafter relying upon that defense.

6. Damages, § 207* — when instruction on manner of determining is not erroneous. In an action to recover for personal injuries, an instruction in the usual form as to the manner of determining the amount of plaintiff’s damages, held not open to objection.

7. Instructions, § 20* — what is proper cautionary instruction. In an action to recover for personal injuries in which numerous instructions, some complicated and involved, had been given for defendant as to the law and facts necessary to be found to entitle plaintiff to recover, it is proper for the court to point out to the jury that the court did not intend to state an opinion as to what the facts were and to remind them that they were judges of the facts.


text:
    John Hemwall Automobile Company, Defendant in Error, v. Harold J. Derby and Frank J. Derby, Plaintiffs in Error.
    Gen. No. 22,078.
    (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 March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by John Hemwall Automobile Company, a corporation, plaintiff, against Harold J. Derby and Frank J. Derby, defendants, to recover on a promissory note. To reverse a judgment for plaintiff for $277.80 entered on the verdict of a jury, plaintiffs prosecute this writ of error.
    Abstract of the Decision.
    1. Sales, § 283

       — when existence of warranty is question for jury. In an action to recover on a promissory note where one of the defenses is the breach of an alleged warranty in the sale of an automobile, the question whether such warranty was made is for the jury.
    2. Sales, § 328* — when fraud by agent of seller is question for jury. In an action to recover on a promissory note given for an automobile, where a defense set up is false and fraudulent representations by an agent of plaintiff, the questions whether such representations were made by one who was plaintiff’s agent and were acted upon by defendants to their injury are for the jury.
    3. Appeal and error, § 1410* — when verdict is not against manifest weight of evidence. In an action to recover on a promissory note given for an automobile, evidence held not to show that the verdict was contrary to the manifest weight of the evidence.
    4. Sales,. § 330* — when instructions on burden of proof not erroneous. In an action to recover on a promissory note given for an automobile, instructions on the question of the burden of proof held not erroneous.
    5. Sales, § 330*- — when 'instructions on warranties are not erroneous. In an action to recover on a promissory note in which one defense is the breach of a warranty made by one alleged to have been plaintiff’s agent, an objection that the instructions in regard to warranties referred to warranties by the plaintiff instead of warranties by the agent is not well taken where the court made it sufficiently clear that the act of an authorized agent within the scope of his authority is the act of his principal.
    Robert Branard, Jr., for plaintiffs in error.
    Wentworth, Cavender & Kaiser, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Henry J. Link, Defendant in Error, v. Harry Skeeles, trading as Skeeles Brothers, Plaintiff in Error.
    Gen. No. 22,096.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 2

       — when pedestrian has right of action against chauffeur violating ordinance. A pedestrian injured through the act of a chauffeur in passing to the left of a street car in violation of a city ordinance has a right to maintain a civil action for the injuries inflicted.
    2. Automobiles and garages, § 2* — when conduct of chauffeur need not he shown to he wanton and wilful. To recover for injuries received by the act of a chauffeur in wilfully violating an ordinance prohibiting passing on the left of a street car, it is not necessary to show that defendant’s conduct amounted to wanton and wilful misconduct.
    Error to the Municipal Court of Chicago; the. Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July 17, 1917.
    Statement of the Case.
    Action by Henry J. Link, plaintiff, against Harry Skeeles, trading as Skeeles Brothers, defendant, to'recover for personal injuries. To reverse a judgment for plaintiff for $500, defendant prosecutes this writ of error.
    Harris F. Williams, for plaintiff in error; W. Scott Hodges and George F. Ort, of counsel.
    Guerin & Barrett, for defendant in error.

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

3. Automobile and gabages, § 2 — when plaintiff not guilty of contributory negligence. In an action to recover for personal injuries to one struck by an automobile, evidence held not to show that plaintiff was guilty of contributory negligence as a matter of law.

4. Automobiles and garages, § 3* — what evidence properly excluded in action for personal injuries. In an action to recover for injuries to one struck by an automobile, it is not error to exclude evidence that the automobile was part of a funeral procession.

5. Automobiles and garages, § 2* — when existence of obstruction on right side of street car is immaterial. In an action to recover for injuries to one struck by an automobile which was passing on the left of a street car in violation of a city ordinance, it is not material, on the- question of defendant’s liability, that there was an obstruction of the street on the right side of the car at that point, where there was no evidence that the street was obstructed at other points.

6. Municipal Court of Chicago, § 28* — tohen Appellate Court may consider only objections to oral instructions made in accordance with rules of. Where, on appeal, there is certified to the Appellate Court a rule of the Municipal Court of Chicago that: “Objections to the giving or refusing of oral instructions to the jury must be specific, and must be made immediately upon the conclusion of the charge, and before the jury retire,” the only objections to oral instructions which the Appellate Court can consider are those made in conformity with that rule.

7. Automobiles and garages, § 3* — when instruction in language of ordinance prohibiting passing to left of street car is sufficient. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, an instruction properly and plainly stating the substance of the ordinance held sufficient.

8. Automobiles and garages, § 3* — when instruction on speed of car in city constituting prima facie evidence of negligence is correct. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, it is not error to instruct that the operation of a car at a speed of over ten miles an hour on public highways in closely built-up portions of a city is prima facie evidence of negligence, especially where, the court adds that the fact that the law was violated is not evidence, in itself, of negligence.

9. Appeal and error, § 1544* — when instructions on wanton and wilful misconduct not reversibly erroneous. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, • instructions as to wanton and wilful misconduct held not reversible error.


text:
    City of Chicago, Defendant in Error, v. Edward Walsh, Plaintiff in Error.
    Gen. No. 22,146.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence — what judicially noticed. The court will take judicial notice, as a fact of common knowledge, that the automatic' telephone is one conducted without the assistance of an operator, and that conversation over such a line cannot, by accident or otherwise, be heard over any other line in the system.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Ebt, Judge, presiding. Heard in the Branch Appellate Court at,
    the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July 13, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Edward Walsh, defendant, for violation of Chicago Code of 1911, sec. 982. To reverse a judgment against him for a penalty, defendant 'prosecutes this writ of error.
    Henry M. Seligman, for plaintiff in error.
    Harry B. Miller, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

2. Municipal corporations, § 864 — when evidence sufficient to sustain conviction for violation of gambling ordinance. On a prosecution for violation of the Chicago Code of 1911, sec. 982, in reference to gambling, evidence held to support a judgment against defendant.

3. Municipal Court of Chicago, § 14* — what judicially noticed by. The Municipal Court of Chicago takes judicial notice of the ordinances of the City of Chicago.

4. Municipal Court of Chicago, § 28* — when ordinance must be certified. The trial judge, in an action in the Municipal Court of Chicago, is required, upon the request of the party appealing, to certify the ordinance or ordinances material to the issues.

5. Municipal Court of Chicago, § 29* — when presumed that complaint donformed to ordinance. On an appeal by defendant from a judgment of the Municipal Court of Chicago, where the ordinance material to the issue is not certified by the trial court, every presumption that the complaint thereunder conformed to the ordinance will be indulged in favor of the judgment.


text:
    National Printing & Engraving Company (a corporation), Winterburn Print Branch, Defendant in Error, v. Samuel L. Winternitz, trading as The Waterdrome Company, Plaintiff in Error.
    Gen. No. 22,156.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by the National Printing & Engraving Company (a corporation), Winterburn Print Branch, plaintiff, against Samuel L. Winternitz, trading as The Waterdrome Company, defendant, for the purchase price of goods. To reverse a judgment for plaintiff for $217.40, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Corporations, § 516

       — when evidence shows business not incorporated. In an action to recover the purchase price of goods, evidence held to show that defendant was owner of the business by which the goods were purchased, that he was doing business under such name and that the business was not incorporated.
    2. Municipal Court op Chicago, § 30* — when granting of leave to amend statement of claim is not ground for reversal. The fact that though leave was given to amend the statement of claim in a case of the fourth class in the Municipal Court of Chicago, which named several defendants who were not served with process, no amendment was actually made, is not ground for reversal.
    3. Appeal and error, § 471* — when objection to statement elicited on cross-examination may not be raised. One who elicits a statement from a witness on cross-examination and does not object thereto cannot raise the objection on appeal.
    William Friedman, for plaintiff in error.
    P. F. Murray, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Eugenie Lambert, trading as Madame Eugenie, Defendant in Error, v. Mrs. L. M. Loomis, Plaintiff in Error.
    Gen. No. 22,168.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed June 27, 1917.

      Abstract of the Decision.
    Sales, § 329

       — when evidence insufficient to support verdict. In an action to recover for goods sold, evidence field insufficient to support a verdict for plaintiff.
    Statement of the Case.
    Action by Eugenie Lambert, trading as Madame Eugenie, plaintiff, against Mrs. L. M. Loomis, defendant, to recover for goods sold. To reverse a judgment for plaintiff for $63.50, defendant prosecutes this writ of error.
    Edmund D. Carter, for plaintiff in error.
    James W. Mraz, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Arbenz Car Company, Defendant in Error, v. Edward J. Ader, Plaintiif in Error.
    Gen. No. 22, 179.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables N. Goomsrow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by the Arbenz Car Company, a corporation, plaintiff, against Edward J. Ader, defendant, to recover on a promissory note. To reverse a judgment for plaintiff for $481.50, defendant prosecutes this writ of error.
    Abstract of the Decision.
    Principal and agent, § 103* — when evidence shows notice to third person of lack of authority of agent to make settlement. In an action to recover on a promissory note, as a defense to which was set up a settlement with plaintiff’s agent, evidence held sufficient to show that defendant had notice that the agent had no authority to make the settlement.
    William Friedman, for plaintiff in error.
    Franklin N. Wood, for defendant in error.
   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Rudolph Reuter, Plaintiff in Error, v. Fred A. Dolph et al. Fred A. Dolph, Defendant in Error.
    Gen. No. 22,187.
    Alteration of instruments, § 16

       — what constitutes material alteration of note releasing guarantor. The addition to a note, originally payable in ninety days, of a power of attorney permitting a judgment to be confessed on the note at any time, before or after maturity, is a material alteration which releases one who, before the addition of the power, had indorsed upon the note a guarantee of its payment.
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court • at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Worth Allen, for plaintiff in error.

      Dolph, Gallagher & O’Connor, for defendant in error; F. L. Salisbury, of counsel.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Plaintiff in error, who was the plaintiff below, seeks to reverse a judgment in favor of the defendant in error, who was one of the defendants. The parties will hereafter be referred to as plaintiff and defendant. The record discloses that one Bussell made a promissory note, payable to himself, for $500, which he indorsed in blank, and upon the back of which defendant placed the following guaranty: “For value I guarantee the within note. Fred A. Dolph. ” After the delivery of this note to the plaintiff, there was attached to it a power of attorney executed by the maker giving authority to confess judgment at any time in favor of the holder of the note for the amount due, together with $20 attorney’s fees. Upon this statement of facts the court entered judgment in favor of the defendant guarantor.

For the plaintiff in error it is contended that the power of attorney was not strictly a part of the note, and did not purport to be a part of it; that it merely gave the owner added security, and did not in any way affect the guarantor. A material alteration in a note discharges a guarantor, and section 124 of our Negotiable Instruments Act (J. & A. ft 7764) declares that any alteration which changes the date, the sum payable, or the time or place- of payment, or which alters the effect of the instrument in any respect, is a material alteration. Upon a careful consideration of the question presented, we are constrained to hold that the addition of the power of attorney did materially alter the effect of the instrument, which by its terms was originally payable in ninety days, and upon which no action could be brought by the holder until the expiration of that time. The power of attorney permitted a judgment to be confessed upon the note at any time, before or after maturity. In addition to this, the definite date of payment in an ordinary note gives the maker, for the time being, security from any demand by the holder, and allows him time within which to arrange his affairs in such a way as to meet the note when due. The maker of a judgment note obviously enjoys no such security. It might very well be that one would be willing to guarantee the payment of a demand due at a definite time in the future, where the maker was secured from any harassment in the meantime, but would be very reluctant to guarantee an obligation which empowered the holder to embarass the maker with threats of judgment prior to the maturity of the obligation. It is for the guarantor and not for the courts to say what sort of an obligation he is willing to guarantee, and it is idle for them to speculate upon the question as to which sort of an obligation would subject him to the greater risk. If an obligation is materially altered, it is a perfect defense, since it is no longer the obligation which he guaranteed. The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice O’Connor

text:
    Etta D. Van Vlissingen, Appellee, v. Charles L. Rigby et al., Appellants.
    Gen. No. 21,958.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1414

       — when findings "based on conflicting evidence not disturbed. On a bill for an accounting, where the evidence of the only two witnesses testifying is in direct conflict on the material points in controversy and it cannot be said that the findings are against the manifest weight of the evidence, the decree will not be disturbed on appeal. ^
    2. Appeal and error, § 1488* — when error in admission of evidence is harmless. Error in admitting evidence is harmless where there is sufficient competent evidence in the record.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Bill for an accounting by Etta D. Van Vlissingen, complainant, against Charles L. Rigby, William C. Rigby, F. H. G-ansbergen and James H. Van Vlissingen, defendants. From a decree entered after an account stated on a basis of accounting fixed by a decree approving the report of a master, defendants, except defendant Van Vlissingen, appeal.
    Miller, Gorham & Wales, for appellants.
    Bentley, Burling & Swan, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Chicago, Indiana & Southern Railroad Company, Defendant in Error, v. D. E. McMillan & Brother Coal Company, Plaintiff in Error.
    Gen. No. 22,085.
    1. Cabriebs — when consignee liable for freight charges. The consignee’s liability to pay freight arises, in the absence of express agreement, where he has accepted the goods knowing that the charges are unpaid and that the carrier looks to him.
    2. Carriers — when consignee not liable for freight charges. Where a consignee of goods transported by a common carrier reconsigns the shipment and notifies the carrier to deliver the goods and collect freight charges from the one to whom the goods are delivered, the carrier so delivering the goods and failing to collect the freight charges cannot recover them from such consignee.
    3. Carriers — when original reconsignee is not liable for freight« charges. The original reconsignee of freight issued an order to the carrier requesting it to consign them to a third person, such order stating: “your charges follow * * *. Please show us as consignors,” and attached thereto was the original order of re-consignment in which it was said: “Charges follow, guaranteed.” The carrier failed to collect the charges from the third person. Held that the original reconsignee did not, by reconsigning the shipment, become liable for the charges.'
    Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed June 27, 1917.
    M. F. Gallagher and E. B. Wilkinson, for plaintiff in error.
    E. T. Glennon, R. J. Cary and Bertrand Walker, for defendant in error.
   Mr. Justice O’Connor

delivered the Opinion of the court.

The Chicago, Indiana & Southern Railroad Company brought suit in the Municipal Court of Chicago against D. E. McMillan & Brother Coal Company to recover freight charges amounting to $42.49. The case was submitted to the court on a stipulation of facts. The court found the issues for the plaintiff and entered judgment for the amount of the claim, to reverse which this writ of error is prosecuted.

The stipulation discloses that a carload of coal was shipped over plaintiff’s road from Eldorado, Illinois, consigned to the Lincoln-Springfield Coal Company at Chicago. The car was transported to Gibson City, Indiana, the holding yard of the plaintiff, and upon its arrival, March 29, 1909, the Lincoln-Springfield Coal Company, consignee, sold and reconsigned the car to the defendant. On the same date, the defendant sold and reconsigned the coal to the • Monarch Rubber Works. The sale of the coal to the defendant, and also to the Monarch Rubber Works, was at a price f. o. b. the mines. The reconsignment order delivered by the defendant to the plaintiff, showing the sale to the Monarch Rubber Works, requested plaintiff to reconsign the car, “your charges follow * * *. Please show us as consignors of this shipment.” To this order was attached the reconsignment order of the Lincoln-Springfield Coal Company, which contained the following: “Charges follow, guaranteed.” Plaintiff accepted these reconsignment orders and delivered the car of coal to the Monarch Rubber Works at Chicago, but did not collect the freight charges from it. Six months after-wards, the Monarch Rubber Works became insolvent and went out of business. It did not pay the freight charges and, about nine months after the delivery of the coal to it, plaintiff demanded payment of the freight charges from the defendant. The car contained 42.1 tons of coal screenings, “the mine price of which was ninety-five cents a ton.” The freight charges sought to be collected, amounting to $42.49, were the charges provided in the tariffs filed by plaintiff with the Interstate Commerce Commission.

Plaintiff contends that “a consignee who accepts a shipment with notice that the carrier looks to him for payment of the freight charges becomes liable therefor on an implied promise to pay,” and that “a consignee who has reconsigned a car occupies and stands in the relation of a consignor of the shipment, in so far as the carriage of it subsequent to the reconsignment is concerned. It is at his request and direction that the shipment is carried further. The consignee who reconsigns the car is liable for the charges that have accrued up to the time of reconsignment as consignee, under the same conditions as any other consignee is, and for the charges beyond, as consignor.”

No authority has been cited to sustain the proposition that a consignee by merely reconsigning the car becomes liable for the freight charges that have accrued up to that time. The liability of the consignee to pay the freight charges in the absence of an express agreement arises where the goods have been accepted by him knowing that the freight charges are unpaid and that the carrier looks to him for payment. Union Pac. R. Co. v. American Smelting & Refining Co. [121 C. C. A. 182], 202 Fed. 720; Central R. Co. of New Jersey v. MacCartney, 68 N. J. L. 165; Central of Georgia Ry. Co. v. Southern Ferro Concrete Co., 193 Ala. 108.

In the Union Pacific case, supra, the court said, p. 723: “The reason for this rule is that the consignee accepts the goods with knowledge that the carrier looks to him for payment of the transportation charges. and waives his lien for them by delivery in reliance upon the' consignee’s implied promise, evidenced by his acceptance of the goods, that he will pay the charges.”

In the MacCartney case, supra, it was held that the liability of a consignee to pay the carrier the freight upon goods transported does not depend upon any general legal duty, but upon some agreement or undertaking made by him. Mr. Justice Pitney, in delivering the opinion of the court, said (p. 173): “Where one accepts delivery of goods from a common carrier, receiving at the same time a statement plainly setting forth the amount of the freight charges thereon, with knowledge that the carrier is giving up for the benefit of the consignee a lien upon the goods for the amount so stated, such conduct by the consignee is, of course, cogent evidence, and, standing unexplained and uncontradicted, is sufficient evidence of an implied promise to pay the amount of the stated charges.”

Where a consignee of goods transported by a common carrier réconsigns the shipment and notifies the carrier to make delivery and collect freight from the person to whom the goods are delivered, the carrier, so delivering the goods and failing to collect the freight charges, cannot recover them from such consignee. 2 Hutchinson on Carriers (3rd Ed.), sec. 808; 4 Elliott on Eailroads, sec. 1559; St. Louis Soutlnvestern Ry. Co. v. Browne Grain Co. (Tex. Civ. App.), 166 S. W. 40; Tobin v. Crawford, 5 M. & W. 235, affirmed 9 M. & W. 716; Merian v. Funck, 4 Denio (N. Y.) 110.

In Hutchinson on Carriers, supra, it is said: “If the consignée assigns the bill of lading before the goods are delivered to him, and thus enables his indorsee to receive them, he does not become liable for the freight, unless his indorsee received them as his agent. The ordinary contract of the carrier is to deliver the goods to the consignee or his assigns, ‘he or they paying the freight, ’ and whoever accepts them under such a contract becomes liable for the freight; and if the carrier delivers them to an assignee of the contract, without relying upon his lien to secure its payment, he must be understood as relying upon the personal liability of the assignee alone, if the assignee does not act as the agent of the assignor. A new contract arises, under such circumstance, between the assignee and the carrier.”

To the same effect is Elliott on Eailroads, where it is said: “If the consignee assigns the bill of lading before the goods are delivered to him, his indorsee, by accepting them, usually becomes liable, and the carrier, by delivering them to the latter, releases the consignee, unless the indorsee received them as the consignee’s agent.”

From the foregoing authorities, we are clearly of the opinion that the defendant was not liable for the freight charges sought to be collected in this suit. The judgment of the Municipal Court is therefore reversed.

Judgment reversed.


text:
    American Lumber Company, Defendant in Error, v. W. A. Leach, trading as Leach Lumber & Tie Company, Plaintiff in Error.
    Gen. No. 22,152.
    1. Appeal and error,, § 800

       — what must he part of HU of exceptions. Motions and orders striking pleas from the files and exceptions thereto cannot be made a part of the record and reviewed unless preserved by a bill of exceptions.
    2. Attachment, § 196* — when question whether court erred in refusing to grant motion to dissolve attachment not considered. On review, the question as to whether or not the court erred in refusing to grant a motion made at the close of plaintiff’s case to dissolve the attachment and dismiss the suit on the ground that the damages were unliquidated will not be considered where this V ground was not one of the specific reasons assigned in the motion and the motion was not renewed at the close of the case.
    3. Appearance, § 12* — what is effect of. Where defendant in attachment enters his appearance, files an affidavit of merits and contests the claim, the court is not authorized to dismiss the suit on his motion, but should proceed to final judgment as though summons were issued.
    4. Attachment, § 80* — when affidavit is sufficient to give court jurisdiction. That the affidavit for an original attachment shows that the amount sued for is unliquidated does not deprive the court of jurisdiction.
    5. Attachment, § 247

       — when evidence sufficient to support judgment for plaintiff. On a suit in attachment, evidence held sufficient to support a judgment and finding for plaintiff.
    6. Evidence, § 221* — when inadmissible as hearsay. On a suit in attachment, evidence held inadmissible as hearsay.
    Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Downer McCord, for plaintiff in error.
    Herbert A. Schryver, for defendant in error.

      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 O’Connor

delivered the opinion of the court.

The American Lumber Company brought suit in attachment against W.. A. Leach, doing business as Leach Lumber & Tie Company, to recover $944.91. Certain parties were served as garnishees who answered admitting that they were indebted to the defendant in amounts aggregating more than the amount of plaintiff’s claim against the defendant. The case was tried before the court without a jury, and a judgment entered against the defendant for $721.97. Judgments were also entered against the garnishees on their answers.

It appears from the record that the defendant was located in Missouri and sold railroad ties to the plaintiff, located in Chicago, during the years 1911,1912 and 1913: Plaintiff in its affidavit for attachment stated that the defendant was indebted to it, “after allowing all just credits and set-offs in the sum of nine hundred forty-four and 91/100 dollars ($944.91) upon an open account for lumber sold and delivered to said Leach Lumber & Tie Company at their special instance and request during the years 1911, 1912 and 1913, and for cash paid out by plaintiff to the defendant for two cars of lumber purchased by the plaintiff from the defendant but never delivered”; and that the defendant was a resident of Missouri. Plaintiff in its amended statement of claim alleged that there was a balance due it from defendant “upon the mutual accounts existing by and between the parties hereto and upon an account stated.” A copy of such mutual accounts was attached to and made a part of the statement of claim. One of the items, amounting to $268.68, it was stated was for cash paid by plaintiff for damages sustained by it because of the failure of the defendant to furnish two certain cars of lumber. The defendant was served by publication, but entered his appearance, and filed an affidavit of merits denying any indebtedness, and claimed that the plaintiff was indebted to the defendant and filed a claim of set-off for $736.08, being as stated a balance on an open account for lumber sold and delivered by the defendant to the plaintiff during the years of 1911, 1912 and 1913. To this set-off an affidavit of merits was filed denying any indebtedness.

The defendant contends that an original attachment will not lie to recover unliquidated damages; that the damages in the instant case are unliquidated, and therefore the court erred in overruling his motion to strike from the files plaintiff’s amended statement of claim and dissolve the attachment, and further erred in overruling defendant’s motion to dissolve the attachment and dismiss the suit, made at the close of plaintiff’s case.

The motion to strike plaintiff’s amended statement of claim from the files and dissolve the attachment is not preserved by a bill of exceptions. In the record written up by the clerk of the Municipal Court it is recited that the motion of the defendant to strike the amended statement of claim from the files was overruled and leave given, to file an affidavit of merits, which affidavit of merits was filed. Motions and orders striking pleas from the files and exceptions thereto should be preserved by a bill of exceptions and cannot be made a part of the record otherwise. Mann v. Brown, 263 Ill. 394. This question, therefore, is not before us for review.

In the motion made at the close of plaintiff’s case it was in no way pointed out that the attachment should be dissolved and the suit dismissed on the ground that the damages were unliquidated, but other specific reasons were assigned, and the motion was not renewed at the close of the case. Furthermore, the defendant having entered his appearance, filed an affidavit of merits and contested the claim, the court would not be authorized in dismissing the suit, but should proceed to final judgment as though summons were issued. Kotite v. Gazelle, 185 Ill. App. 116; chapter 11, sec. 27, Rev. St. (J. & A. ¶ 518). Section 27 provides: “but if found for the defendant, the attachment shall be quashed, and the costs of attachment shall be adjudged against the plaintiff, but the suit shall proceed to final judgment as though commenced by summons.”

As we understand counsel’s position, however, it is that the court was without jurisdiction of the subject-matter for the reason that an original attachment will not lie ■ where the amount sued to be recovered is unliquidated. In support of this contention the cases of Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576; Capes v. Burgess, 135 Ill. 61; Firebaugli v. Hall, 63 Ill. 81, are cited.

In the Steele-Wedeles case, supra, a writ of attachment issued against the defendant, and was served on the packing company as garnishee. Plaintiff there filed a declaration in assumpsit and the garnishee appeared specially and moved to quash the writ, specifying in writing the grounds upon which the motion was based. The motion was granted, the writ quashed and judgment entered in favor of the garnishee for costs. After considering the contract entered into between the plaintiff and defendant to determine whether the damages were liquidated or unliquidated, the court said, p. 578: “The first section of the Attachment Act uses the terms ‘creditor,’ ‘debtor’ and ‘indebtedness’ and only allows an attachment for an indebtedness. The second section requires the attaching creditor to file an affidavit setting forth the nature and amount of the indebtedness. While the facts in Gapes v. Burgess, 135 Ill. 61, were somewhat different from those in the case before us, yet the reasoning there employed is applicable. We are of the opinion that it must be regarded as settled that in this State an original attachment will not lie to recover unliquidated damages, even though an action of assumpsit is brought and may be maintained therefor.”

The question decided by the Supreme Court in the Gapes case, supra, was whether a claim for unliquidated damages due from the defendant to the garnishee could be reached by garnishment, and it was held that such a claim could not be so reached.

In Firebaugh v. Hall, supra, the question we are now considering was in no way involved or referred to by the court.

In a recent decision rendered by another division of this court, Lepman & Heggie v. Interstate Produce Co., 205 Ill. App. 270, it is said: “It is the settled law of this State that an original attachment will not lie to recover unliquidated damages. Capes v. Burgess, 135 Ill. 61; Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576.” That was a suit in attachment to recover the difference between the contract price and market price of two cars of turkeys. The defendant entered a special appearance and moved to quash the writ on the ground that it appeared in the affidavit for attachment that the claim was for unliquidated damages. The motion was sustained, and it was ordered that the defendant go hence without day. An examination of the record, abstract and briefs in that case discloses that the question whether an original attachment would lie to recover unliquidated damages was in no way discussed, but it was assumed that such was the law, and the statement above quoted was made under these circumstances preliminary to a disposition of the point in controversy; the only question in the case was whether the damages claimed were liquidated or unliquidated.

From an examination of the cases cited and an independent examination of the authorities, we have been unable to find that the question under consideration has ever been decided by the Supreme Court of this State, and it was not involved in any of the cases cited, except the Steele-Wedeles case, supra.

The case of May v. Disconto Gesellschaft, 211 Ill. 310, was an original attachment proceeding. The affidavit for attachment stated that the defendant was indebted to the plaintiff, “after allowing all just credits and set-offs, the sum of $5,000 upon certain drafts and acceptances,” obtained by the defendant “by means of gross forgeries and various other criminal and fraudulent devices.” Certain garnishees were served and plaintiff filed a declaration in trespass on the case by which it sought to recover the indebtedness mentioned in the affidavit. The garnishees answered admitting an indebtedness. Afterwards May (appellant) interpleaded and set up an assignment to him of the money in the hands of the garnishees. Afterwards by leave of court plaintiff filed an amended declaration in assumpsit. May moved the court to dismiss the suit for want of jurisdiction, to quash the writ and discharge the garnishees because interrogatories were not filed in due time and because the cause of action had been changed by filing the amended declaration. The court, speaking by Mr. Justice Scott, there said (p. 315): .

“The parties to this appeal unite in assuming that an action ex delicto cannot be the basis of an original attachment suit, and it is urged by appellant that as the cause stated in the original declaration was one clearly in tort, it must be held to have been an action in tort and that as a consequence thereof the attachment writ and all proceedings thereunder were void and appellant’s assignment of $3,000 of the fund was therefore effective.
“An inspection of the language above quoted from the affidavit for attachment shows that the action is brought to recover money which the defendant obtained by fraud and misrepresentation, and while an action ex delicto may be brought, it is also true that the plaintiff may waive the tort and sue in assumpsit for money had and received. * * *
“It follows, therefore, that as the affidavit set forth the nature and amount of an indebtedness for which a suit in assumpsit could be brought, it was sufficient to give the court jurisdiction. ’ ’'

In Haywood v. McCrory, 33 Ill 459, the court in discussing the sufficiency of an affidavit for attachment said, p. 463: ‘ The statute does not require the nature of the indebtedness to be described with any degree. of particularity. The affidavit states the nature and amount of the indebtedness; and that is all that the law requires to be stated in regard to it.”

We think, under the foregoing authorities, the affidavit in the case at bar was sufficient to give the court jurisdiction, and if the defendant desired to preserve for review the question whether an original attachment would lie to recover unliquidated damages, he should have stood on his special appearance.

The defendant further contends that the finding and judgment are against the manifest weight of the evidence. It would serve no useful purpose to discuss the-evidence in detail. We have carefully considered the record in this regard, and we are of the opinion that the contention is untenable.

Complaint is also made that the court erred in refusing to admit certain letters received by the defendant from the railroad company in regard to the cross-ties. This evidence ■ was clearly hearsay and inadmissible. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. James R. Ledwell, Plaintiff in Error.
    Gen. No. 22,167.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal cobpobations, § 864

       — what must he proved in prosecution for violation of ordinance. In a prosecution for the violation of a municipal ordinance which involves a penalty, the description of the place in which the violation is alleged to have occurred is material and necessary to be proved.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against James R. Ledwell, defendant, for violation of Chicago Code of 1911, sec. 982. To reverse a judgment imposing a penalty of $25, defendant prosecutes this writ of error.
    Edward H. Morris, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Elias Markens, Defendant in Error, v. The Baldwin Company, Plaintiff in Error.
    Gen. No. 22,182.
    (Not to be reported in full.)
    Abstract of the Decision.
    Judgment, § 515

       — when in action by seller of chattel is conclusive on rights of parties. Where it appears that in an action by the vendor of a chattel which the vendee had refused to retain after its delivery, to recover the balance due on the purchase price thereof, the judgment rendered was for less than the balance due under the contract of sale, the vendee is not entitled, after paying the judgment, to recover from the vendor the contract price of the chattel upon the latter’s refusal to redeliver it.
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed June 27, 1917.
    Rehearing denied July 13, 1917.
    Statement of the Case.
    Action by Elias Markens, plaintiff, against The Baldwin' Company, a corporation, defendant, to recover the value of goods sold, but not delivered. To reverse a judgment for plaintiff for $500, defendant prosecutes this writ of error.
    Joseph E. Winterbotham, for plaintiff in error.
    Bernard J. Brown, for defendant in error.

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

   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    Model Packing Company, Defendant in Error, v. Felix Hanzl and John Hanzl, trading as Hanzl Brothers Company, Plaintiffs in Error.
    Gen. No. 22,214.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 341

       — when evidence supports verdict in action for breach of contract. In an action by the seller to recover damages for a breach of contract of sale, evidence held to support a verdict for plaintiff.
    2. Sales, § 341* — what is sufficient proof of readiness of seller to deliver goods. In an action by the vendor of goods to recover damages for breach of contract, the readiness, ability and willingness of the vendor to deliver the goods is sufficiently shown where plaintiff avers in his statement of claim that he was compelled to sell it at the best market price obtainable by reason of defendant's’ breach of contract and defendants admit in their affidavit of merits that the goods were sold as alleged in the plaintiff’s statement.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by the Model Packing Company, a corporation, plaintiff, against Felix Hanzl and John Hanzl, trading as Hanzl Brothers Company, defendants, to recover damages for a breach of contract. To reverse a judgment for plaintiff for $300, defendants prosecute this writ of error.
    Joseph Z. Klenha and Joseph J. Kroupa, for plaintiffs in error.
    Charles Daniels and Sumner C. Palmer, for defendant in error.

      See Illinois Notes Digest, Yds. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nathan Weiss, Defendant in Error, v. Fred Bender Store Fixture Company, Plaintiff in Error.
    Gen. No. 22,251.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 440

       — when corporation has power to guarantee rent. Where a corporation guarantees the payment of rent and as a direct result thereof the business for which it was formed will be enhanced, the guaranty is within its implied powers and enforceable against it.
    2. Corporations, § 439* — when evidence sufficient to show execution of guaranty hy corporation. In an action to recover on a-guarantee of rent by a corporation, evidence held sufficient to warrant a finding that it was executed by the corporation.
    8. Corporations, § 440* — when evidence sufficient to show that corporation, was hound hy guaranty. In an action to recover on a guaranty of rent by a corporation dealing in store fixtures, evi-. dence held sufficient to show that as a result of the guaranty the corporation sold certain fixtures owned by it and was bound by the guaranty.

      Error to the Municipal Court of Chicago; the Hon. J. J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by Nathan Weiss, plaintiff, against Fred Bender Store Fixture Company, a corporation, defendant, to recover on a guaranty. To reverse a judgment for $70 for plaintiff, defendant prosecutes this writ of error.
    Victor B. Scott, for plaintiff in error.
    George H. Fenn, for defendant in error.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Corporations, § 439 — when evidence sufficient to show authority of officer to execute guaranty. Where it appears that a guaranty by a corporation which was intra vires was executed by its secretary and treasurer who owned forty-eight per cent, of the capital stock and was also manager of the company, and there was other evidence showing that the execution was authorized, a finding that he had authority to execute the guaranty is warranted.

5. Corporations, § 442* — when corporation estopped to deny authority of officers to execute guaranty. A corporation which has received the benefits of a guaranty executed by one of its officers' on its behalf, and which was within its corporate powers, will not be heard to deny the officer’s authority to execute the guaranty.


text:
    R. U. Le Cato, Plaintiff in Error, v. James Gianakopolus and Panus Gianakopolus, trading as Gianakopolus & Company, Defendants in Error.
    Gen. No. 22,298.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed June 27, 1917,
    Statement of the Case.
    Action by R. U. Le Cato, plaintiff, against James Gianakopolus and Panus Gianakopolus, trading as Gianakopolus & Company, defendants, to recover damages for a breach of contract. To reverse a judgment for defendants, plaintiff prosecutes this writ of error.
    Stewart Reed Brown, for plaintiff in error.
    Rose & Symmes, for defendants in error.

      Abstract of the Decision.
    1. Evidence, § 304

       — when exclusion of letter is error. Where a defendant partner, called and examined by the plaintiff under Municipal Court Act, sec. 33 (J. & A. If 3345), identifies a letter signed by the firm and written by their bookkeeper and testifies that he told the bookkeeper to write the letter, it is error to exclude the letter on the ground that the bookkeeper’s authority to sign it was not shown.
    2. Appeal and erbob, § 1772* — when admission of evidence in trial by court is ground for reversal. Even though a cause is tried by the court without a jury, and it will be presumed that the court did not consider incompetent evidence which it allowed to be in troduced, the admission of such evidence when accompanied by a restriction upon the introduction of competent evidence by the other party may be a ground for reversal.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    Sturges & Burn Manufacturing Company, Appellant, v. Unit Construction Company, Appellee.
    Gen. No. 21,966.
    1. Arbitration and award — what is character of notice of final judgment. The “notice” of final judgment on an award of arbitrators provided for by Hurd’s Rev. St. ch. 10, sec. 7 (J. & A. If 462) is. not to be construed as synonymous with “process” but as equivalent to knowledge or information.
    2. Arbitration and award — when court has jurisdiction upon filing of award. Persons who agree to arbitrate their differences in the method provided by Hurd’s Rev. St. ch. 10, sec. 16 (J. & A. If 471) and in their agreement provide that the award made pursuant thereto “may be filed in the Circuit Court of Cook county, and judgment entered thereon,” by such agreement definitely subject themselves to the jurisdiction of that court.

      3. Arbitration and award — what is effect of service of notice in another State on jurisdiction of court. Under an agreement entered into to arbitrate differences in the manner provided by Hurd’s Rev. St. ch. 10, sec. 16 (J. & A. If 471), which agreement provides that any award thereunder may be filed in the Circuit Court of Cook county and judgment entered thereon, after an award has been made and the notice provided by section 7 (J. & A. If 462) of the statute has been given and the award has been filed in the Circuit Court, that court obtains jurisdiction, even though the notice was served in another State.
    4. Arbitration and award — when party may not claim that notice is not due process of law. One who signs an arbitration agreement under which he voluntarily and with knowledge waives everything beyond mere notice or information cannot claim that notice thereunder served outside of the State is not due process of law.
    5. Corporations, § 709

       — when foreign corporation is doing business within State. Even though a foreign corporation has filed a renunciation of its license to do business in the State and has revoked its statutory license, it cannot be held entirely to have ceased doing “business” where there remains pending a proceeding to enforce an award against it rendered under a voluntary arbitration agreement entered into by it in the State while it still retained its license to do business, and service of notice provided for the agreement and the statute under which it was entered into may be made upon its statutory agent.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoortt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed June 27, 1917.
    Rehearing denied July 13, 1917.
    Bulkley, More & Tallmadge, for appellant.
    Bentley, Burling & Swan, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the conrt. .

In order to settle a controversy which had arisen between appellant and appellee, in regard to certain obligations arising by reason of a building contract, appellant and appellee on March 6, 1913, entered into a written agreement for an arbitration of their differences, which agreement provided, inter alia, for a board of arbitration, “under section 16, chapter 10, Bevised Statutes of Illinois.” (J. & A. 471.) It was provided, also, in the arbitration agreement that the parties thereto “may be represented before the board of arbitration by counsel” and that the award, “when made, may be filed in the Circuit Court of Cook county, State of Illinois, and judgment entered theréon, pursuant to the statute in such case made and provided, and that such award may not .be questioned or set aside on the ground that the arbitrators, in making the award, have erred in either matters of law or fact.”

On November 5, 1914, the arbitrators, three in number, determined that appellant was entitled to damages in the sum of $17,150, less $10,922.82, which should be deducted as unpaid balance of purchase price- and extras.

On December 17, 1914, appellant filed in the office of the clerk of the Circuit Court of Cook county, the arbitration agreement, the award of the arbitrators and a written motion for a judgment for $6,227.18 based on the award.

On December 23rd, appellant filed a written notice and proof of service made on December 17, 1914, entitled “To Unit Construction Company and Bentley, Burling & Swan, its attorneys,” announcing that on December 23, 1914, it would appear before the Honorable "John P. McGloorty, one of the judges of said Circuit Court of Cook county, and call up for hearing and determination the motion, and ask the court to enter judgment on the award against appellee. •

Also, on December 23,1914, the attorneys for appellant filed a notice and proof of service, entitled “To Unit Construction Company and Bentley, Burling & Swan, its attorneys,” which recited that on December 23,1914, they would call up for hearing and determination a motion to enter judgment on said award. It is recited in that notice that it was served on December 18, 1914, by delivering a copy to “W. W. Boyd, Jr., the vice president of said Unit Construction Company, at the office of said Unit Construction Company, 801 Liggett building, in the City of St. Louis, State of Missouri,” on December 18, 1914.

The same day, December 23, 1914, the appellee, by “Bentley, Burling & Swan, its attorneys,” entered a special appearance, in said cause, in the Circuit Court, objecting to the jurisdiction of the court (1) that appellee is a Delaware corporation; (2) that no process of the Circuit Court had been served on appellee in the State of Illinois-; (3) that the notice served upon appellee in St. Louis, Missouri, was ineffectual, and that therefore the Circuit Court is without jurisdiction.

On January 4, 1915, there was filed in the Circuit Court another notice (and proof of service) stating that appellant would ask for judgment on January 11, 1915. That notice was addressed “To Unit Construction Company and Bentley, Burling & Swan, its attorneys,” and the affidavit of service states that it was served “upon the said Unit Construction Company, by delivering to Nathaniel F. Sawyer, the authorized agent of said Unit Construction Company, in the State of Illinois, a true copy thereof, on the 4th day of January, A. D. 1915,” and thereafter on January 29,1915, appellee, by Bentley, Burling & Swan, its attorneys, entered another special appearance, claiming that the notice served on appellee, through Sawyer as agent, did not give the Circuit Court jurisdiction.

The trial judge on April 8, 1915, denied appellant’s motion for judgment, and entered judgment for appellee for costs of suit.

The evidence offered by the appellee, in support of its objections, shows that an affidavit of withdrawal of appellee, and revocation of the authority of its Illinois representative for service of process, was filed on December 18, 1914 with the Secretary of State. That affidavit of withdrawal states, among other things, that appellee discontinued business in Illinois on October 1, 1914. The appellee offered in evidence also two affidavits, the first by Sawyer, to the effect that he was not employed by appellee since October, 1913, and that he was not on January 4, 1915, the agent or representative of appellee; the second, by W. W. Boyd, Jr., to the effect that appellee had not solicited work in Illinois since May 21, 1914, and that the agency of Sawyer was terminated on or about September 30, 1913.

The sole question involved in this appeal is whether the notice given by appellant was a compliance with the requirements of section 7 of the Act (J. & A. 462). Section 7 provides that “the party filing such award may, at the next term after such filing, by giving four days’ notice of his intention to the opposite party, and if no legal exceptions are taken to such award or other proceeding, have final judgment thereon, as on the verdict of a jury, for the sum specified in said award to be due, together with the costs of arbitration and of the court; and execution may issue therefor ■ as in other eases.”

Three different notices were given in an endeavor to comply with the statute. The first was a notice addressed “To Unit Construction Company and Bentley, Burling & Swan, its attorneys,” and was served by delivering a copy to Thomas W. Swan, on December 17, 1914. It ■ is claimed by Bentley, Burling & Swan that although they did represent appellee in the course of part of the arbitration proceedings, they were not on December 17, 1914, attorneys for appellee, and that they are now appearing only specially to contest notice and judgment.

The second notice was served upon W. W. Boyd, Jr., the vice president of appellee, at the office of the company, in St. Louis, Missouri, on December 18,1914. It is claimed by the appellee that that notice, being served outside the State of Illinois, was insufficient.

The third notice was served upon Sawyer, “the authorized agent” of the appellee, and served within the State of Illinois, on January 4, 1915. It is claimed by appellee that Sawyer had not been in the employ of appellee since September 30, 1913; that the agency of Sawyer was revoked on December 18, 1914, the day after notice was served upon Bentley, Burling & Swan; that the revocation at that significant time was not a ruse or subterfuge, but merely making the records of the Secretary of State accord with the facts.

As to the notice served on the vice president of appellee, on December 18, 19Í4, at St. Louis, Missouri:

It is necessary, of course, at the outset, to determine just what is meant in the statute by the word “notice.” Does it mean knowledge or information created by the voluntary act of the appellant, whether by a technical legal court process, or by mere acts in pais. If it means the former, then “notice” is synonymous with “process,” if the latter, it is not. There does not seem to be anything affirmative in the arbitration statute that suggests the issuance of a court process; and taking the word in its context, in a statute that.came into being, we may assume, to avoid some of the vices of a conventional lawsuit, it does not appear reasonable to interpret the word “notice,” which to the lay mind means knowledge however obtained, to mean something else, something known only to the legal profession, and called by them, in the nomenclature of the law, a process.

If then “notice,” as the word is used in the statute in question, means information and not a court process, was the notice served in St. Louis, Missouri, sufficient? It is claimed by appellee that a judgment rendered upon such notice served in Missouri would be void. There are two ways by which a court may obtain jurisdiction of the party: First, by service of process within the jurisdiction; and second, by the act of the party in voluntarily submitting himself to the jurisdiction of the court. A typical case, included within the last method, is where a party causes his appearance to be entered, or authorizes it to be done, as in the case of a confession on a promissory note. In the present case the defendant, by signing the agreement that the award should be filed in the Circuit Court and judgment entered thereupon, definitely subjected itself to the jurisdiction of the Circuit Court and has authorized judgment to be entered against it, as certainly as if it had signed a power of attorney authorizing a confession of judgment. Indeed the ease is exactly similar in its essence to one where such a power of attorney is given. That principle was recognized by this Court in the case of Seaton v. Kendall, 61 Ill. App. 291, in which Mr. Justice Waterman, speaking for the court, said in passing upon an agreement not entirely dissimilar to the one here: “The agreement is really analogous to a power of attorney authorizing a confession of judgment.” We are therefore of the opinion that the notice served upon appellee in St. Louis, Missouri, in accordance with the written contract of the parties and the arbitration statute, was sufficient, and that upon the filing of the award the court obtained jurisdiction.

As to the claim that notice served outside of the State is not due process of law, we do not think it tenable, as the appellant in signing the arbitration agreement voluntarily and with knowledge waived everything beyond mere notice.

. As to the notice served upon Sawyer, “the authorized agent” of the appellee, and served within the State of Illinois, January 4, 1915:

Of course, Sawyer was not on January 4,1915, in the employment of appellee, and in fact had not been since October, 1913. The appellee in July, 1910, qualified as a foreign corporation in the State of Illinois, and opened an offieé in Chicago and appointed Sawyer its statutory agent. The appellee had not solicited or actually performed any construction work in Chicago, or elsewhere in Illinois, since May 21, 1914. The renunciation of its license to do. business in the State of Illinois and the revocation of the authority of the statutory agent occurred on December 18, 1914.

It is claimed, however, by the appellant “that a corporation that has once complied with the foreign corporation statute is estopped from revoking the appointment .of its statutory agent, and withdrawing from the State so long as any controversy exists between it and Illinois citizens, growing out of business transactions entered into in Illinois while the corporation was authorized to do business here.”

The statute uses the words “shall constantly keep on file * * * the name and address of some person.” (J. & A. ft 2528.) It contains no express provision as to any future time when it may be the foreign corporation has ceased entirely all business within the State. Of course, it is reasonable, in view of the lack of affirmative statement in the statute itself, as to whether the agent’s name may be withdrawn when the corporation has ceased entirely to do business in the State, to conclude that, as the presence of an agent at such a time would be entirely superfluous, as there could be no need of any one to be served, the name might then be withdrawn. But in the instant case, was not the appellee doing business in the State of Illinois on January 4, 1915? The arbitration agreement was entered into on March 6, 1913, and on November 5, 1914, the arbitrators made their award and signified that appellant was entitled to recover. Of course, the matter of the arbitration, being the result of an unexecuted, unfinished contract between appellant and appellee, was the “business” of both parties, each was interested in its side and in its success, and probably would be affected as a matter of profit or loss, according to the ultimate determination of the arbitration. A voluntary arbitration involving profit or loss to the extent of thousands of dollars is as much a matter of “business” as far as the appellee is concerned as any matter of building construction. So on December 18, 1914, the date when appellee undertook to withdraw the name of Sawyer as its agent, it cannot he said, reasonably, that it was not doing business in this State.

In the case of Forrest v. Pittsburgh Bridge Co., 116 Fed. 357, Forrest brought suit against the Pittsburgh Bridge Company and served one Church, a former agent of the corporation, on April 22, 1901, although the company had not only gone out of business in the State of Illinois, but at a prior date, May 12, 1900, ceased doing business anywhere, and was from that time on settling up its affairs. Judge G-rosscup’s opinion in that case is undoubtedly to the effect that a foreign corporation, “not doing business in the State, cannot be held to be found in the State.” That case, however, is not in point, where as here the corporation is still doing business in the foreign State. Of course, it looks as though after service on Bentley, Burling and Swan, appellee had made a deliberate effort to escape a threatened judgment, and so conduct itself that no notice could be served and no judgment be entered, and the . normal result of the private contract of arbitration entirely thwarted and rendered nugatory. It may be assumed that if the award, had been favorable to appellee, the latter would have considered the result as taking place in the State of Illinois and as part of and belonging to its business. The contract of arbitration of March 6, 1913, was the outgrowth of and provided for in the building contract of October 30, 1911. It is difficult to escape the conclusion that the arbitration proceedings and the award, arising as they do by reason of the terms of the original building contract, was a matter of business. If “ a man does business when he contracts obligations,” according to the dictum of Mr. Justice Brown in Knights Templars’ & Masons’ Life Indemnity Co. v. Jarman, 187 U. S. 197, it may be said, also, that the acts of the parties in fulfilment of their contractual obligations constitute business at least as meant and intended by the statute in question. We are therefore of the opinion that the appellee on January 4, 1915, at the time when Sawyer was served with notice, had not entirely ceased doing business in the State of Illinois, and that such service was sufficient. BrownKetcham Iron Works v. Geo. B. Swift Co., 53 Ind. App. 630, 100 N. E. 584, at 590. The judgment of the trial court therefore is reversed and the cause remanded.

Reversed and remanded.