author: Mr. Justice Smith

text:
    Frank J. Pluard, Defendant in Error, v. Peter J. Gerrity et al., Plaintiffs in Error.
    Gen. No. 15,597.
    Landlord and tenant—what damages cannot he recovered in action for failure to furnish, heat, etc. Damages not proximately resulting and not definitely established as to amount cannot be recovered in an action for the breach of a verbal agreement to furnish heat, etc.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 19, 1911.
    Frank Foster, for plaintiffs in error.
    Kruse & Peden and W. S. Whittlesey, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

In the case of Pluard v. Gerrity, 146 Ill. App. 224, the opinion reversing and remanding the case was filed January 8, 1909. On February 6, 1909, the defendant in error, hereinafter called plaintiff, again brought suit in the Municipal Court against plaintiffs in error, hereinafter called defendants, “for damages for breach of a verbal contract to furnish steam heat and hot water for barber shop in premises described as cottage in rear of lot known as 103 92nd street, Chicago,” claiming damages for plumbing and pipe fitting, coal, gas for heating, stoves, tank, loss of profits and damage to business. The cause was submitted to a jury, who found for the plaintiff and assessed the damages at $800, and judgment was entered on the verdict.

It is again urged that there was no liability on the part of Peter J. Gerrity. We think the evidence on that question was sufficient to go to the jury and are not disposed to disturb the verdict in that respect.

It is next urged that the court erred in the admission of evidence on the question of damages. On July 29, 1907, the plaintiff entered into a lease with the defendants for said premises for one year from August 1, 1907, to be used as a barber shop. The plaintiff testified that after the lease was executed John J. Gerrity said to him: “How here, we have some radiators in our basement and if you will get some one to take them out and put them in your living rooms and connect them we will furnish you with all the steam you want, so you don’t have to bother with coal,” to which he said, “All right.” The defendants claim the plaintiff said “he would pay for the plant” if furnished the steam. The jury having found for the plaintiff we assume his statement is correct; and it is on a breach of this contract the action is based. The plaintiff secured a plumber and had the connections made, thereby incurring a liability for $106.60, and, if it was a reasonable, expense, is entitled to recover therefor. In making the connections some pipe was left exposed. The defendants had this covered with asbestos and claimed the plaintiff should pay for the same. The plaintiff refused to pay this charge and the defendants shut off the steam. The plaintiff thereupon purchased a stove, tank, etc., to provide heat and hot water, the cost of which, together with the cost of coal and gas, and the loss of profits, were recovered as damages.

The lease contained no provision that the defendants should furnish a stove, heat or hot water. It therefore devolved upon the plaintiff to furnish his own heat, hot water, etc. Instead of buying a stove, coal, etc., in the first instance, he made the said verbal agreement to secure steam. To allow damages for the reasonable and necessary expenses incurred therein in connecting said radiators, and also allow .the cost of his stove, coal, etc., would clearly be to allow double damages.

To prove loss of profits and damage to his business the plaintiff introduced in evidence his cash book showing his gross receipts from August 5, 1907, to and including February, 1909. We are unable to see how loss of profits can be determined from such evidence. It is true that in some instances, a proper foundation being laid, evidence of gross receipts may be admitted, but unless there be also evidence of expenses there certainly can be no calculation of profits. Ueither is there any evidence that in any way warrants the conclusion that customers were lost to plaintiff because he had coal and gas heat instead of steam heat.

We are also of the opinion that the plaintiff cannot recover for less of profits and damage to business, if any, for any time other than the few days from the timé the steam was shut off until the stove and gas heater, etc., weré installed, so that the plaintiff could continue his business. This action is not based upon the lease, but upon the verbal agreement made after the execution of the lease.

In C. C. C. & St. L. Ry. Co. v. Wood, 189 Ill. 352, the court said: “Where profits are the object and inducement of the contract and known to both parties so to be, such profits may be proven as a measure of damage for a breach of contract when susceptible of being proven with reasonable certainty.” In Taylor Mfg. Co. v. Hatcher, 3 L.R.A. 587, it is said in a note thereto: “In an action upon contract only such damages are recoverable as are the natural and proximate consequence of the breach. These include direct damages, and such as the parties contemplated would be likely to result from a breach when the contract was made.” Citing authorities. In Cyc., Vol. 13, pp. 51 et seq., it is said: “As a general rule a party is entitled to recover the profits that would have resulted from a breach of a contract into which he had entered, where such breach is the result of the fault or omission of the other party. In such case, however, it must be clearly shown that profits of which he claims to have been deprived are capable of being definitely ascertained, although it is not necessary that the profits claimed should be 'certain’ or 'probable;’ it is sufficient if they are reasonably 'certain’ or reasonably 'probable.’ Where there are no rules of evidence or no fixed mode of calculation applicable to the particular state of facts involved, it has been the rule to deny them. The broad general rule in such cases is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions: The damages must be such as may- fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed.” Citing authorities. Tested by these rules, it appears to us that when the parties made the arrangement to connect the radiators, the profits of the business were not the object and inducement thereof or in contemplation of the parties.

Other errors are assigned, but as they are not liable to again occur they need not be discussed.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Minsky, Defendant in Error, v. David Steinberg, Plaintiff in Error.
    Gen. No. 15,655.
    1. Appeals and errors—how record cannot be impeached. Affidavits will not be considered which tend to impeach the transcript of the record filed on review.
    2. Bailments—what essential to recover of bailee. To recover damages from a bailee for the negligently keeping of a bailment, its condition at the time of delivery should be shown.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 19, 1911.
    Romas G. Lewis, for plaintiff in error.
    A. J. Bedard and Samuel Spitzer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought suit against the plaintiff in error, hereinafter called defendant, for damages to a two seated buggy. The plaintiff testified that he kept a livery stable and rented to the defendant the buggy; that two or three hours thereafter he was informed by the defendant the buggy had broken down; that he received the buggy in a damaged condition, put it in the barn and never had it repaired; that its value when purchased was $140; also that the defendant promised to make good the damage done. The defendant denied that he had rented the buggy, and said the buggy wheel broke without any apparent cause when crossing a street. The court, to whom the cause was submitted without a jury, found for the plaintiff and entered judgment against the defendant for $100.

A motion by the plaintiff to strike what is termed the bill of exceptions from the record was reserved to the hearing. Affidavits were filed in support and also in opposition to said motion. Affidavits cannot be received to impeach the record.

In West Chicago St. R. R. Co. v. Morrison, etc., 160 Ill. 288, the court holds the record imports absolute verity, and cites many authorities. Under the well established rule there announced the motion to strike the bill of exceptions from the record is denied.

The judgment must be reversed because there is no proof in the record of the damages. We have recited all the testimony on that question, and from that evidence it is not possible to determine the damages. Neither is the defendant presumed to have been negligent, for there was no evidence that at the time the buggy was delivered to him it was in good condition. Cumins v. Wood, 44 Ill. 416; Funkhouser v. Wagner, 62 Ill. 59; Hudson v. Bradford, 91 Ill. App. 218; Brewster v. Weir, 93 Ill. App. 588.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank T. Huening, Defendant in Error, v. The Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 15,667.
    Municipal Court—token judgment not disturbed. A judgment of the Municipal Court will not be disturbed if the Appellate Court is satisfied that substantial justice has been done thereby.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    West, Eckhart & Taylor, for plaintiff in error.
    Martin Walsh, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, recovered a judgment in the Municipal Court against plaintiff in error, hereinafter called defendant, for $26.50 for damages caused by delay of a telegram advising plaintiff of the death of his father.

The only point urged by the defendant is that the negligence shown by the evidence was not proven to be the proximate cause of the alleged damages. There is some force in the argument made by the defendant. The defendant, however, was clearly guilty of negligence and the damages assessed are not unreasonable. On a consideration of all the evidence we are of the opinion there was sufficient evidence on the part of the plaintiff to make a pruna facie ease on the point in question, and as the defendant offered no evidence to the contrary we are not disposed to disturb the finding in that respect.

The judgment is affirmed.

Affirmed.


text:
    John E. Mullally, Defendant in Error, v. Albert F. Lott, Plaintiff in Error.
    Gen. No. 15,685.
    1. Parent and child—liability for board and lodging. Held, under the evidence, that the court in this case might properly find an implied promise on the part of the parent to pay for.the lodging and necessary clothing of his daughter.
    2. Res judicata—what essential to application of doctrine. Whether a former adjudication is a complete bar or conclusive of some particular fact, termed an estoppel by judgment, it seems the rule is settled that the litigation must be between the same parties, or substantially the same, or their privies.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    Charles T. Farson and Gardner, Stern & Anderson, for plaintiff in error; Charles T. Farson, of counsel.
    William E. Hughes and William A. Jennings, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This suit was brought by defendant in error, hereinafter called plaintiff, against plaintiff in error, hereinafter called defendant, to recover for board and clothing furnished defendant’s wife and minor daughter. On a hearing by the court the finding was in favor of plaintiff, Mrs. Lott’s father, for board and clothing furnished defendant’s daughter from January 1, 1908, to January 1, 1909, for $520, and against plaintiff on the claim of $200 for board and clothing furnished the wife from January 1, 1908, to June 1, 1908. Judgment was entered against the defendant for $520, to reverse which he sued out a writ of error. The plaintiff assigns cross-errors on the finding of the court against him for the said claim of $200.

In July, 1907, the defendant’s wife, Mrs. Lott, filed a bill against the defendant in the Superior Court for separate maintenance. On a hearing of the case in December, 1907, it appeared to her counsel that the chancellor was inclined to decide the case against her, and on her motion the bill was dismissed. During a portion of this time the court had allowed her temporary alimony. In January, 1908, she filed a bill in the Circuit Court for separate maintenance. On a motion in this case for temporary alimony the circumstance of the prior hearing and dismissal of the bill on her own motion in the Superior Court was presented to the chancellor and the motion denied. In June, 1908, the bill was amended, praying for a divorce. The defendant filed an answer denying the charges alleged, extreme and repeated cruelty. On a hearing no defense was made and she was decreed a divorce. June 12th an amended decree was entered, in which it was recited that by agreement a division of real estate had been made, and the defendant made conveyance to the complainant in accordance therewith. There was no provision made for the daughter in either the decree or the amended decree.

In Hunt v. Thompson, 4 Ill. 179, the court said: “That a parent is under an obligation to provide for the maintenance of his infant children is a principle of natural law; and it is upon this natural obligation alone that the duty of a parent to provide his infant children with the necessaries of life rests; * * * This natural obligation, however, is not only a sufficient consideration for an express promise by a father to pay fpr necessaries furnished his child, but when taken in connection with various circumstances has been held to be sufficient to raise an implied promise to that effect. But either an express promise, or circumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child by a third person.”

This is the rule of law in this state, and in Johnson v. Smallwood, 88 Ill. 73, the court in following same quoted Parsons on Contracts, as follows:

“The authority of the infant to bind the father by contracts for necessaries is inferred, both in England and in this country, from very slight evidence.”

The defendant made a feeble effort to maintain his contention that he desired and offered to support and provide for his daughter. We think the evidence clearly shows the contrary. He was amply able, but made no provision for her, although he knew she had no means and must depend on some one for support. He knew the plaintiff, her grandfather, was providing for her. The situation seemed in a measure understood by both plaintiff and defendant; and as to the lodging and providing by the plaintiff for the daughter, we are of the opinion the greater weight of the testimony is that the arrangement was acquiesced in by the defendant. Without going into a discussion of the evidence, we conclude that under all the circumstances the court might properly find an implied promise on the part of the defendant to pay for the lodging and necessary clothing of the daughter.

On the cross errors assigned it is urged by the plaintiff that the decree of divorce was res adjudicada of the question that she left the defendant without good cause and against his consent. Whether a former adjudication is a complete bar or conclusive of some particular fact, termed an estoppel by judgment, it seems the rule is settled that the litigation must be between the same parties, or substanially the same, or their privies. Hanna v. Read, 102 Ill. 596; Leopold v. Chicago, 150 Ill. 568; Markley v. People, 171 Ill. 260; First National Bank v. Peoria Watch Co., 191 Ill. 128; Stecher v. People, 217 Ill. 348; and numerous other authorities. Had the Circuit Court in the hearing of the divorce case found the issues in favor of the defendant, Lott, would that finding have been binding on and been an estoppel of Mullally on a suit to recover for necessaries furnished Mrs. Lott? We think not. In MacDonald v. Dexter, 234 Ill. 517, the court said: “Where a matter becomes res ad judicata it is mutual and equally obligatory upon both parties; if it is not binding upon both it binds neither.”

It therefore appears that the trial court properly admitted the evidence on the issues whether Mrs. Lott was living separate and apart from her husband without good cause and against his consent; and it is clear that the plaintiff had full knowledge of thd situation. There was much testimony introduced bearing on said issues, but no good purpose can be subserved by a recital here of the bickerings and quarrels between the defendant and his wife. The trial court determined those issues of fact in favor of the defendant, and we do not consider, under all the evidence on this question, that we should hold the trial court was clearly and manifestly wrong in his findings thereon.

The statement of the court in Bevier v. Galloway, 71 Ill. 517, is in point in this case: “The plaintiff knew, as he testifies, that Mrs. Bevier was living apart from her husband, and knowing this fact, he was bound to know whether she had cause for so absenting herself or not, and having rendered the services to and for her under these circumstances he cannot hold the defendant liable. Rea v. Durkee, 25 Ill. 414.”

For the reasons indicated the judgment is affirmed.

Affirmed.


text:
    C. A. Bergh, Plaintiff in Error, v. Charles P. Crosby, Defendant in Error.
    Gen. No. 15,688.
    Husband and wife—authority of latter to hind former. Held,
      that a prima fiacie case of authority by the wife to bind her husband with respect to family necessaries was made out.
    Error to the Municipal Court of Chicago; the Hon, Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 19, 1911.
    Oscar D. Olson, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This suit was brought by the plaintiff in error against the defendant in error to recover on an account stated for groceries. The evidence showed that the defendant resided with his wife in Chicago; that at various times both the defendant and his wife ordered groceries from the plaintiff, and Mrs. Crosby at various times made payments on the bills rendered; that a bill was presented to Mrs. Crosby at her home, the amount of which was not proven, but was claimed to be $208, which she examined, and paid ten dollars thereon and said to come back in a week and she would pay ten dollars more. Subsequently calling to make a collection, it was learned that the defendant and his wife had moved to Ohio. Mrs. Crosby later returned to Chicago-. While here she met with the plaintiff and others at a lawyer’s office for the purpose of adjusting this and another claim. It is shown that at that conference the plaintiff claimed there was then due $192.70, and Mrs. Crosby said the bill was not over $158 and she had made payments thereon, not stating how much. On this evidence, submitted to the court without a jury, the court held agency of the wife was not proven, found for the defendant, quashed the attachment and discharged the garnishee.

The general rule as we understand it is stated in Compton v. Bates, 10 Ill. App. 78, as follows: “In regard to the proof of this authority in the wife, the books state the rule generally to be, that if the husband and wife are living together, there is a presumption arising out of the circumstances 'of cohabitation that the husband assents to contracts made by the wife for necessaries suitable to his degree and estate; but this presumption, it is apprehended, can be rebutted by proof,” etc. This rule is supported by Rea v. Durkee, 25 Ill. 414; Gotts v. Clark, 18 Ill. 229; Bonney v. Perham, 102 Ill. App. 634, and Schouler on Husband and Wife, sec. 106. Mr. Schouler states: “Thus the presumption which cohabitation furnishes is strengthened by proof that the wife has been permitted by the husband to purchase other articles of the same sort for the use of the household. But it must be ordinarily things for what may be termed the domestic department, to which the wife’s authority to bind her husband is restricted.”

It is therefore a question of evidence and if the wife had authority to contract and to pay for the groceries, she necessarily had authority to admit the indebtedness. We think the evidence sufficient to establish the authority of Mrs. Crosby to bind the defendant, and that a prima facie case was made out for the sum of $158; but as the plaintiff claims more than that sum, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Brown

text:
    Herman A. Pretzel et al., Defendants in Error, v. Christian Anderson, Plaintiff in Error.
    Gen. No. 15,581.
    Brokers and factors—legal effect of exclusive agency. An exclusive agency to sell property subject to revocation by ninety days’ notice, may be revoked at any time unless a consideration for the granting of the agency is established. Services, however, definitely proven to have been rendered, may under certain circumstances be recovered for upon a quantum meruit, but a recovery of the specific compensation provided for if the purchaser is obtained after revocation will not be sustained.
    Error to the Municipal Court of Chicago; the Hon. W. H. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 29, 1911.

      Ernest W. Clark, for plaintiff in error.
    Tatge & Koepke and Robert F. Kolb, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

There is no merit in the objection made in this cause that for various reasons the statement by the Municipal Court which is denominated in the transcript of the record a bill of exceptions should not be considered. The objections are highly technical and, under the letter and spirit of the Municipal Court Act, untenable. The decision in this court, as in the court below, must turn on the merits of the cause. The question is whether the finding and judgment of the court were sustained by the law and the evidence.

The defendant below (the plaintiff in error here) executed and delivered on its date the following instrument to the plaintiffs:

“Chicago, Sept. 23/08.
Messrs. H. A. Pretzel & Co.,
Chicago, Ill.
Gentlemen: I the undersigned hereby give you the ex-
clusive Agency and purchase privilege for the sale of my property Mo. 535 M. Monticello Ave., in the City of Chicago, in the County of Cook in the State of Illinois, until terminated by me by giving ninety days notice, at the price of Five Thousand ($5000) Dollars net of commission. Mo commission to be paid on the above price.
Chris. Anderson.”

Acting under and by virtue of the authority or contract or option (whichever it may be called), the plaintiffs, who were licensed real estate brokers in the city of Chicago, from time to time offered said premises for sale to various prospective purchasers.

On December 29, 1908, the plaintiffs received the following notice dated Chicago, December 22, 1908:

“H. A. Pretzel & Co.,
Chicago;
Gentlemen: Tour are hereby notified that your agency for the sale and purchase privilege of my property known as Number 535 North Monticello Avenue in the City of Chicago, County of Cook and State of Illinois, is hereby terminated.
Christian Anderson.”

Almost immediately thereafter, on the 31st day of December, 1908, the plaintiffs secured a purchaser for the property, who signed a written contract to take the same for $5,200. This contract provided for the delivery to the purchaser of an abstract of title for examination within a reasonable time.

The defendant testified in the case that at the time of the delivery of the first communication above quoted it was his understanding that any agency which was granted to the plaintiffs should be only for a term of sixty days, and that at or about November 1, 1908, he wrote a letter to the plaintiffs (which, however, the plaintiffs denied receiving), stating that he had made certain improvements on his property and would not sell at the price specified in the instrument.

He also testified that in company with another real estate broker, Mr. Moland, he called on December 29, 1908, at the office of the plaintiffs and notified them that he had entered into a contract for the sale of his property to another party.

.However, on the defendant receiving notice from the plaintiffs that they had a purchaser for the property at the price of $5,200, and on a request from the attorney of said purchaser, the defendant, through the said Moland, offered to deliver the abstract of title of said property for examination if the plaintiffs would sign a receipt therefor and deposit $100 as security. The plaintiffs would not agree to this, and thereupon the defendant offered to leave the abstract with the Chicago Title & Trust Company for examination by the purchase? there. This offer was not accepted, but the purchaser withdrew from the proposed purchase.

Thereupon the plaintiffs brought this suit, and by the consideration of the Municipal Court secured a judgment of $200, which this writ of error is brought to reverse.

The only contention made by the plaintiff in error which needs notice, is that the original instrument of September 23, 1908, and the “exclusive agency and purchase privilege” it purports to give, being without consideration, could be terminated at any time, and that notice of revocation, notwithstanding the terms of the said instrument, need not be given ninety days before it took effect.

The contract is not under seal, and was not paid for when given. It is unilateral, it is maintained, and without consideration— a nudum, pactum, liable to be revoked at will— despite its own assertion of inviolability except on certain notice.

On the other hand it is contended that we cannot consider the contract of “exclusive agency and purchase privilege” of September 23rd between the plaintiffs and defendant as without consideration from the moment that anything was done under it by the plaintiffs. They were, in one view or phase of this paper, employed by the defendant to sell his land for anything they could get that would net him $5,000.

The court found that after such employment they, from time to time, offered said premises for sale to prospective customers. In other words, in the exercise of the business as real estate agents, they spent some time and energy at least in the transaction of this business they were employed to do. This conforms to the probabilities in the case of such a contract. In acting under it, it is contended, the plaintiffs must be considered to have given consideration for it. We do not think, however, this is a consideration which makes the agency irrevocable either generally or for any time specified therein. Had there been definitely proven.a certain amount of money or energy expended in the attempt to sell before the notice of revocation was brought to the plaintiff’s attention, they might have recovered on a quantum meruit, but they cannot use such indefinite proof to justify a judgment for compensation at an agreed figure for services performed after the revocation had been notified to them in negotiating a sale which would not be enforceable by the purchaser. Blackstone v. Buttermore, 53 Pa. St. 266.

Nor was there a ratification of the proposed sale by the defendant. He attached conditions to ratifying or performing the sale contract which were not accepted. As the original authority of the agent had been ended when the contract was made, he had a right to do this.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    C. Furness Hately, Appellee, v. John W. Kiser, Appellant.
    Gen. No. 15,627.
    1. Partnership—what does not establish. An interest in profits accruing through use of office space, etc., does not establish a partnership so as to require a joinder of a party having such interest as a plaintiff in an action in assumpsit.
    2. Brokers and factors—ordinance requiring license construed. A general ordinance of the city of Chicago requiring brokers to be licensed according to its term's, does not include a stock broker.
    3. Gambling—when transaction in stock does not violate statute. In this ease while no affirmative defense that the transaction in question was gambling in nature was made the plaintiff was put upon his proof to establish a legitimate transaction; held, under the evidence, that the legitimacy of the transaction prima facie appeared and that a recovery should be sustained.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 29, 1911.
    Gregory, Poppenhusen & McNab, for appellant; S. S. Gregory, of counsel.

      Ira C. Wood, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

Hately, the plaintiff below, the appellee here, on March 6, 1909, recovered a judgment in the Municipal Court of Chicago against John W. Kiser, the defendant below, the appellant here, for $5,836.43 and costs. This sum was the amount of a verdict rendered by a jury less a remittitur of $254.69 for some reason entered by the plaintiff before judgment was given on it.

To reverse this judgment this appeal has been prosecuted.

The cause involves a transaction in stocks, which stated according to the contention of the plaintiff as to what was proved at the trial, was this:

The defendant Kiser was a man of large affairs and resources living in Chicago, who frequently dealt through stock brokers in accordance with the usages and customs of business so conducted in stocks commonly bought and sold on the stock market for purposes of speculation as well as of investment. He had so traded prior to the transaction involved here through the well known stock brokerage houses of Finley Barrell & Co. and Bartlett, Frazier & Carrington of Chicago. While thus trading in stocks for speculation through Finley Barrell & Co. he became well acquainted with the plaintiff Hately, a young man then about twenty-seven years old, and connected with Finley Barrell & Co. as an employee or otherwise. This was in 1903. As Mr. Kiser was known to be a man of substantial fortune, a large line of credit was extended to him by Finley Barrell & Co.

Mr. Hately in 1903 or 1904 took up the stock brokerage business for himself, forming a partnership under the name of Geddes & Hately. Mr. Geddes did not remain long in the business, which became that solely of the plaintiff Hately in August 15, 1905, and was afterward conducted under the name of Furness Hately & Co. Hately and Kiser were members of the same Club and met there and upon the street occasionally. Hately informed Kiser that he was in business for himself and solicited an order from him. In the latter part of 1904 Kiser gave Hately an order to buy 200 shares of Chicago, Milwaukee and St. Paul stock at a given price, and it was bought at that price and “carried” by Geddes & Hately until August 9, 1905, when apparently by the order of Kiser it was sold. Ho money was put up as margin by Kiser on this transaction nor payment made on account of the business nor for carrying the stock, nor did Hately ask for any. On the 9th of August, 1905, however, the sale of the stock produced a profit which left to the credit of Kiser with Hately after all the customary charges (as may be presumed) were deducted, $1,285.63, which at Kiser’s request was sent by check to him. In the meantime one other transaction took place within the compass of a day. On December 8, 1904, at the order of Kiser, Hately bought for him 100 shares of Union Pacific stock at 108 and sold it, likewise at Kiser’s order, at 109. Ho money was paid as margin on this transaction, but it would appear that whatever small amount may have been left to Kiser’s credit out of the profit after the ordinary commissions were charged against him so remained to his credit during the pendency of the deal in Milwaukee and St. Paul stock, and was finally included in the check of $1,285.63 which was sent to him September 28, 1905. That was then the amount of his balance, and Hately says he never had at any time any occasion to pay Kiser any other money.

Trade letters such as -stock and grain brokers’ offices are accustomed to send out were sent by Hately to Kiser after September 28th and before December 5, 1905. December 5th Mr. Kiser called Mr. Hately on the telephone, told him that he had received one of these letters containing advice on the subject of “Hickel Plate” stock (the name given the stock of the New York, Chicago & St. Louis Kailroad), and asked if he would still advise the purchase of it. Hately replied in the negative and recommended the purchase of International Mercantile Marine Preferred stock, which had been a rather inactive stock at about 36 for some timé. Whereupon Kiser told Hately to buy 200 shares for him and let him know by telephone when the order was executed. Hately bought the stock through the stock exchange or brokerage house of Bartlett, Frazier & Carrington, which had an office in Chicago and held a membership in the New York Stock Exchange, which Hately did not.

The International Mercantile Marine stock was not then listed on the New York Stock Exchange and was known, therefore, as a “curb” stock, because it could not be traded in on the Exchange, but was bought and sold on the street in New York near the Exchange with other stocks not so listed. The brokers who trade in these stocks, however, represent reputable stock exchange houses, and the transactions there which fix the market price are reported as news in the financial journals and daily newspapers. Kiser put up no margin with Hately and was asked for none by him, but Hately, as we read his testimony, says that contemporaneously with the order to Bartlett, Frazier & Carrington, or shortly subsequent thereto, he sent Bartlett, Frazier & Carrington a margin for a portion of the price, 100 shares at 35|- and 100 shares at 35$. However that may be, Bartlett, Frazier & Carrington reported to Hately within a few minutes that they had bought the stock in question at said price, and Hately reported the same by telephone to Kiser, and afterward on that date sent through the mail to Mr. Kiser a letter of advice stating the transaction as follows:

“Chicago, December 5, 1905.
J. W. Kiser,
Dear Sir: We have this day bought for your account and risk according to the rules of the New York Stock Exchange,
100 International Mercantile Marine Pfd., 35£.
100 International Mercantile Marine Pfd., 35$.
This account received by telegraph. '
* * * * ' * -x- x- x- * -x
Respectfully yours,
Furness Hately & Co.”

Shortly afterward, but later than January 12,1906, Hately and Kiser met accidentally at their club, and spoke about the transaction, in which conversation Kiser told Hately that if there was “ever a profit in it” (the stock) “over and above commissions and interest,” he was to sell it out. At various indefinite times thereafter, in incidental meetings, Kiser and Hately spoke together about the stock and the transaction. “It came up as a natural topic of conversation,” Hately says. Hately did not receive from Bartlett, Frazier & Carrington the certificates of stock, but from the fifth day of December, 1905, to the 14th day of ¡November, 1907, Bartlett, Frazier & Carrington had possession of them subject to the order of the plaintiff and for his account. Hately did not call on Kiser for “margin” or “carrying charges” or money for any other purpose until October, 1907. During the time between January 12, 1906, and ¡November 14, 1907, the stock never reached a price on the market at which it could have been sold without a loss to Kiser.

In October, 1907, Hately wrote Kiser demanding $5,000 as “margin” or security on the transaction, and later in ¡November wrote him two more letters, one requesting him to take the stock up or settle for it, and one on ¡November 7th as follows:

“As we are going out of the stock business immediately please instruct what house we shall deliver your Int. Her. Marine 200 pfd. shares to and oblige,
Yours very truly, Furness Hately & Co.”

Hately received no answers to these three letters, but after some ineffectual efforts he reached Kiser over the telephone ¡November 14, 1907, and asked for such an answer. Kiser then asserted that he had no transaction with Hately in the stock involved and had never had such stock bought or carried for his account. Hately replied over the telephone to Kiser that he would “sell him out,” and gave orders to Bartlett, Frazier & Carrington to sell for his account the 200 shares of International Mercantile Marine which they held for him on his order of December 5, 1905. This Bartlett, Frazier & Carrington did at the market price of 11^-. They gave Hately credit for the margin which he had paid them and for the amount received for the stock, which must have heen $2,300, and deducting these credits from the price at which they bought (which was $7,162.50) plus interest on the debit balance which had remained on their books on their advances and commissions, called on him for the balance due them, which he paid. Neither the amount of the margin advanced by Hately nor of this balance seems in the evidence to be specifically named, but together by computation they must have amounted to $4,862.50 plus the interest and commissions which they charged. The record seems to us singularly lacking in precise figures showing what that interest and commissions or charges were, but so far as Hately’s charges for advances against Kiser went they would seem from the evidence properly to be (assuming that those matters were proven which Hately contends were proven) the amount of the price at which the stock was bought on December 5, 1905, with proper interest on that amount of $7,162.50 to November 14,1907, when it was sold, and on the balance then shown after the amount of $2,300 realized on the sale was deducted, to the date of the verdict. This would account for the amount of the judgment, which may properly, we think, be assumed to be equaled by the advances shown by the evidence to have been made by Hately on account of this “deal,” without addition of broker’s charges for commissions. This fact is important in some views of the law applicable to this controversy which might be taken.

Kiser refused to acknowledge any liability in connection with these transactions, and Hately brought a suit of the first class in assumpsit in the Municipal Court against him, putting the ad damnum, at $7,000, and attached to the declaration an affidavit that the demand was for money due from the defendant to the plaintiff for the purchase and sale of 200 shares of the preferred capital stock of the International Mercantile Marine Steamship Company, and that the amount due was $5,973.20, with interest from November 15, 1907.

The declaration itself contained two special counts and the consolidated common counts. The special counts claimed from the defendant the amount at which the stock was alleged to be bought for him with brokerage fees and. interest “according to the custom of the Chicago Stock Exchange of the city of Chicago.” The common counts contained of course the usual counts for money laid out and expended for the defendant at his request.

The defendant first pleaded the general issue with an affidavit of defense denying that he ever entered into any engagement whatever with the plaintiff in respect to the stock mentioned in the plaintiff’s declaration. Subsequently, on leave granted by the court, the defendant filed an additional plea to the special counts of the declaration, averring that the plaintiff at the time of the transactions alleged in the said counts of the declaration “was engaged in the business of a stock broker in the city of Chicago aforesaid relative to property with the custody of which he had no concern and as such and in that capacity and not otherwise acted in respect of each and all of the matters and things in said two counts of his said declaration therein respectively stated and that the said plaintiff did not at any time prior to the said 5th day of December, A. D. 1905, nor at any time thereafter, obtain a license from the city of Chicago authorizing or permitting him to engage in the business or act in the capacity of a broker.”

Before the case was submitted to a jury a demurrer filed by the plaintiff to this additional plea was overruled. The plaintiff then amended the special counts before set forth by verbal changes which substituted “agent” and “agents’ fees” for “broker” and “brokerage fees,” and eliminated reference to the custom of brokers or of the stock exchange. The general issue and the additional plea were ordered to stand to the amended counts, and the plaintiff filed a replication to the additional plea, which replication traversed the allegation of the plea that the plaintiff was engaged and acting in the matters described in the declaration in the business of a broker relating to property with the custody of which he had no concern, alleged that he was on the contrary so acting with reference to property with the custody of which he had concern and control, and concluded to the country.

The case was submitted to a jury, which, as before recited, found the issues for the plaintiff and assessed the plaintiff’s damages at $6,091.12, which counsel for appellee in his argument says made no allowance for commissions or other charges, but was for the amount expended or advanced by the plaintiff for the defendant, with interest charges thereon, less the sum received on the sale of the stock. This assertion is not questioned by counsel for appellant, and is borne out by computation. It may therefore be assumed as an admitted fact in the cause.

A remittitur for $254.09 was entered by the plaintiff and judgment given, as before stated, for $5,836.43.

This judgment the appellant, under the assignments of error made and argued, attacks on several grounds; which we shall separately consider.

He first says that even assuming to be proven the state of facts which we have" set forth as alleged by the plaintiff, the judgment cannot as a matter of law be maintained, because the evidence also shows a nonjoinder of a necessary plaintiff. One Thomas E. Wells was interested, he maintains, in the profits of the plaintiff’s business in such a way as to make him a partner therein and a necessary party to this suit. During the time of these transactions it appears by an answer of the plaintiff to interrogatories filed by the defendant and in the testimony of plaintiff that “Wells was interested in the profits of the business conducted by plaintiff.” But it also appears by the testimony of the plaintiff that this share or interest in the profits was paid “for office space and for service of Wells’ office force in taking care of plaintiff’s bookkeeping.” There is no other evidence on the matter, and we think that the share in the profits must be held to have been merely compensation for services and the use of property in the business, and therefore not by itself to establish a partnership. Fougner v. First Nat’l Bank, 141 Ill. 124. Irrespective, therefore, of any question of pleading, we do not think a nonjoinder was established in the cause.

The defendant also maintains that even if the jury had been justified in believing the transactions t° have beep proven as before set forth in the statement of plaintiff’s contentions, they should not have found a verdict for the plaintiff, because it also appeared by stipulation in the cause that “at the times in the declaration referred to and since the plaintiff had no license from the city of Chicago as a broker.” Therefore, it is maintained, the plaintiff was,, according to his own testimony, engaged in an illegal transaction through which he acquired no standing to recover from the defendant at law either commission and brokerage charges (which are not now in controversy) or damages from the defendant in respect of his breach of the contract with him, which was involved in those transactions.

This position is carefully distinguished by the defendant from any claim that the transaction alleged was void as a gambling transaction involving nothing hut wagers on the market, and therefore illegal and void under the statutes or at common law. Such a view of the matter is disclaimed—a disclaimer that we shall hereafter have occasion to advert to. The illegality which forbids the recovery of the advances and expenditures made in this matter by the plaintiff, on the authority and request, as it is contended, of the defendant, lies, according to the defendant’s contention, in the fact that the business in which they were made was in contravention of a general ordinance of the city of Chicago, of which the Municipal Court took judicial notice and of which we therefore, in reviewing the action of that court, also take judicial notice,

The ordinance in question is chapter xiv. of the Revised Municipal Code of Chicago of 1905. The entire chapter is concerning “Brokers.” The provisions asserted to be directly applicable to the matter herein involved are as follows:

"Section 192. It shall be unlawful for any person or corporation to engage in the business or act in the capacity of a brokér within the city without first obtaining a license therefor.”
“Section 194. A broker is one who is engaged for others in negotiating contracts relativq fo property with the custody <?f which he has no conecrn,”

Two other sections of the chapter define “A Real Estate Broker” and an “Insurance Broker.” The remainder of the chapter provides how application for a license may be made and names a fee to be paid therefor, indicates what must be done in case of a change of location in a place of business of a licensee, makes employees of a licensed broker acting as brokers amenable to the Act, and concludes with a provision that “Any person or corporation violating any of the provisions of this chapter shall be fined not less than twenty-five dollars nor more than two hundred dollars for each offense.”

The two questions that are presented by this contention are, first, whether the plaintiff in the transactions involved was a broker under the definition of this ordinance, and, secondly, if he were, whether the advances and expenditures made by him for the defendant in the course of them must fall with the compensation for his services because of the illegality of his conducting an unlicensed business.

In the view which we take of the first of these questions, the second may be said to be academic merely in this case; but as the answer to each has been thought by us to be properly found in the peculiar relations of a person doing the business commonly known as “stock brokerage” to his customers or clients, we shall make allusion to two diverse theories to be found in the authoritative cases on the subject, noting their bearing upon both the questions as a double justification of our decision that the ordinance is not a bar to the recovery herein sought. It is clear to us that the use of the word “broker” or “stockbroker” to characterize a man engaged in the business of buying and selling “stocks” on “margins” or otherwise, according to the usage and custom of stock exchanges which exist in all important business centers, although practically at least universal, does not by itself, in view of the provisions of the ordinance as a whole fix on such a man obligations and liabilities under it. Did section 192 stand by itself, however, that might well be claimed. The word “broker” would then perhaps be properly referred for definition to the common speech of people. But the ordinance in subsequent sections, by first defining a “broker” and then giving other definitions of “a real estate broker” and “an insurance broker,” differing from the first, shows the evident intention to make only those persons who conformed to one or another of these three definite descriptions liable to its restrictions and penalties. Persons therefore commonly called brokers who do not fall within one of the three descriptions are not amenable to them.

This seems the plainer when the prior ordinances concerning brokers, superseded by this one on March 20, 1905, and the decisions of the Supreme Court under them are considered. By the ordinance in force before 1897 “money changers,” “bankers,” “brokers,” “commission merchants,” “merchandise, produce or grain brokers,” “real estate brokers” and “insurance brokers” were lumped together as requiring a license, and “a merchandise, produce or grain broker” was defined as one “who for commission or other compensation is engaged in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others.”

In 1879 the council passed a new ordinance which made the class of persons of this kind requiring a license only “brokers, including real estate brokers and insurance brokers.” The definitions of real estate and insurance brokers in this ordinance of 1897 do not differ practically from those in the present ordinance, but a “broker” generally is defined to be “one who for commission or other compensation is engaged in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others.” This definition was precisely that given to “merchandise, produce or grain brokers” by the ordinance preceding.

Counsel for appellant has argued that the city council in 1905 showed an intent by including persons negotiating purchases as well as sales to enlarge the class of “brokers” subject to the two preceding license ordinances. However that may be, it certainly most materially changed, narrowed and limited it in another direction.

The Supreme Court, through Judge Walker, in Braun v. The City of Chicago, in 1884, 110 Ill. 186, in which it was argued, that the legislature had never empowered the city to require licenses from commission merchants and real estate agents, had held that this was immaterial because the appellants in that case fell within the “precise technical meaning of the term brokers” as defined by lexicographers of high authority, namely, those who are “engaged for others in negotiating contracts relative to property with the custody of which they have no concern.” Later (in 1898) the Supreme Court (speaking by Judge Boggs) having under the ordinance of 1897 an appeal from a judgment enforcing it against a stockbroker, a member of the Chicago Stock Exchange, notes this definition of a “broker” as one narrower than that accepted at the present day, and to establish this proposition points out that persons attending to the purchase and sale of stocks are now called “brokers” and yet are (quoting with approbation from the American and English Encyclopaedia of Law) 'frequently entrusted with the possession of the securities, and may even take and transfer them without the name of their principals appearing in the transaction and often pay or advance the price and receive payment.’ Therefore, says Mr. Justice Boggs, the stockbroker may exercise some of the functions of a factor or of a banker and be none the less a broker, and “it is believed the meaning now most usually given in common acceptation to the word broker is one who transacts the business in which it appears from the stipulated facts the appellant is engaged.” Banta v. The City of Chicago, 172 Ill. 204.

When after these decisions the city council repealed the ordinance which defined the term “broker” as describing one “engaged for commission or other compensation” in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others, and substituting one which defined a broker according to a “narrower description than that accepted at the present day,” and one which the Supreme Court had impliedly conceded would not cover “stockbrokers,” it is reasonable to presume that it designed to exclude them from the operation of the ordinance, or at least not to hold them liable because of their coming, in ordinary speech, under the denomination of “brokers.”

But the inquiry remains to be made whether a stockbroker engaged in transactions like the plaintiff’s in the case at bar, is “engaged for others in negotiating contracts relative to property with the custody of which he has no concern.”

Two views have been taken by the courts of the relations of stockbrokers to their customers, or clients, in transactions like the one involved here, where stocks are by such customer or client ordered bought for his account by a stockbroker, not for investment but to be “carried” and sold again at some future time with the hope of a rise. The one has been expressly adopted by the courts of Massachusetts; the other adopted by the courts of New York and by the Supreme Court of the United States, and, we think, assumed at least by the Supreme Court of Illinois to obtain in this jurisdiction. By the Massachusetts view, the contract between the stockbroker and his customer is purely a contractual one. The broker agrees by it to deliver on demand to his customers so many shares of stock on payment of the remainder of the purchase price where a margin has been put up, and of the whole where it has not. Meanwhile, “There is no obligation resting on the broker .to buy shares in the first instance or even to refrain from disposing of them during the existence of the contract so long as he delivers them when the customer tenders the money and demands performance.” (The language of Judge Lowell in the U. S. District Court in Massachusetts in In re Swift, 105 Fed. Rep. 493). This Massachusetts doctrine (and it is the English doctrine—Bentinck v. London Joint Stock Bank, L. R. 1893, 2 Ch. 120) expressly repudiating the theory of “pledgor and pledgee” adopted by the courts of New York since the leading case of Markham v. Joudan, 41 N. Y. 235, is laid down in Wood v. Hayes, 15 Cray, 375, Covell v. Loud, 135 Mass. 41, Weston v. Jordan, 168 Mass. 401, Chase v. Boston, 180 Mass. 458, and probably in other cases. Referring to it Mr. Justice Holmes in his concurring opinion in Richardson v. Shaw, 209 U. S. 365, says: “If I had been left to decide this case alone I should have adhered to the opinion which, upon authority and conviction, I helped to enforce in another place. * * * A just deference to the views of my brethren prevents my dissenting from the conclusion reached, although I cannot but feel a lingering doubt.”

If this were the doctrine of Illinois, it certainly could not be contended that the stockbroker having the relation which Hately contends it was proven he had with Kiser was a “broker” under the definition of the ordinances—“one who is engaged for others in negotiating contracts relative to property with the custody of which he has no concern.” It is plain that he would be one who had agreed on demand, on condition of a certain payment to be made, to deliver stock which must be at that time his own and with the custody of which he would have the greatest possible “concern.”

We have, however, alluded to this Massachusetts and English doctrine chiefly to compare it with the moi'e commonly received doctrine in this country laid down in Markham v. Jaudon and Richardson v. Shaw; for though not explicitly choosing between the two views, Brewster v. Van Liew, 119 Ill. 554, followed by us in Schaefer v. Dickinson, 141 Ill. App. 234, may be assumed to have shown that in Illinois the doctrine of those cases is the doctrine obtaining in this State. That doctrine is this, as expressed in Markham v. Jaudon by Chief Justice Hunt: The contract between the broker and the customer compels the broker to buy for the customer the stocks indicated, to advance the money required for the purchase, to carry or hold the stocks for the benefit of the customer, to have in his name or under his control ready for delivery the shares purchased or an equal amount of other shares of the said stock, and to deliver such shares to the customer when required by him upon the receipt of the advance and commissions accruing to the broker, or to sell such shares upon the order of the customer and account to the customer for the proceeds. The customer’s obligation is to take the shares so purchased on his order whenever required by the broker and pay the amount advanced by the broker.

Says the learned Chief Justice, developing the theory to which these elements in the contract lead:

“The position of the broker is twofold. Upon the order of the customer, he purchases the shares of stock desired by him. This is a clear act of agency. To complete the purchase” (in this case ten per cent of the price had been put up with the broker as margin) “he advances from his own funds, for the benefit of the customer, ninety per cent of the purchase money. Quite as clearly he does not in this act as an agent, but assumes a new position. He also holds or carries the stock for the benefit of the purchaser until a sale is made by the order of the purchaser or upon his own action. In thus holding or carrying, he stands also upon a different ground from that of a broker or agent, whose office is simply to buy or sell. To advance money for the purchase and to hold and carry stock is not the act of a broker as such. In so doing he enters upon a neto duty, obtains other i ighls and is subject to additional responsibilities(The italics are of course ours.)

The Chief Justice therefore concludes: “While it is true that the dealer” (the customer) “in the present case never had actual possession of the property which he claims to have pledged, he had it sufficiently to bring his case within the principles of the law of pledge. The substance of the first branch of the transaction is this: The plaintiff calls upon the defendants, who are brokers, to purchase for him certain shares of railroad stock and furnishes him with $1,000 for that purpose, agreeing to pay interest on advances he shall make in the purchase and commissions. The defendants make the purchase, having themselves advanced ninety per cent of the purchase money. They bring to the plaintiff the certificates of the stock thus purchased by him and for him and deliver them to him as the owner thereof. He thereupon hands them back to the defendants to hold as security for their advance on the purchase with interest and commissions. If these precise forms had been observed, no one would deny that the redelivery of the certificates would have constituted a strict formal pledge. In my opinion the transaction as it took place amounted to the same thing. To have delivered the certificates to the plaintiff and that the plaintiff should then have returned them to the defendants to he held by them as security for the advance in their purchase, would leave the parties in precisely the same situation as if the defendants had retained them for that purpose. The form of a delivery to the plaintiff and a redelivery by him to the defendants being waived by agreement of the parties, it comes fully within the principles I have already quoted from Story on'Bailments that where the pledgee has the thing in his possession the contract of pledge operates as a delivery the moment the contract is completed. The certificates are appropriated as security for an engagement, to-wit, the payment of the advance with interest and commissions. The possession and the delivery are complete in the abbreviated manner I have described

The theory of a pledge and the constructive delivery and redelivery of the stock pledge, and of a “repledge” by the first “broker” in such a case as the present, where the “broker” first dealt with buys through another who holds for him during the pendency of the “deal,” has been accepted as the vital gist of Markham v. Jaudon wherever that case has been followed.

In Richardson v. Shaw (supra) Mr. Justice Day of the Supreme Court of the United States quotes much that we have repeated from Judge Hunt’s opinion, and adopts the theory outlined by it and approves the statement that we have italicized, that in “holding and carrying” the “stock broker,” in the usual line of his business, is something different from a broker or agent to buy and sell.

Under the accepted doctrine of Markham v. Jaudon concerning a stock bToker’s relations to his customers, therefore, as well as under that held by the Massachusetts courts, it is impossible to say that in some of them arising from dealings like those alleged herein, he is merely “one who is engaged for others in negotiating contracts relative to property with the custody of which he has no concern.” As pledgee (and as repledgor, if he be one) he has an urgent concern with such custody. If the contract between him and his customer be entire and indivisible, then certainly he is not a “broker” under the definition of the ordinance. If there be two contracts between him and his customer implied in the transactions and relations, which contracts may be separated in the eye of the law, why, notwithstanding the ordinance, may not the advances which he has made for his customer, not as “a broker,” but under the new duties, rights and responsibilities, of which the New York Court of Appeals and the U. S. Supreme Court speak, logically be recovered, although his compensation for buying and selling cannot ?

But as we have said, we deem this question academic in the present discussion and therefore do not think it necessary to refer to cases cited by counsel in argument which may seem to answer it in a negative sense. We agree with the contention of the appellant that the contract, if there was one, between Hately and Kiser was single and entire, and involved indivisibly all the relations usually in the course of such business existing between a “stockbroker,” as that term is usually understood, and one who orders stock purchased for his account for speculation, or “to carry;” but we also hold that Hately was not subject to the licensing ordinance in question, and that the contract was not made illegal by his failure to hold a license.

We are thus brought to the contentions of the defendant on the evidence. In the first place, there is a direct contradiction by the defendant of the allegation that the order of purchase was ever given. The defendant repudiates the entire transaction, and for him it is argued that the transaction as alleged by the plaintiff is improbable in itself, and that the testimony of the plaintiff is weakened, not only by this inherent improbability, but by evidence of a faulty memory on collateral matters. Of the question thus involved it is only necessary for us to say that we think, after a study of the record, that it was for the jury to answer. It was one of the credibility of witnesses and of the effect of concurrent facts, and we do not feel that the answer inhering in the verdict of the jury is one which we are justified in setting aside. Peaslee v. Glass, 61 Ill. 94, and cases in this court in which language from that case has been quoted are cited to us, as they often are in support of the position that where plaintiff and defendant directly contradict each other without corroboration on either side on the essential basis of a case, there can be no preponderance of evidence sufficient to justify a verdict for the plaintiff, which should consequently be set aside. Whatever may have been at any time said in opinions of this court applied to the facts of the particular case, it is clear that neither the decision in Peaslee v. Glass, nor even the dictum of the learned judge who wrote the opinion, is ground for the declaration of any such universal rule. We still hold, as Judge McAllister said in Herring v. Poritz, 6 Ill. App. 208: “It will not do to say as a matter of law that there can be no preponderance of the evidence in favor of the party holding the affirmative when there are but two” (opposed) “witnesses upon the facts in issue.”

The defendant, however, maintains that even if the decision of the jury can stand as to his giving of the order to purchase, there is no competent evidence in the record to show that it was carried put, and the jury should have been instructed on this ground to return a verdict for the defendant. Although it is admitted that the plaintiff himself testified that the order was executed in New York, through the agency of Bartlett, Brazier & Carrington, and not denied that the transactions relating to the stock between the plaintiff and Bartlett, Brazier & Carrington took the course that such a purchase would involve, resulting in the payment by the plaintiff to Bartlett, Brazier & Carrington on account of them of the monies for which he has now obtained a judgment against Kiser, yet it is urged that by his own admission this testimony of Hately’s must be hearsay and therefore incompetent, and that it was proven that he never himself had the certificates of the stock in his actual custody, nor ever saw them, and knew the fact that Bartlett, Brazier & Carrington had bought them only by their report to him, which he accepted as correct

The point is not affirmatively made that the transaction between Hately and Bartlett, Brazier & Carrington was a gambling one, or that the trade was, in the language of the Stock Exchanges, “bucket shopped”—that is, that Bartlett, Brazier & Carrington merely made book entries as though they had executed an order as they reported they had done, and by those entries, based on current market prices at the dates of the orders to them to buy and sell, had shown a debit of several thousand dollars to Hately, but it is claimed that it is not admitted that the stock was bought by Bartlett, Frazier & Carrington or otherwise for Hately, and that it rests on him so to prove and that without that proof, evidence that he paid Bartlett, Frazier & Carrington the money he is now seeking to recover from Kiser does not give him a right to judgment against Kiser. This is equivalent to saying, it seems to us, that although the defendant does not charge that the order to Bartlett, Frazier & Carrington was “bucket shopped,” he does not admit that it was not, and it is for the plaintiff to prove that it was not; For, it being admitted that there was competent evidence that Bartlett, Frazier & Carrington reported the making of the purchase to Hately and charged and took from Hately over five thousand dollars on the assumption by him that that report was truthful and that they had in their posssession “carrying” for him the actual certificates of the stock involved from December, 1905, to ¡November 14, 1907, and had then sold them for his account and on his order, there is no theory of the matter possible except that Bartlett, Frazier & Carrington actually carried the stock as reported, or “bucket shopped” the trade. If they did not do one, they must have done the other.

The question in a sense under the evidence in this case becomes one of the burden of proof, or, more accurately, whether the evidence which the plaintiff offered and which was admitted, with all the legitimate and reasonable inferences and intendments which might be drawn from it, made a prima facie case for the proposition that the stock in question, was, as the result of Hately’s action through Bartlett, Frazier & Carrington, brought within the power and control of Hately to deliver to Kiser at all times between December 5, 1905, and ¡November 14/1907, on Kiser’s demand and payment of the amount that would have been due.

If the stock was thus brought into that situation, the order of Kiser as interpreted by the customs and usages of the business as they appear in this record, was carried out, and Hately should not be left without recourse for the money which he advanced. This question cannot, in our view, be considered simply and purely a case of agency and subagency to buy a specific chattel. The peculiar character of the business, so well illustrated by the very theories adopted by the courts as before set out, to justify their views concerning the “holding and carrying,” “the pledge and repledge,” the “'abbreviated” “possession and delivery,” cannot and should not be entirely ignored in dealing with it.

Hnder those usages and customs (which the evidence tended to prove Kiser was familiar with) the suggestion of an estoppel against his denial of such a purchase having been made, is not without force. Hately did not see the certificates of stock that were bought, because he left them in pledge with Bartlett, Frazier & Carrington. Kiser did not see them because he left them in pledge with Hately. Kiser, it is to be presumed, knew of the necessity of Ilately’s buying such stock through others and of the custom and usage of the second pledge, but although (as we must assume the jury found) he was notified by telephone and written notice of the purchase on December 5th, and although he had several conversations with the plaintiff regarding the same and ordered him to sell upon a certain event, he raised no question of the purchase having been actually made nor any suggestion that it would be questioned. It was in consequence, it might be argued, that Hately raised and suspected none when he paid in the usual course of the business, as the agent and on account of his principal, the money which he is now endeavoring to collect from him.

But there are other stronger reasons, to our mind, for the conclusion which we have reached, that in the absence of any evidence to the contrary, offered or suggested by the defendant, the jury were justified in holding that Kiser’s order had been properly executed by Hately through Bartlett, Frazier & Carrington, according to the usages and customs of the business.

Under the statute the following among other interrogatories were addressed to Hately in behalf of the defendant before the trial:

“Eighth. When and by whom was that order executed? Was it given to another firm of brokers to be executed ? If so, to whom, and why did you not make the trade yourself ?
“Ninth. Did you on the 5th day of December, A. D. 1905, or at any time subsequent thereto, and if so, when, receive from anybody a certificate or certificates for two hundred shares of the Preferred stock of the International Mercantile Marine Steamship Company to hold for the said defendant ? If so, from whom ? What did you do with the said stock ? Where was it kept prior to the said 15th day of November, 1907, and what then was done therewith ?”

To these interrogatories the defendant answered by the proper writing filed in the cause:

“The plaintiff ordered Bartlett, Erazier & Carrington to purchase said 200 shares of the preferred capital stock of the International Mercantile Marine Steamship Company, which order was executed and said Bartlett, Frazier & Carrington did on the said 5th day of December, 1905, purchase said shares of stock and hold the same for the plaintiff subject to his order. This transaction took place through Bart-' lett, Frazier & Carrington because that firm had facilities for purchasing said stock in the City of New York.
“The plaintiff did not personally hold in his possession said certificates of shares of stock. From the 5th day of December, 1905, to the 14th day of November, 1907, they were in the possession of said Bartlett, Frazier & Carrington subject to the order of the plaintiff and for his account.”

The Municipal Court Act in providing for these interrogatories also expressly' provides that the party filing such interrogatories shall not he concluded hy the 'answers thereto, “if he shall elect to introduce the same or any or either of them upon the trial or final hearing.”

The eighth interrogatory and answer was not offered hy the defendant, but the last thing he did before resting his case, was to introduce the ninth interrogatory and the answer thereto, as follows:

“The plaintiff did not personally hold in his possession said certificates of shares of stock. From the 5th day of December, 1905, to the 14th day of November, 1907, they were in the possession of said Bartlett, Frazier & Carrington subject to the order of the plaintiff and for his account.”

We are of opinion .that under the customs and usages of the trade and the proper interpretation and construction of the contract made by Kiser with Hately when ordering him to purchase, if the certificates of shares in question were in rhe possession of said Bartlett, Frazier & Carrington “subject to the order of the plaintiff and for his account,” the plaintiff is entitled to recover from Kiser what it cost him to bring about that result on account of Kiser’s order. It made no difference to Kiser whether Hately had bought direct from Bartlett, Frazier & Carrington and “repledged” to them, or had bought through them and “repledged” to them, nor should it prevent his recovery here if it was the former and not the latter course which was adopted, of which, however, there is no evidence or suggestion. The defendant was not “concluded” by the answer to this ninth interrogatory certainly. He might contradict it by evidence offered, but does that mean it is to have no weight when he offers it in evidence (it being at his option to do so or not to do so), and nowhere attempts to contradict it? He cross-examined the plaintiff before offering this answer, and showed.that the plaintiff never saw “the shares that he said he bought for Kiser.” Counsel asked plaintiff: “Then you never had it in your actual personal custody ?” To which the answer was, “Ho, sir. It was carried for me by people who were acting as bankers really for me at that time in that way, just the same as I would carry it in my own bank.” But there was nowhere any attempt or suggestion of an attempt on the part of the defendant to prove that the actual fact was not in accordance with the plaintiff’s statement. We do not think that having himself secured this answer on cross-examination and offered thereafter the answer to the interrogatory alluded to and attempted no contradiction, he can now say that there was no evidence proper to go to the jury to prove the plaintiff’s execution of the defendant’s order. Taken in connection with the other evidence of what was done and said and heard in the offices of Bartlett, Frazier & Carrington and Furness Hately & Co., on the 5th of December, 1905, we think it made sufficient proof in the absence of any contradiction to warrant the jury in finding, if they believed that the order involved was given by Mr. Kiser, that it was executed.

The views that we have set forth necessarily involve the affirmance of the judgment of the Municipal Court.

Affirmed.


text:
    Joseph Jung Brewing Company, Defendant in Error, v. Gustav Grimm, Plaintiff in Error.
    Gen. No. 15,634.
    1. Municipal Court—when stenographic report not stricken. Complete formality is not required of the document signed by a judge; if such document is either “a correct stenographic report” or “a correct statement of the proceedings” it will not be stricken.
    2. Judgments—when affidavit of merits will not prevent default. Unless the affidavit of merits interposed shows a meritorious defense, a default may properly be entered.
    3. Practice—when striking affidavit of merits will not reverse. Even though an affidavit of merits which has been stricken so closely approaches to fulfilling the requirements of the law as to indicate that a failure of justice may have taken place, the Appellate Court will not reverse where -.the defendant has failed to avail himself of an opportunity given to file an amended affidavit.

      Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 29, 1911.
    Benson Landon and Arthur C. Bachrach, for plaintiff in error.
    Frederick H. Wickett, Frederick J. Wegg and Andrew A. Bruce, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this case there was a motion reserved to the hearing to strike from the transcript of the record the document signed hy the trial judge and purporting to he a full and complete transcript of all the proceedings in the cause that do not appear of record. It is entitled “Transcript of Proceedings.” The cause is a fourth class one, and we think though the transcript of proceedings is not entitled as it should he nor certified to he stenographic, it may properly he considered in compliance with the Municipal Court Act and to be a “correct stenographic report.” It is at all events undoubtedly “a correct statement of the proceedings in the case which the plaintiff in error desires to have reviewed.”

The motion to strike it from the transcript is denied.

The error complained of is that a certain affidavit of merits of defense was stricken from the files over the objection of the defendant. It was the third affidavit which had been adjudged insufficient and thus stricken. Leave was granted, on the court’s so striking it, to file another affidavit in three days. This leave was not taken advantage of by the defendant, who contended that the affidavit thus adjudged insufficient was in fact sufficient to specify “the nature of the defense” under section 55 of the Practice Act (if such section is applicable to fourth class cases in the Municipal Court) and under rule 13 a of the Municipal Court Act. As the defendant did not file another affidavit, his default was taken and judgment entered against him for $601.69 and costs.

Although it is only the “striking” of the third and last affidavit of defense filed which is complained of, yet a clearer view of the question involved will he gained by a chronological statement of the preceding papers filed in the case and of their disposition. The plaintiff's original statement of claim filed with his praecipe was simply: “Plaintiff’s claim is for balance due on account,” and the affidavit of claim that followed it repeated the assertion that the claim was for balance due on account and stated its amount to be $602.19.

Upon the appearance of the defendant he moved for a more specific statement of claim. The motion was allowed. The plaintiff then filed an account which comprehended monthly debits and credits for each month from Hay, 1907, to January, 1909. The first three items were:

1907 Dr. Or.

May To merchandise ............... $308.63

To money advanced............ 500.25

By credits .................... $297.51

Following these came items under the dates of June, July, August and September, 1907. In each of these months there was a debit item of “Merchandise” and a credit item, “By credits.” In each case the credit item was considerably larger than the “Merchandise” debit, and at the end of September, 1907, the account would show that an amount had been paid by Grimm equal to the charges for merchandise and $182.17 more to offset against the $500.25 charged as “money advanced” in May, 1907.

In October, 1907, there are again two items of debit:

To merchandise ..................... $218.00

To money advanced................... 500.25

and one of credit:

By credits .......................... $515.97

In ¡November and December, 1907, and January, February and March, 1908, there were in each month one debit, “To merchandise,” and one credit, “By credits,” In each case the credit was the larger item, and at the end of March, 1908, although the debit account included the two items of “money advanced” ($500.25 each, one in May and one in October, 1907), there was only a debit belance outstanding of $242.56, showing that of the $1,000.50 charged as money advanced $757.94 at least had been repaid. In April, 1908, there were again two debit items, one for merchandise and one of $500.25 for “money advanced.”

In each month from May, 1908, to September, 1908, there was a debit item for merchandise and a larger item, “By credits,” and at the end of September, 1908, the entire debit balance shown by the account is $242.13.

In October, 1908, there are again two items, one for merchandise of $214, and one for “Money advanced,” the money item being again $500.25. The “Credits” item for the month was $265. In November and December, 1908, there are debit items “To merchandise,” and slightly larger “Credits” items. The January, 1909, items, which close the account, are:

Dr. Or.

To merchandise....................... $16.00

By credits........................... $40.00

The sum totals of debits during the entire time from May, 1907, to January, 1909, is $7,270.63, and the credits $6,-668.94, making á difference (including the item of $500.25 for money advanced) of $601.69.

After the coming in of this bill of particulars the defendant on February 15, 1909, filed the first affidavit of defense, as follows:

“That he has paid to the plaintiff all of the items set forth in the bill of particulars except $101.44 and the item under date of October, 1908, 'to money advanced $500.25 that as to the whole of said item he has a defense upon the merits; that deducting said item there was due from him to the plaintiff at the time of the bringing of this suit the sum of $101.44, which sum this defendant now offers to pay.”

The 55th section of the Practice Act as revised in 1907 and a rule of the Municipal Court in force in 1909 provided that in cases where an affidavit had been filed by the plaintiff showing the nature of his demand and the amount due him, he would be entitled to a default judgment unless the defendant filed an affidavit that he verily believed that he had “a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense, and if a portion specifying the amount according to the best of his judgment and belief.”

The Municipal Court evidently held, and we think correctly, that as the nature of the defense must be specified, the affidavit would not be sufficient to prevent a default unless it showed a meritorious defense. Cavanaugh v. Witte Gas Co., 123 Ill. App. 571. We do not think that there is any real difference between the contentions of the plaintiff and of the defendant in this regard.

The affidavit, says the plaintiff in his argument, must show “a defense which if true would be good in law and which if set forth in the form of a plea would be good as against a general demurrer.”

The defendant admits in his argument that the affidavit of merits must contain “an informal intelligent statement of facts indicating to the court a meritorious defense,”, or as he puts it in another place, “An ‘informal, intelligent statement of some facts which if true would prevent a recovery.”

There is nothing of that sort in the affidavit which was filed on February 15, 1909, and it was on motion of the plaintiff on March 31, 1909, stricken from the files. Defendant was given one day by the same order to file an amended affidavit of merits. April 1, 1909, the defendant filed an affidavit “that as to the item in the plaintiff’s account under date of October, 1908, ‘To money advanced $500.25,’ the plaintiff did not advance the said sum of money to or for this defendant, but did advance the said sum of money in payment for the City Saloon License under an arrangement whereby the said plaintiff was to pay the license of the said defendant if the said defendant would continue to buy the beer of the said plaintiff, and the said defendant did thereafter continue to buy the beer of said plaintiff in accordance, with said agreement so long as said plaintiff kept its agreement.”

This affidavit was also on motion of plaintiff stricken from the files April 3, 1909, and defendant again given leave to file an amended affidavit within three days. The reason is apparent. It was held by the court that “It was not an intelligent statement of facts which if true would prevent a recovery.” In our opinion, however, it came more nearly to being such a statement than the subsequent one did, because it stated, among other things, that the plaintiff “did not advance the said sum of money to or for this defendant.” But viewed in connection with the bill of particulars or amended statement of claim, to which it refers and must be referred, and the evident advance and repayment each six months of the same amount of $500.25 between May, 1907, and January, 1908, the court evidently found the use of the word “advance” ambiguous, and the defendant’s statement that plaintiff “advanced” the said sum in payment of the City Saloon License not to negative the obligation of the defendant to repay it, especially as the concluding clause of the affidavit, to the effect that the said defendant “did thereafter continue to buy the beer of said plaintiff in accordance with said agreement so long as said plaintiff kept its agreement,” seems to refer to previous “advances” by the plaintiff, which the defendant had impliedly admitted in his first affidavit of defense (as he did expressly afterwards in the third one) to be “just” charges.

On April 7, 1909, the defendant filed his third affidavit of merits, the striking of which from the files on April 10, 1909, the defendant is complaining of herein. That affidavit, after stating that the defendant verily believes that he has a good defense on the merits to a portion of the plaintiff’s demand, proceeds:

“Affiant further says that the defense of the defendant to said portion is as follows:
That the item of October, 1908, amounting to $500,25, referred, to in plaintiff’s statement of claim, was paid by the plaintiff to the City for a City Saloon License as the consideration of the promise of the defendant to the plaintiff to continue to buy the beer of the plaintiff; that the defendant did thereafter continue to buy the beer of the plaintiff in accordance with said promise until to-wit, January 1909, on which last said date the plaintiff demanded of the defendant said amount so paid. The defendant admits that the balance of the plaintiff’s claim, $101.44, is just and is due the plaintiff, which last sum this defendant now offers to pay. On last mentioned date the plaintiff refused to sell the defendant any more beer unless said item of $500.25 was paid and until said item was paid to the plaintiff.”

Counsel for plaintiff in error say in their argument:

“The plain meaning of the third affidavit is this: In consideration of the plaintiff in error promising to continue to buy his beer from the defendant in error instead of the latter’s competitors, the defendant in error would give to the former the sum of $500.25, not merely as an advancement or a loan, but absolutely and with the intention to pass title.to the said sum of $500.25 forever and with the full knowledge and understanding that said sum was never to be repaid, and instead of giving said sum to the plaintiff in error in person, the defendant in error was to give it to the City for the benefit of the plaintiff in error to pay for his saloon license.”

If this had been the plain meaning of the affidavit, to strike it from the files would have been an abuse of discretion on the part of the trial judge, and although it was a matter of practice in the Municipal Court, and the defendant refused to avail himself of the leave given to him to file another amended affidavit in three days, we might have deemed it such an error as needed relief to prevent “a failure of justice.” But we do not think that considered in connection with what had gone before in the case this was the plain meaning of the affidavit. It seems to us, in that view, somewhat ambiguous and evasive. There is great force in the question put by defendant in error’s counsel in his argument: If the affiant meant the affidavit to have the meaning which his counsel now puts on it, why did he not put it in the unmistakable words he now employs, especially when he was given three days to do it after this affidavit was adjudged insufficient ?

We do not think it is necessary to interfere with this ruling of the Municipal Court “to prevent a failure of justice,” nor are we “satisfied the judgment resulted from substantial errors” of the Municipal Court. It is therefore affirmed.

Affirmed.


text:
    Fannie Kelly et al., Plaintiffs in Error, v. Richard L. Williams, Defendant in Error.
    Gen. No. 15,608.
    1. Evidence—when opinion evidence incompetent. Opinions of witnesses as to whether a particular business as conducted was unlawful, is incompetent.
    2. Landlord and tenant—when lease void. Knowingly leasing premises for an unlawful and illegal purpose makes the contract void and there can be no recovery; but the unlawful and illegal purpose must be participated in by both parties to the transaction.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 29, 1911.
    Two rehearings denied July 10, 1911.
    Alder, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    Benjamin Samuels, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by the plaintiffs, here the plaintiffs in error, against the defendant to recover $800 rent on a lease of certain premises in Cincinnati, Ohio. The cause was submitted to the court, without a jury. The court found for the defendant and entered judgment accordingly.

The plaintiffs executed a lease to the defendant of the premises in question for a period of five years at a monthly rental of $200. Ho mention was made in the lease for what purpose the premises were to be used. The defendant took possession and used the first floor of the premises for a museum of anatomy, the second floor for doctors’ offices and the third floor for storage purposes. The city authorities objected to some of the exhibits in the museum and the manner of conducting the same, on the ground the same were in violation of the statute of Ohio in part as follows: “It shall be unlawful for any person or persons to give any public or private exhibition of a lascivious, indecent, immoral or impure nature or any exhibition tending to corrupt morals,” etc. The penalty for a violation of said statute was for the first offense a fine and a second offense a fine and imprisonment. The defendant was advised by the city authorities they had no objection to the museum if properly conducted and if he would change it he could continue its operation, but same was not done to the satisfaction of said officers and the museum was closed.

The defendant now seeks to avoid the payment of the rent on the ground the business there conducted was unlawful, and the plaintiffs entered into the lease with knowledge of the unlawful nature of the said business. On the trial of these issues much testimony was introduced by the defendant that was hearsay; and opinions of witnesses that the said business was unlawful,—testimony clearly incompetent. However the case was tried by the court, and we shall not consider any of this improper testimony. The testimony introduced might be held sufficient proof that the exhibition was indecent; that it was impure, immoral or lascivious, such as tended to corrupt morals, might be considered, if a true meaning of the said words are understood, questionable under the legal evidence before us. We shall, however, for the purpose of this opinion, assume that the defendant was successful in proving that he violated the Ohio statute in conducting the said museum.

The remaining question is whether the plaintiffs knowingly leased the said premises to the defendant for the purpose of conducting a business in violation of the said statute. Knowingly leasing premises for an unlawful and illegal purpose makes the contract void and there can be no recovery. Ralston v. Boady, 20 Ga. 449; Updike v. Campbell, 4 E. D. Smith (N. Y.) 57-0; Dougherty v. Seymour, 16 Colo. 289, and authorities there cited.

The testimony showed that Frederick A. Schmidt, a real estate agent, was the authorized agent of all the plaintiffs and had full power and authority to lease the said premises and collect the rents therefor; that the defendant personally and by his agents negotiated the lease for a museum and doctors’ offices with Mr. Schmidt. The defendant testified that during these negotiations he had a conversation with Mr. O’FTeill, one of the plaintiffs, and told Mr. O’Feill that the business was showing venereal diseases of men and reproductions of exact copies from photographs, that he didn’t advertise in the newspapers and allowed no boys under twenty-one years of age to come in, and that the business was legitimate and lawful; that O’F'eill said he had seen that on State street in Chicago and asked if it would be anything like he saw, and I said almost identical. Subsequent to this conversation the negotiations were continued with Schmidt and the lease executed by all the parties. The defendant in a sworn statement, in answer to an interrogatory filed by the plaintiffs before the trial under the rules of the Municipal Court, stated: “All negotiations were carried on with Frederick A. Schmidt as agent for the plaintiffs, and no negotiations were had with the plaintiffs themselves.” There is no evidence that Schmidt had any knowledge that the business or the manner of the defendant in conducting the same was of a character that was unlawful. In fact the defendant testified that at the time he rented the place of Mr. Schmidt he intended to conduct a legitimate and lawful business, and Mr. Schmidt intended to rent it for a legitimate and lawful business. Some testimony was also introduced of conversations with a clerk in Mr. Schmidt’s office, but there is no showing that would make such conversations, if of any importance, binding upon the plaintiffs.

Whether under such circumstances such knowledge on the part of Mr. O’isTeill should be held knowledge on the part of all the plaintiffs, we shall not attempt to determine.

In Pixley v. Boynton, 79 Ill. 351, the court said: “The intention of the parties gives character to the transaction, and if either party contracted in good faith, he is entitled to the benefit of his contract, no matter what may have been the secret purpose or intention of the other party.”

In Ryan v. Potwin, 60 Ill. App. 637, the court said: “To make the lease void because of the illegal purpose for which the premises were intended, such a purpose must have been mutual between the parties.”

These authorities are cited because it is clear from the evidence that there was no intention on the part of the plaintiffs to lease said premises for an unlawful purpose—and perhaps none on the part of the defendant, for he seemed of the opinion on the trial, notwithstanding his defense in this suit and the opinion of the officers of Cincinnati, that his said business was lawful, even in Ohio. The trial court expressly found: “The court finds that the defendant still claims that the business conducted by him on said premises was lawful.”

The question therefore resolves itself into one of whether the plaintiffs had such knowledge of the business and the manner of conducting'the same by the defendant that they were bound to know as a matter of law that the same was unlawful and illegal. The only testimony in the record that can be construed as tending to show the plaintiffs made said lease for said unlawful purpose is the testimony of the defendant giving his conversation with Mr. O’üSTeill hereinbefore set forth. While it was conceded on the trial that the said business was the same as that conducted on State street in Chicago and elsewhere, there is no testimony that Mr. O’Neill had any knowledge that the manner of conducting the said business as intended by the defendant was unlawful.

We apprehend that it will be conceded that the leasing of premises for a museum of anatomy and doctors’ offices is lawful. The trial court on the evidence in this case found: “The court finds nothing in the evidence to show that medical offices and museums could not be conducted in such a manner as not to be indecent or lascivious.”

In Fox v. Rogers, 171 Mass. 546, the court said: “There is no policy of the law against the plaintiff’s recovery unless his contract was illegal, and a contract is not necessarily illegal because it is carried out in an illegal way.” To the same effect is Commagere v. Brown, 27 La. An. Rep. 314. In Waugh v. Morris, 8 L. R. Q. B. 202, the court said, p. 207: “We agree that a contract, lawful in itself, is illegal if it be entered into with the object that the law shall be violated.”

As already observed, it appears that the plaintiffs entered into said lease with no intention of violating the law. The trial court, at the request of the plaintiffs, held as findings of fact: “The court finds from the evidence that at the time of executing said lease plaintiffs and their agents did not know that the business which the defendant contemplated conducting on said premises was indecent or immoral.” The court also held, for some reason not obvious, at the request of the defendant, a contrary finding; but we think the evidence. supported the finding in favor of the plaintiffs, and it seems to us, under the evidence in this record, that the plaintiffs were not bound to know as a matter of law that the said business and the manner the same was to be conducted by the defendant were unlawful and illegal.

We shall not consider the set-off filed by the defendant, for the reason that there was no evidence introduced in support thereof..

The judgment is reversed and the cause remanded.

Reversed and remanded.