author: Mr. Justice Thomson

text:
    Helen Morrow, Appellee, v. Blair McSteele, Appellant.
    Gen. No. 23,588.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Helen Morrow, plaintiff, against Blair' McSteele, defendant, to recover on a judgment note.
    Plaintiff recovered a judgment by confession in the trial court ag’ainst the defendant and two others on the note, all three being- the makers of the note. Later, the court granted the defendant leave to appear and plead to the merits, and entered an order that the judgment was to stand as security. The defendant filed a plea of the general issue and two special pleas, one setting forth want of consideration, and the other, failure of consideration. With the pleadings in this condition, on motion duly made by the plaintiff, the case was placed on the short-cause calendar. Thereafter defendant moved to strike the case from the short-cause calendar on the ground that it was not at issue when it was placed thereon, and was still not at issue at the time the motion was made. This motion was denied. Two days thereafter, the plaintiff, filed a document, which he termed a similiter, which contained a paragraph which was a similiter to the plea of the general issue which the defendant had filed. Other paragraphs followed in which the plaintiff traversed all the material allegations of the two special pleas, the paragraphs in question not being directed to the two special pleas as such, but to the various paragraphs that made up the two pleas. These paragraphs or replications concluded as follows: “Wherefore plaintiff avers that she should not be barred from maintaining her aforesaid action because of any matters or things herein-above pleaded by the said defendant, or any of his servants or agents. Wherefore plaintiff asks judgment.”
    The day following the filing of this document, the case was reached for trial on the short-cause calendar. The defendant again moved to strike the case from that calendar, which motion was denied. Thereupon, the defendant interposed a demurrer to the replications as filed by the plaintiff, excepting the first paragraph which was in the form of a similiter to the plea of the general issue. The demurrer set up a number of special grounds relied upon, to the general effect that the replications did not answer the special pleas, but were directed to various paragraphs making up the pleas and also that they failed to show what, if any, consideration had passed from the plaintiff for the note in question, and further that the replications did not conclude with a verification or to the country. The court overruled the demurrer. Thereupon counsel for the defendant further objected to the hearing of the case on the short-cause calendar for the reason that it was not at issue at the time it was placed upon that calendar, and on the further ground that it was not yet at issue, and again moved the court to strike the case from the short-cause calendar, which motion was overruled. A jury was then impaneled and the plaintiff presented her evidence, the defendant taking no part in the trial. At the conclusion of the plaintiff’s evidence, the court directed the jury to find the issues for the plaintiff and assess her damages in the sum of $1,218. It appeared that the judgment as originally entered had been for a larger amount, being based upon an erroneous computation of the interest, whereupon the court entered an order to the effect that the judgment entered by confession was to stand, modified in amount, so as to make it a judgment for $1,218. From this judgment, the defendant appeals.
    Abstract of the Decision.
    1. Appeai and error, § 1697

       — when error in placing case on short-cause calendar is not waived. Under the rule of the Circuit Court that no case shall be noticed for trial on the short-cause calendar until it is at issue, a case cannot be placed on that calendar until an issue of fact has been formed on each of the pleas filed, and where, after a judgment by confession on a note has been reopened and defendant has filed a plea of the general issue and special pleas setting up want of consideration and failure of consideration, error in placing the ease on the short-cause calendar over defendant’s objection with the pleadings in that condition and in refusing to strike it therefrom on defendant’s motion is not cured by the fact that replications were filed by the plaintiff the day before the cause was reached for trial on the short-cause calendar, and defendant’s objections are not waived, where, after again moving to strike the cause from the short-cause calendar when it was reached, he took no part in the trial.
    Charles Arnd and Frederick Arnd, for appellant.
    No appearance for appellee.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

2. Bills and notes, § 364 — when replications setting up want and failure of consideration are not demurrable. In an action to recover on a promissory note, replications to special pleas setting up want of consideration and failure of consideration are not demurrable where, though loosely drawn and addressed to the various paragraphs of which the pleas are composed instead of to the pleas as such, they set forth that a valuable consideration for the note passed from plaintiff and in due course.

3. Pleading, § 130* — when conclusion of replication is sufficient. It is sufficient if the conclusion of a replication is, in substance, to the country, even though it does not so conclude in terms.


source: Caselaw Access Project

license: Public Domain

text:
    Consolidated Water Power & Paper Company, Appellant, v. The Louisville Herald Company, Appellee.
    Gen. No. 23,697.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Oertiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Consolidated Water Power & Paper Company, a corporation, plaintiff, against The Louisville Herald Company, a corporation, defendant, to recover a balance alleged to be due under an agreement for the sale of paper.
    The defendant filed an affidavit of merits, denying that there was any balance due beyond the sum of $1,830.86, which amount, it said, it stood ready to pay. The trial court entered an order that the plaintiff' recover from the defendant $1,830.86, the amount admitted by the latter to be due, and by the same order the court reserved for future determination the question of the further claims of the plaintiff which were denied by the defendant. The amount so awarded was paid by the defendant and the order satisfied in that regard. The defendant then filed a counterclaim alleging the existence of a written contract between the parties and a breach thereof by plaintiff, whereby the defendant had suffered damages as alleged. To this statement of counterclaim, the plaintiff filed an affidavit of merits, contending that it had not committed any breach of the contract.
    Abstract of the Decision.
    1. Sales, § 65

       — how contract construed as to minimum amount buyer required to buy during specified period. Where a contract for the purchase of goods provides that the seller agrees to sell and the huyer to buy during a period of eleven months a specified number of tons of the goods “with a leeway of five per cent, over or under in quantity per year,” the latter provision is to be construed as fixing the minimum amount which the seller can compel the buyer to take and the maximum amount which the buyer can compel the seller to deliver, and the amount so fixed is not controlled by the fact that such provision is followed by a further provision that the goods are for the buyer’s use, in a paper published by it and for its continuous use during the eleven months.
    A trial of these issues being had before the court without a jury, the court found the issues for the defendant, both on the claim made by the plaintiff and the counterclaim made by the defendant, and entered judgment against the plaintiff for $5,656.29, being the • damages alleged by it in its counterclaim. From this judgment, the plaintiff appeals.
    Gregory, Burges & McNab and Goggins, Brazeau & Goggins, for appellant.
    Landon & Holt, for appellee.

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

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

2. Contracts, § 187 — when interpretation by acts of parties not controlling. The rule that the courts will look to the acts of the parties indicating their interpretation of the contract, where its terms are ambiguous, will not be permitted to prevent the enforcement of the legal effect of a contract which is unambiguous in language and meaning.

3. Saues, § 64* — when not shown that purchaser construed contract as only requiring seller to furnish goods sufficient for requirements of buyer’s business. The conduct of a purchaser of goods under a contract which provides that the seller will furnish him a certain amount of goods for a specified purpose during the life of the contract, in seeking to procure from the seller additional goods for its use, held not to show that the purchaser construed the contract as requiring the seller to furnish him only such amount as the purchaser’s business required, rather than as calling for the furnishing of a specified amount.

4. Sams, § 64* — when contract for paper not construed as requirement contract for amount needed by purchaser. A contract between the manufacturer of paper and a purchaser whereby the manufacturer agreed to sell and the purchaser to buy and receive for its use in the publication of a paper published by it and for its continuous use during eleven months, from one specified date to another, a certain number of tons of paper, “with a leeway of five per cent, over or under in quantity per year,” shipments to be at the rate of a specified number of tons per month, held not to be a requirement contract binding the manufacturer to supply so much only as was needed by the purchaser, but to bind him to deliver and the purchaser to take the number of tons stipulated in the contract.

5. Customs and usages, § 15* — when custom cannot control terms of contract. Where the terms of a contract are unambiguous they control, notwithstanding there is a difference between them and a custom shown to obtain in the business as to which the contract was made.

6. Sams, § 373* — when waiver of provision of contract as to amount of goods to be supplied not shown. In an action to recover under a contract to supply a certain quantity of goods, evidence held insufficient to show a waiver of the provision as to the quantity to be supplied.

7. Sams, § 17* — lach of consideration for agreement to pay price for goods in excess of contract price. The agreement by the purchaser of goods that it will pay for such goods at a price in excess of that fixed in the contract under which the goods were sold, held to be void and unenforceable as based on no consideration.

8. Sales, § 381 — what are rights of vendee upon refusal of vendor to perform contract. Where the vendor refuses to perform his contract, the vendee may recover his damages without having actually purchased the goods elsewhere.

9. Sales, § 376* — what is measure of recovery by buyer upon refusal of seller to supply goods. The difference between the contract price and the price at which the vendor of goods was willing to supply the goods to the vendee after the vendor’s breach of the contract is the measure of the vendee’s recovery, even though a higher price was asked by others than the vendor.


text:
    Consolidated Water Power & Paper Company, Appellant, v. Denver Publishing Company, Appellee.
    Gen. No. 23,698.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Consolidated Water Power & Paper Company, a corporation, plaintiff, against Denver Publishing Company, a corporation, defendant. From a judgment for defendant, plaintiff appeals. The issues involved herein being the same, the decision in this case is controlled by that in Consolidated Water Power & Paper Co. v. Louisville Herald Co., ante, p. 569.
    Gregory, Burges & McNab and Goggins, Brazeau & Goggins, for appellant.
    Landon & Holt, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Thomas P. Evans, Appellee, v. Henry F. Schwartz, sued as H. P. Schwartz, Appellant.
    Gen. No. 23,804.
    1. Municipal Court of Chicago, § 13

       — when statement of claim for rent is sufficient. A statement of claim in the Municipal Court of Chicago which recites that the claim is for rent and specifies the months for which the rent is claimed and the amount claimed is sufficient.
    2. Landlord and tenant, § 437* — what are rights of landlord against tenant holding over after expiration of term. Where a tenant remains in possession after the expiration of the term set forth in his written lease without any new contract with the landlord, the latter may treat him either as a trespasser or as a tenant.
    3. Landlord and tenant, § 88* — what constitutes election to treat tenant holding over as tenant for another year. By accepting the payment by a tenant under a lease for a year, of rent for several months after the expiration of his written lease at the rate provided in such lease, the landlord elects to treat him as a tenant and the tenant becomes such for another year upon the same terms and for the same rent as were specified in the written lease, whether the lease provided for an annual rental payable in monthly instalments or for a year’s occupancy at a stipulated monthly rental, and whether it was for a year or for a year and a fraction thereof.
    4. Frauds, Statute of, § 93* — when tenant is estopped to set up. It is not necessary that a lease be signed by both landlord and tenant in order to comply with the Statute of Frauds, but the tenant’s signature alone is sufficient, and where he has signed, taken possession and paid rent to the landlord, he is estopped to set up the Statute of Frauds.
    5. Landlord and tenant, § 330a* — when exclusion of evidence of tenant giving notice of intention to vacate is immaterial. In an action for rent against a tenant holding over after the termination of his term under a written lease, the exclusion of evidence of his having given notice, before the expiration of the original term, of his intention to vacate, held not ground for reversal.
    6. Witnesses, § 224* — when exclusion of questions on cross-examination of landlord as to efforts to re-rent vacated premises is proper. In an action for rent, wjiere neither the statement of claim nor the affidavit of merits makes any reference to plaintiff’s efforts to re-rent the premises after defendant had vacated them before his term expired, it is not error to exclude questions in regard thereto on the cross-examination of plaintiff, where the only question on his direct examination which had any bearing thereon was whether the premises had remained vacant after defendant had abandoned them and whether he received any income therefrom for the period for which he was suing to recover rent.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Jesse Wilcox, for appellant.
    Aaron E. Eppstein, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago, against the defendant, for $150 based upon a directed verdict for that amount. The plaintiff’s amended statement of claim was as follows: “Plaintiff’s claim is for rent of premises known and described as flat number three, third floor, of the building known as 524 East 61st street, Chicago, Illinois, being instalments of rent due on the first days of June, July, August, September, October and November, 1913, at twenty-five dollars per month, one hundred and fifty dollars.” The defendant contends that this statement is insufficient, and that the court, therefore, erred in overruling his motion in arrest of judgment. Section 40 of the Municipal Court Act (J. & A. 3352) merely requires “a statement of the plaintiff’s claim, which statement, if the suit be upon a contract, express or implied, shall consist of a statement of the account, or of the nature of the demand * * As the statement of claim here involved recited that plaintiff’s claim was for rent, and specified the months for which the rent was claimed, and the amount claimed, it was sufficient. The statute referred to does not require that the statement of claim in a case of the fourth class in the Municipal Court shall set forth a cause of action with the particularity required by a common-law pleading, but merely a statement of the account or nature of the demand sued on. Enberg v. City of Chicago, 271 Ill. 404, 409; Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20; Kappes v. Bacon, 209 Ill. App. 290.

The premises involved in the lease which is here in controversy consisted of an apartment. The lease introduced in evidence was signed by the defendant lessee only, under date of November 5,1911, and leased the premises in question “from the fifth day of November A. D. 1911, until the thirtieth day of November, A. D, 1912.” By the terms of the lease, defendant agreed “to pay as rent for said demised premises, the sum of twenty-five dollars, payable in monthly instalments of twenty-five dollars each, in advance, upon the first day of each and every month of said term.” All of this clause was printed except the words “twenty-five,” occurring twice, which were in writing. The defendant occupied the premises for the full term, paying the stipulated rent each month, and without any further arrangement, held over beyond the term and until the latter part of May, 1913, when some dispute arose about the making of repairs, and the defendant vacated the premises. He paid the plaintiff $25 each month after November 30, 1912, up to and including the month of May. The plaintiff’s suit is based on the theory that, by holding over, the defendant became a tenant from year to year, and, therefore, was hable for the rent at the rate specified in the lease, up to and including the month of November, 1913. The authorities in this State support that contention. The defendant having remained in possession after the expiration of the term, as set forth in the written lease, without any new contract with the plaintiff, it was optional with the latter to treat him as a trespasser or as a tenant, and by accepting the payment of the rent for the several months succeeding the expiration of the written lease, the plaintiff made his election, and the defendant became a tenant of the premises for another year, upon the same terms, and subject to the same rent as specified in the original lease. McKinney v. Peck, 28 Ill. 174; Goldsborough v. Gable, 140 Ill. 269; Weber v. Powers, 213 Ill. 370, 383; Standard Brewery v. Creedon, 283 Ill. 474; Hately v. Myers, 96 Ill. App. 217; Bills v. Cooling, 187 Ill. App. 642.

In these cases, the rule as stated has been applied where the original written lease reserved an annual rental, payable in monthly instalments. In the following cases, the same rule has been applied where the original lease did not reserve an annual rental, but where the premises were leased for one or more years at a stipulated monthly rental. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Wolz v. Sanford, 10 Ill. App. 136, 139; Quinlan v. Bonte, 25 Ill. App. 240; Rand v. Purcell, 58 Ill. App. 228; Directors Chicago Theological Seminary v. Chicago Veneer Co., 94 Ill. App. 492; Kelly v. Armstrong, 139 Ill. App. 467.

The defendant urges that this rule never has been and should not be extended to the case of a lease for an odd period of time, such as a year and a fraction. It has been so applied, however, in a case where the original lease was for a period of two years and eleven months, at a monthly rental of $135. Besley v. Ridgely, 195 Ill. App. 435. There would seem to be no reason why the rule, as our courts have thus applied it, should not prevail under such facts as are involved in the case at bar.

The defendant urges that the lease is void under the Statute of Frauds, and that, where a tenant occupies premises and pays rent under a lease void under the Statute of Frauds, he is a tenant from month to month. Our courts have frequently held that it is not necessary that a lease be signed by both landlord and tenant in order to comply with the Statute of Frauds, but that a tenant’s signature is sufficient to enable the landlord to hold him to the terms of the lease. In such a situation, the lessee, having signed the lease and taken possession of the premises under it, and paid rent to the landlord, is estopped to urge that it is within the Statute of Frauds, by reason of not having been signed by the lessor, or by some one on his behalf, with proper authority. McCormick v. Loomis, 165 Ill. App. 214; Bowman v. Powell, 127 Ill. App. 114; Cook v. Curry, 192 Ill. App. 182.

The defendant further urges that the court erred in excluding certain evidence as to the giving of notice that he would vacate. The defendant having become a tenant for another year, this point becomes immaterial, as, at most, the alleged notice could only have served to terminate the defendant’s tenancy at the end of that year, and no effort is being made in this case to collect rent beyond that period.

It is further contended that the court erred in sustaining objections to questions asked by defendant’s counsel of the plaintiff on cross-examination as to what efforts the plaintiff had made to re-rent the premises after the defendant’s removal. These rulings were correct, as the questions asked were not proper cross-examination. On direct examination, there had been no inquiry of the plaintiff as to his efforts to secure a new tenant. He had been asked whether the premises remained vacant after the defendant abandoned them and whether he had received any income from the premises for the period for which he was suing. This was an entirely different question and had nothing to do with the matter of whether or not he had made any effort or had exercised due diligence to get another tenant. That question was in no way involved in the issues presented, for no reference was made to it, either in the statement of claim or the affidavit of merits.

Finding no error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Edward Lyman Bill, Inc., Publishers of the Music Trade Review, Appellee, v. Charles H. Leech, Appellant.
    Gen. No. 23,824.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 516

       — when contract with corporation is shown. In an action to recover on a contract, evidence held sufficient to support a finding that the contract was entered into with plaintiff, a corporation, and not with an individual having the same name as the corporation.
    2. Corporations, § 769a* — when defendant must show that plaintiff is not authorised to do business in State. Where defendant, in an action by a corporation, sets up that plaintiff is not a corporation authorized to do business in the State, the burden of establishing this defense is on defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in 'the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Edward Lyman Bill, Inc., Publishers of the Music Trade Review, plaintiff, against Charles H. Leech, defendant, to recover under a contract for advertising. From a judgment for plaintiff for $262.08, defendant appeals.
    Samuel B. Hill, for appellant.
    Culver, Andrews, King & Stitt, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Laurence M. Fine, Appellant, v. Louis Fox and Leo Fox, Appellees.
    Gen. No. 23,849.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Tboveb and conversion, § 39

       — when verdict for defendant is proper. In an action for the conversion of personalty, evidence held sufficient to support a verdict for defendant.
    2. Dismissal, nonsuit and discontinuance, § 15* — when request for nonsuit comes too late. A request for a nonsuit made after the court has stated, in substance, what its finding will be and after it has commenced its formal announcement of its finding, comes too late.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Laurence M. Fine, plaintiff, against Louis Fox and Leo Fox, defendants, for the conversion of property. From a judgment for defendants, plaintiff appeals.
    Edward Drobnis, for appellant.
    No appearance for appellees.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Rafael Palas, Appellee, v. Harvey Room Company. Appellant.
    Gen. No. 23,869.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Innkeepebs, § 7

       — when liable for loss of money deposited with cleric by guest. Where the guest of an innkeeper deposits money with the latter’s clerk for safe-keeping and the clerk absconds with it, the innkeeper will be liable.
    2. Innkeepebs — right by notice to require conformance by guests with rules. An innkeeper may by notice require his guests to conform to reasonable rules.
    3. Innkeepebs — when no right to limit liability to guests by posted notice. Except as provided by the statute (J. & A. If 6193), an innkeeper may not limit his legal liability to his guests by posting a notice.
    4. Innkeepers, § 7* — right of guest to assume that cleric is

      proper person with whom, to leave money. An innkeeper’s guest has the right to assume that the innkeeper’s clerk, who has charge of the office, is one with whom he may properly leave money up to a reasonable amount for safe-keeping.

      Appeal from the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action Toy Rafael Palas, plaintiff, against Harvey Room Company, a corporation, defendant, to recover for the loss of money intrusted to defendant’s clerk for safe-keeping while plaintiff was a guest in defendant’s hotel. From a judgment for plaintiff for $140, defendant appeals.
    Glenn P. Sayers, for appellant.
    George W. Cullen, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

5. Innkeepers — what is essential to limitation of liability for guest’s money deposited with clerh by posted notice. To limit an innkeeper’s liability for a guest’s money, intrusted to the innkeeper’s clerk, by posting a notice, it is necessary that the notice shall have been clear and explicit and that the innkeeper show that knowledge of the notice was brought home to the guest, and the mere posting on the hotel wall of r. sign reading, “Not responsible for valuables or money lost or stolen in its premises beyond the value of $5.00,” without any showing that it was brought to the guest’s knowledge, is not sufficient to relieve the innkeeper from liability for a sum of money in excess of that amount intrusted by a guest to the clerk and stolen by him.


text:
    Walter J. Ellis, Appellee, v. Hillison & Etten Company, Appellant.
    Gen. No. 23,881.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Walter J. Ellis, plaintiff, against Hillison & Etten Company, a corporation, defendant, to recover on a contract. From a judgment for plaintiff for $106, defendant appeals.
    William A. Barnes, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Sales — when binding sale is made by counter offer and compliance with terms of latter. Where one to whom a process is offered for sale makes a counter offer to purchase it at a certain sum if a demonstration is made at a certain time and the process is as claimed by the original offerer, the counter offer' ripens into a binding obligation when the original offerer makes the demonstration and the process proves to be as claimed.
    2. Sales, § 329

       — when satisfactory demonstration of process by seller is shown. In an action to recover on a contract for the sale of a process in case the demonstration thereof is satisfactory, evidence held to support a finding that the seller had given a satisfactory demonstration of such process.
    3. Corporations, § 355* — when employee has authority to purchase process on behalf of corporation. Where it appears that one seeking to sell a process to a corporation spoke to the president in regard thereto and was told by him to see a certain employee about it, such employee is thereby clothed with authority to act on behalf of the corporation in regard to the transaction.
    4. Municipal Court oe Chicago, § 13* — when statement of claim in action to recover on contract of sale is sufficient. Under section 40 of the Municipal Court Act (J. & A. If 3352), in an action to recover on a contract by which defendant agreed to purchase a certain process if a satisfactory demonstration of it was given, a statement of claim which sets forth a copy of the contract and a statement to the effect that after the contract was signed plaintiff demonstrated the method and was told by defendant that it was satisfactory, is sufficient, even though it lacks the particularity of a common-law pleading.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, samo topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Edson R. Gilbert and William H. Dunn, Appellants, v. Robert M. Sweitzer et al., Appellees.
    Gen. No. 23,630.
    (Not to be reported in full.)
    Abstract of the Decision.
    Courts, § 138

       — when order of affirmance not vacated for purpose of transfer to Supreme Court. Where a case involving constitutional questions as well as questions upon the merits is appealed to the Appellate Court which renders a judgment of affirmance, the appellants will be held to have waived the constitutional questions and will not thereafter be granted an order vacating the order of affirmance and transferring the cause to the Supreme Court on the ground that the appeal was taken to the wrong tribunal, especially where the appellees’ brief called their attention to the fact that the Appellate Court could not entertain the constitutional questions.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gbikley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Petition denied.
    Opinion filed July 11, 1918.
    Statement of the Case.
    Petition by Edson R. Gilbert and William H. Dunn, appellants, against Robert M. Sweitzer and others, appellees, to vacate an order of affirmance by the Appellate Court and to transfer the cause to the Supreme Court.
    Charles S. McNett, for appellants.
    Maclay Hoyne, for appellees.

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

   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Dever

text:
    Charles E. Harding, Defendant in Error, v. A. T. A. Filler, Plaintiff in Error.
    Gen. No. 23,934.
    (Not to be reported in full.)
    Abstract of the Decision.
    1, Account, § 35

       — when finding in favor of complainant on bill for accounting and to impress property with trust is proper. On a bill for an accounting and to impress certain property with a trust, evidence held to support a finding and conclusion of the master in favor of complainant.
    2. Pbincipal and agent, § 42* — when rule as to binding of prim cipal by unauthorized act of agent not disavowed not rigorously applied. The rule that one neglecting promptly to disavow an unauthorized act of his agent makes the act his own will he readily applied where the rights of an innocent third person are involved, but not so rigorously in cases where a principal seeks relief directly against the agent for injuries resulting from the agent’s fraudulent, disloyal and secretive conduct.

      Error to the Circuit Court of Cook county; the Hon. Samuel C. Stottgh, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with directions.
    Opinion filed July 12, 1918.
    Statement of the Case.
    Bill by Charles E. Harding, complainant, against A. T. A. Filler, defendant, for an accounting and to impress certain property with a trust. To reverse a decree for complainant, defendant prosecutes this writ of error.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for plaintiff in error.
    Winters, Price & Stevens and Julian Clay Risk, for defendant in error; George M. Stevens, Sr., George M. Stevens, Jr., and Julian Clay Risk, of counsel.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

3. Equity, § 258 — when refusal to allow amendment of answer is proper. Where, on a bill for an accounting and to impress property with a trust, defendant files an answer simply denying the acts complained of, it is not error to refuse to permit defendant, after the master has prepared his report, to amend his answer so as to let in proof to show that complainant had ratified and acquiesced in those acts which the evidence showed the defendant had committed, especially where there is no claim of express ratification or acquiescence and the evidence before the master supports a finding that there was no sort of acquiescence or ratification.


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Neely Clark, Plaintiff in Error.
    Gen. No. 6,473.
    (Not to he reported in full.)
    Error to the County Court of Boone county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed in part and reversed in part.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Neely Clark, defendant, charging the unlawful sale of intoxicating liquor in anti-saloon territory. To reverse a judgment of fine and imprisonment, defendant prosecutes this writ of error.
    William L. Pierce and Alexander J. Strom, for plaintiff in error.
    F. A. Oakley, for defendant in error; C. W. Ferguson, of counsel.

      Abstract of the Decision.
    1. Constitutional law, § 72

       — when constitutional rights of defendant in criminal case violated. The constitutional rights of one charged with the unlawful sale of intoxicating liquors are violated where he is prosecuted upon an information not supported by a sworn complaint or affidavit.
    2. Criminal law, § 577* — when error in prosecuting person without sworn complaint or affidavit is waived. Error in prosecuting one upon an information not supported by a sworn complaint or affidavit is waived where the question is not raised in the trial court.
    3. Criminal law, § 366* — how objection that information is not supported by sworn complaint or affidavit may be raised. Objection that an information is not supported by a sworn complaint or affidavit may be raised by a motion to quash, by a motion in arrest, or, it seems, by a motion for a new trial.
    4. Criminal law, § 366* — limitation of written points in motion in arrest of judgment. It seems that a motion in arrest of judgment may be limited to the same written points filed in the motion for a new trial.
    5. Criminal law, § 483* — necessity of assignment of errors upon record. The Appellate Court can consider no errors except such as are assigned upon the record.
    6. Criminal law, § 483* — what does not constitute assignment of error upon record. Obtaining leave to assign an additional error or filing with the papers an assignment of error does not amount to an assignment of error on the record.
    7. Intoxicating liquors, § 147* — when shown that third person was acting for defendant in sale of. On an information for the unlawful sale of intoxicating liquor, evidence that a third person sold the liquor in the presence of defendant and turned the money over to defendant, held sufficient to show that such person was acting for defendant in selling it.
    8. Criminal law, § 550* — when improper admission of evidence in rebuttal is harmless error. It was not reversible error, in a prosecution for the unlawful sale of intoxicating liquor in anti-saloon territory, to testify in rebuttal as to that which properly should have been introduced in chief.
    9. Criminal law, § 269* — when instruction that no ' conviction proper on evidence of accomplice alone is properly refused. An instruction that the jury could not convict on the evidence of an accomplice alone was properly refused in a criminal prosecution for the illegal sale of intoxicating liquor in anti-saloon territory, where the conviction was chiefly upon the evidence of two detectives and such instruction tended to indicate that the conviction was sought on the evidence of the accomplice alone.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

10. Criminal law, § 357* — when motion for new trial properly refused. A motion for a new trial in a criminal case on the ground of newly-discovered evidence is properly denied where the evidence is merely cumulative and is not conclusive.

11. Intoxicating liquobs, § 161* — when judgment in criminal prosecution modified on ground of excessiveness. A judgment in a criminal prosecution for the illegal sale of intoxicating liquor in anti-saloon territory for imprisonment for- 240 days in the county jail and fines aggregating $2,950, and costs of $700, and further providing that if, at the end of the jail sentence, the fine and costs were not paid the defendant should stand committed to the county jail until the fine and costs were paid at the rate of $1.50 per day, was held to be excessive, where it appeared that defendant was a man 65 years of age, was in poor health and not a man of means, and such judgment was modified so as to eliminate the fines under the first 20 of the 39 counts and to provide that the order for commitment to the county jail if the costs were not paid should not apply to costs made and taxed against the defendant


text:
    Isadora Pence, Defendant in Error, v. H. C. Pettett, Administrator, Plaintiff in Error.
    Gen. No. 6,483.
    1. Executors and administrators, § 282

       — inclusion in section 8 of Probate Court Act of section 68 of Administration Act relating to appeals from allowance or disallowance of claims. By section 8 of the Probate Court Act (J. & A. 1f 3266), providing that the process, practice and pleadings in the Probate Court shall be the same as those now provided or hereafter provided for probate practice in the County Courts, and that all laws now in force, or hereafter enacted concerning wills or administration of estates shall govern and be applicable to practice in the Probate Courts, section 68 of the Administration Act (J. & A. If 117), providing that, in all cases of the allowance or rejection of claims by the County Court, either party may appeal to the Circuit Court in the same time and manner as appeals are now taken from justices of the peace to the Circuit Court, by appellant giving good and sufficient bond with security approved by the county judge, is included therein.
    2. Executors and administrators, § 282

       — section 68 of Administration Act as governing appeals from allowance or rejection of claims by Probate Court. Section 68 of the Administration Act (J. & A. U 117), providing that, in all cases of the allowance or rejection of claims by the County Court, either party may appeal to the Circuit Court in the same time and manner as appeals are now taken from justices of the peace to the Circuit Court, by appellant giving good and sufficient bond with security approved by the county judge, governs appeals from the allowance or rejection of claims in the Probate Court, instead of the general provisions in either section 124 of the Administration Act (J. & A. II 173), section 11 of the Probate Court Act (J. & A. jf 3269) or section 122 of the County Court Act (J. & A. f 3248).
    3. Statutes, § 210* — when particular provision prevails over general provision. It is a settled rule of the construction of statutes that where there are two provisions, one general and designed to apply to cases generally, and another particular and relating only to one subject, the particular provision must prevail, being treated as an exception to the general provision.
    4. Executors and administrators, § 282* — how appeal from judgment of Probate Court allowing or rejecting claim must be taken. An appeal from a judgment of a Probate Court allowing or rejecting a claim must be taken in conformity with section 1 of article 10 of the Act concerning justices and constables (J. & A. If 6976), providing that appeals may be taken to the Circuit Court from the justice court and that the party praying an appeal shall, within 20 days from the rendition of the judgment, file a bond conditioned as there provided and with a penalty double the amount of judgment and costs, except that such appeal bond must be approved by the probate judge.
    5. Executors and administrators, § 284* — when appeal from dis-allowance of claim in Probate Court is properly dismissed. An appeal from the disallowance of a claim in the Probate Court is properly dismissed where the bond is for an amount less than twice the judgment and costs and the appellant refuses to comply with a rule requiring him to file a sufficient bond within the specified time and he makes no objection to the time, within which he is required to file it, even though the court does not name the penalty of the proposed bond.
    6. Appeal and error, § 300

       — what is final judgment. A judgment of the Probate Court dismissing an appeal from the allowance of a claim is a final one and an appeal lies therefrom.
    7. Appeal and error, § 1574* — when erroneous denial of appeal is harmless error. The erroneous denial of an appeal from a judgment of the Probate Court dismissing an appeal from the allowance of a claim is harmless error where the administrator has the record reviewed by writ of error.
    Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed July 25, 1918.
    Clarence W. Heyl and Harry C. Heyl, for plaintiff in error.
    Frank A. Hall, for defendant in error; A. M. Otman, of counsel.

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

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Prohate Court of Peoria county allowed a claim in favor of Isadora .Pence against the estate of Fred Hahn, deceased, in the sum of $547.50, as of the seventh class. On the same day the administrator prayed and obtained an appeal to the Circuit Court under a bond in the penal sum of $50. Said bond was given 6 days later and was approved by the probate judge. A transcript was filed in the Circuit Court. Thereafter the claimant moved to dismiss the appeal for want of a sufficient appeal bond and the administrator made a cross motion for leave to file a good and sufficient appeal bond. The latter motion was granted and the administrator was given until 2 p. m. that day to file such a bond. At.2 p. m. that day the administrator sought to prove and the claimant admitted that Mead, the surety on the appeal bond, was sufficient security for $50. The administrator did not file another appeal bond, but declined to do so. The appeal was dismissed for noncompliance with the rule. After the appeal was dismissed the administrator sought to withdraw his cross motion and this the court denied. The administrator prayed an appeal to this court. The court denied the appeal, but allowed a bill of exceptions which was duly signed and filed. The administrator has brought the case to this court by a writ of error and the case is now before us on a rehearing.

Section 11 of the Probate Court Act (J. & A. jf 3269) allows appeals, from the final orders, judgments and decrees of the Probate Courts to the Circuit Courts in all matters (except certain proceedings to sell real estate) upon appellant giving bond and security in such amount and upon such condition as the court shall approve. In this case the Probate Court acted under this provision, and if it was applicable the appeal should not have been dismissed. Section 8 of said Probate Court Act (J. & A. if 3266) enacts that the process, practice and pleadings in the Probate Court shall be the same as those now provided or hereafter provided for the probate practice in the County Courts, and that all laws now in force or hereafter enacted concerning wills or the administration of estates shall govern and be applicable to the practice in the Probate Courts. Section 68 of the Administration Act (J. & A. jf 117) provides that, in all cases of the allowance or rejection of claims by the County Court, either party may appeal to the Circuit Court in the same time and manner as appeals are now taken from justices of the peace to the Circuit Court, by appellant giving good and sufficient bond with security approved by the county judge. Section 1 of article 10 of the Act concerning justices and constables (J. & A. ff 6976) allows such appeals from the judgments of the justices to the Circuit Court, and provides that the party praying an appeal shall within 20 days from the rendition of the judgment file a bond conditioned as there provided, and the form given requires the penalty to be double thé amount of the judgment and costs. That article permitted the bond to be filed with and approved by either the justice or the clerk of the court to which the appeal is taken. This Justices Act was adopted in 1895, but on this subject the section just cited is substantially the same as section 62 of the Act of 1872 concerning justices and constables. If section 68 of the Administration Act (J. & A. ff 117) applies to appeals from the allowance or rejection of claims by the Probate Court, then the bond given in this case was insufficient because not double the amount of the judgment and costs. We see no escape from .the conclusion that by section 8 of the Probate Court Act (J. & A. 3266) the Administration Act is embodied therein. If so, there is one general provision for appeals under section 11 of the Probate Court Act (J. & A. |f 3269), and a special and different provision for appeals from the allowance or rejection of claims under section 68 of the Administration Act (J. & A. |f 117). This does not create any new or unusual condition, for section 124 of the Administration Act (J. & A. |f 173) contains a general provision for appeals differing from that of section 68 in regard to appeals from the allowance or rejection of claims. Until the Probate Court Act was passed, the administration of the estates of deceased persons had been for many years conducted in the County Courts and is yet so conducted in most of the counties of the State; yet the County Court Act in section 122 (J. & A. |f 3248) has a general provision for appeals upon appellant giving bond and security in such amount and upon such conditions as the court shall approve. It therefore appears that before the Probate Court Act was adopted there were two general provisions for appeals, one in the County Court Act and one in. the Administration Act, and also a different provision specially limited to the allowance or rejection of claims. So far as we are aware it has been uniformly held that upon an appeal from the County Court from a judgment allowing or rejecting a claim, said appeal must be taken under section 68 of the Administration Act (J. & A. jf 117), notwithstanding the two general provisions for • appeals above referred to. In Grier v. Cable, 159 Ill. 29, where the question was whether an appeal from the County Court in the allowance of a claim in that case should have gone to the Appellate Court direct, it was held that the appeal was properly taken to the Circuit Court under the provisions of section 68 of the Administration Act (J. & A. Tf 117). The reason why section 68 of the Administration Act (J. & A. jf 117) governs appeals from the allowance or rejection of claims instead of the general provision for appeals in either the Administration Act, the County Court Act or the Probate Court Act, is that it is a settled rule of construction of statutes that where there are two provisions, one general and designed to apply to cases generally, and another particular and relating only to one subject, the particular provision must prevail and it must be treated as an exception to the general provision. The special provision upon that particular subject indicates a legislative intention that it is not to be included in the general provision, and the latter is held inapplicable or is controlled by the special provision. People v. Rose, 166 Ill. 422, and other cases. The Administration Act and the County Court Act have been in force since the Revision of 1872-4. Before that, section 138 of the Statute of Wills of the Revision of 1845 was in force, and it allowed appeals from judgments of the court of probate to the Circuit Court “as in other cases,” and those words were construed to mean “as in cases before justices of the peace” in Horner v. Goe, 64 Ill. 178, and Darwin v. Jones, 82 Ill. 107. Said provision of the Statute of Wills allowing appeals in probate matters “as in other cases” has been in force at least ever since July 1, 1829, when it was enacted as section 133 of the Statute of Wills of that date. (Revised Laws of 1833.)

So far as we are advised there are Probate Courts in but ten of the counties of this State and most of these are in the First and Second Appellate Court Districts. The First District in Barker v. Thompson’s Estate, 98 Ill. App. 78, an appeal from an allowance of a claim in a Probate Court, held that the practice was the same as in appeals from justices of the peace. This court so held in Switzer v. Gertenbach, 122 Ill. App. 26, and in Haaren v. Miller, 139 Ill. App. 405, an appeal from an allowance of a claim in the Probate Court of Peoria county. Bach side claims the benefit of this last decision, but this arises from a failure by one side to consider the precise question presented. The motion in the Circuit Court was to dismiss the appeal because the administrator had not perfected it at the term at which the judgment was obtained, and the Circuit Court granted that motion on the ground that section 68 of the Administration Act (J. & A. ft 117) was repealed by section 11 of the Probate Court Act (J. & A. 3269). We held that, by section 8 of the Probate Court Act (J. & A. ft 3266), section 68 of the Administration Act (J. & A. ft 117) was adopted therein, and that as the appeal bond in that case was filed within 20 days after the judgment, as required by the Justices Act, it was filed in apt time and should not have been dismissed. The motion in the Circuit Court which was before us for review did not raise the question whether the bond was in any other respect insufficient or improper. Some language in our decision was not sufficiently guarded, and it is modified by this opinion. It was held in Fix v. Quinn, 75 Ill. 232, that under the Justices Act no prayer or order of appeal is necessary; that it is a sufficient praying for an appeal to enter into an appeal bond, and that it must be done within 20 days. We are of opinion that an appeal from a judgment of a Prohate Court allowing or rejecting a claim must be taken in conformity with the Justices Act, except that it must be approved by the probate judge and therefore cannot be filed and approved by the clerk of the court. Language can be found in reported decisions contrary to this conclusion, but an examination of those cases will show that, in nearly if not quite all of them, the appeal was not from the allowance or rejection of a claim but in some other probate matter not governed by said section 68.

We conclude, in conformity with the rule laid down in Brown v. Keirns, 13 Ill. 296, that though the bond filed in the Probate Court was insufficient, the administrator could avoid the difficulty by executing a sufficient bond. The Circuit Court therefore properly authorized him to file a sufficient bond, and inasmuch as the penalty of the bond was required by said section 68 and the Justices Act to be double the amount of the judgment and costs, it was unnecessary for the court to name the penalty of the proposed bond. The administrator did not object to the time within which he was required to file it. If the time was too short he could, no doubt, have obtained an extension of time. Instead, he announced that he would not comply with the rule. The court therefore properly dismissed the appeal. This was a final judgment and the court erred in not granting an appeal to this court therefrom. But, as the administrator has had the record reviewed by this writ of error, he was not harmed by that refusal.

The judgment is therefore affirmed.

Affirmed.


text:
    Clinton F. Luther, Appellee, v. George Mathis et al., Appellants.
    Gen. No. 6,511.
    1. Pleading, § 219

       — when duty lies on court to correct erroneous ruling on pleadings. It is within the power of . a court and is its duty to set aside an erroneous ruling on pleadings made either by the judge trying the case or another judge, and to correct the error.
    2. Pleading, § 225* — right of party to time to determine whether to stand by pleading. The party against whom a ruling is made on a pleading should be given a reasonable opportunity to determine whether to stand by the pleading or to plead over.
    3. Continuance — when refusal to postpone or continue case to give party opportunity to determine whether to stand by pleading is error. The denial, in an action by an assignee of notes against the makers on such notes, of a motion for the postponement or continuance of the case, after the filing of replications by plaintiff to defendants’ pleas of set-off and sustaining of demurrers to the pleas, in order to give defendants’ counsel an opportunity to examine papers covering a long course of dealing between the parties, which papers were 40 miles away at the home of their client, and to determine whether to stand by the pleading or plead over, was error where such special pleas showed that the statute of limitations had run against the causes of action stated therein, as did also the affidavit by defendants’ counsel in support of their motion, and the replications, as the result of lack of denial, confessed the allegations of special pleas that the notes were indorsed by the payee to the assignee without consideration and that the payee was still the real owner of such notes and of the rights of recovery, and that one of the defendants received no consideration for the notes and was a mere surety, and the set-offs were claims of the principal debtor against the payee.
    4. Pleading, § 355* — when discretion abused in allowing withdrawing of pleading and allowing interposition of demurrer. It is an abuse of discretion to permit a party to withdraw a pleading and to demur to a pleading of the opposite party after the cause of action is barred by the statute of limitations, even though such demurrer is well founded in law.
    5. Pleading, § 131* — what allegations admitted by replications. Allegations in special pleas, in an action by an assignee of notes on such notes against the makers, which are not denied by the special replications are deemed admitted.
    6. Set-off and recoupment, § 2

       — what is nature <yf set-off. A set-oil is a counter demand which the defendant holds against the plaintiff, arising out of a transaction extrinsic of plaintiff’s cause of action.
    7. Set-off and recoupment, § 10* — what may not be subject of set-off. Unliquidated damages may not be the subject of a set-off.
    8. Set-off and recoupment, § 2* — what is nature of recoupment. Recoupment is in the nature of a cross-action, where defendant alleges that he has been injured by a breach by plaintiff of another part of the contract on which the action is founded.
    9. Set-off and recoupment, § 18* — what may be subject of recoupment. Unliquidated damages are the subject of recoupment, upon breach of a contract.
    10. Set-off and recoupment, § 4* — how distinguished. Set-off permits not only the defeat of plaintiff’s cause of action, but a recovery against plaintiff, while recoupment can only extinguish plaintiff’s cause of action.
    11. Set-off and recoupment, § 29* — necessity of pleading. A set-off must he pleaded except where a statute permits a notice in lieu of a plea, while a recoupment need not be specially pleaded.
    12. Set-off and recoupment, § 13* — who may take advantage of set-off. A set-off due a principal is also available to his surety.
    13. Set-off and recoupment, § 13* — necessity of consent of principal to pleading by surety. The consent of the principal to the pleading of a set-off is necessary.
    14. Set-off and recoupment, § 13* — when consent of principal to pleading by surety is shown. The consent of the principal to the pleading of a set-off, in an action on promissory notes against the principal and the surety, is shown by their joining in the plea.
    15. Setoff and recoupment, § 10* — what is not unliquidated damages. A straight plea of set-off for a specific sum owing by the payee of a note to the maker for labor and material is not unliquidated damages.
    16. Setoff and recoupment, § 31* — when plea of set-off is defective. A plea of set-off, in an action by the assignee of notes against the maker and surety, which professes to answer and prays judgment of the entire cause of action of plaintiff, when it should have been so framed as to answer only a part thereof, is defective in form.
    17. Set-off and recoupment, § 35* — when plaintiff cannot complain of formal defect in plea. A plaintiff cannot complain of a formal defect in a plea of set-off where he joins issue with the plea in such form.

      18. Set-oef and recoupment, § 31

       — what constitutes good plea of recoupment in action by assignee on notes. A plea of recoupment is good, in an action by the assignee of notes against the maker and his surety, which alleges that the maker bought a stock of merchandise and the good will in connection therewith from the payee and that the notes sued on were a part of the consideration therefor; that another part of the contract was that the payee would not enter into business for 10 years in the village where such merchandise was; and that he did enter into competition with the maker in such merchandise business, and that thereby the maker was injured to a specified sum exceeding the amount of such notes, even though there could be no recovery on such recoupment beyond the amount of the notes.
    19. Set-oef and recoupment, § 31* — when pleas are bad. Pleas of set-off in an action by the assignee of notes against the maker and surety are bad where they allege that the maker paid the payee more rent for a certain store than it was reasonably worth, but show no facts that would authorize him to recover back part of the rent paid.
    Appeal from the Circuit Court of Plenry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed July 25, 1918.
    Nels F. Anderson, for appellants.
    Harry E. Brown and Sturtz & Ewan, for appellee.

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

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Under date of November 8,1904, George Mathis and August Mathis executed and delivered three notes, payable to the order of Abe Miller, each for $200, due 2 years after date, with interest at 6 per cent, per annum payable annually. Miller assigned these notes specially to Clinton F. Luther and he brought this suit against the signers and filed a count on each note, and the common counts. An affidavit of claim was attached. Defendants filed seven pleas. The first was the general issue, and the second to the seventh were special pleas, in form pleas of set-off. They were verified. Recitals in the bill of exceptions at the time of the trial show that a demurrer to said special pleas had been filed June 1, 1914, and had been overruled January 13, 1916, but said demurrer and order are not in the record before us (though the abstract recites that they are), and they were not called for by .the praecipe for this record. It is disputed whether said order was by the judge who afterwards tried the cause, and in the absence of the order from the record we cannot determine that. Plaintiff filed replications to each of said special pleas. Amended replications were filed to each of said special pleas and issues of fact were joined thereon. A first jury trial was interrupted by a continuance granted plaintiff. During the second jury trial the court set aside the former order overruling a demurrer to the special pleas, and sustained the demurrer to said special pleas; denied a motion by defendants for a postponement or a continuance and directed a verdict for plaintiff for $800, which was the amount due on the notes. Thereafter a motion for a new trial was denied, plaintiff had judgment, and defendants appealed.

The power and duty of a court to set aside an erroneous ruling on pleadings made either by that or another judge, and to correct the error, is well established in this State. Fort Dearborn Lodge v. Klein, 115 Ill. 177; Dowie v. Priddle, 216 Ill. 553, and other cases. These cases further indicate that the party against whom the ruling is so made should be given a reasonable opportunity to determine whether to stand by the pleading or to plead over. In this case the cause had been at issue for a long while, and when the court during the trial sustained the demurrer to the pleas, counsel for defendants asked the court either to temporarily postpone the trial or to continue the cause, and showed by his affidavit that the case involved a long course of dealing between the parties, and that his client, G-eorge Mathis, had at his home, 40 miles from the courthouse, many papers bearing upon those dealings, and that counsel desired to examine them before determining what course to pursue. A postponement for even a day would have been within the terms of his request, and we think it should have been granted. Still, the refusal of that motion was not reversible error if defendants were not harmed thereby. We conclude they were harmed in' two respects. The face of the special pleas showed that the statute of limitations had run against the causes of action stated therein, when the court virtually struck out plaintiff’s replications and sustained the old demurrer to the special pleas. Also, the affidavit filed by defendants’ counsel expressly stated that the statute of limitations had run. Shortly after this action in the lower court, the Supreme Court in Pease v. Rockford City Traction Co., 279 Ill. 513, held that it was an abuse of discretion to permit a party to withdraw a pleading and to demur to the pleading of the opposite party after the expiration of the limitation, even though said demurrer was well founded in law. Under that rule it was error to take this action after the causes of action set up in defendants ’ special pleas were barred by the statute of limitations. But defendants were thereby injured further by being deprived of the admissions of the special replications. The declaration did not aver that plaintiff was a purchaser of the notes before maturity. Bach special plea alleged, in substance, that these notes were indorsed by Miller to Luther without consideration and that Miller is still the real owner of the notes and of the rights of recovery on the notes, and that defendant, August Mathis, received no consideration for the notes and was a mere surety, and the set-offs were claims of the principal debtor, George Mathis, against Miller. The special replications to these special pleas did not deny any of the allegations we have above stated. They were therefore confessed by the replications. In Simmons v. Jenkins, 76 Ill. 479, it is stated as a fundamental rale of common-law pleading that a fact asserted on one side and not denied on the other is admitted. Heard’s Civil Pleading, 162. These admissions by silence in the pleadings would not be binding if suits were afterwards brought upon the causes of action stated in the special pleas.

A set-off is a counter demand which defendant holds against plaintiff, arising out of a transaction extrinsic of plaintiff’s cause of action, and unliquidated damages may not be the subject of a set-off. Recoupment is in the nature of a cross-action, where defendant alleges that he has been injured by a breach by plaintiff of another part of the contract on which the action is founded, and unliquidated damages may be so recouped. Set-off permits not only the defeat of plaintiff’s cause of action, but a recovery against plaintiff for a further sum. Recoupment can only extinguish the plaintiff’s cause of action. 34 Cyc. 623-625. A set-off must be pleaded (except where a statute permits a notice in lieu of a plea), while a recoupment need not be specially pleaded. 34 Cyc. 643. The implication, however, is that it may be specially pleaded. A set-off due a principal is also available to his surety. Himrod v. Baugh, 85 Ill. 435; Gilliam v. Coon, 10 Ill. App. 43; Hayes v. Cooper, 14 Ill. App. 490; Graff v. Kahn, 18 Ill. App. 485; Wieland v. Oberne, 20 Ill. App. 118; Ronehel v. Lofquist, 46 Ill. App. 442; Marcy v. Whallon, 115 Ill. App. 435. The consent of the principal to such pleading by the surety is necessary and is shown here by their joining in the pleas.

The second plea is a straight plea of set-off for $178.50, owing by Miller to George Mathis for labor and material. This is not unliquidated damages, under East v. Crow, 70 Ill. 91, which has been followed by at least three of the Appellate Courts of this State in D. Heenan Mercantile Co. v. Welter, 144 Ill. App. 279; Tartt v. Ramey, 158 Ill. App. 468; Ideal Coated Paper Co. v. Samuel Cupples Envelope Co., 169 Ill. App. 484, and in other cases. Said second plea is defective in its beginning and conclusion, in that it professes to answer and prays judgment of the entire cause of action of plaintiff, whereas it should have been so framed as to answer only a part thereof. Having joined issue on this plea in that form, plaintiff ought not now to be permitted to take advantage of that merely formal defect. The fourth plea is for a mere money demand of $75, and subject only to said formal defects. The fifth plea was a good plea of recoupment, sufficient to defeat the plaintiff’s entire demand, if proven. It is alleged that George Mathis bought a stock of merchandise and the good will in connection therewith from Miller, and that the notes sued on are a part of the consideration therefor; that another part of said contract was that Miller would not enter into business for 10 years in the village where said merchandise was, and that within that time he did enter into competition with George Mathis in said merchandise business, and thereby George Mathis was injured to the extent of $2,000. True, defendant August Mathis could have no further benefit of this violation by Miller of the contract than to defeat the notes, and George Mathis also could not recover beyond the face of the notes, because Luther would not be liable to defendant or defendants for more than sufficient to defeat the notes. Yet, to the extent of defeating the notes, the plea was good. We are of opinion that the third and sixth pleas do not state a defense. They allege that George Mathis paid Miller more rent for a certain store than it was reasonably worth, but show no fact that would authorize him to recover back part of the rent paid. The seventh plea seeks to set off work and labor in the sum of $500, and is therefore good to defeat, partially, plaintiff’s cause of action, except for the same imperfect form of the beginning and conclusion of the plea.

The judgment is therefore reversed and the cause remanded with directions to vacate said order and to restore the special pleas and the replications thereto, except as to the third and sixth pleas, and with leave to defendants to amend said third and sixth pleas if they desire.

Reversed and remanded with directions.


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    J. H. Forquer, Appellee, v. C. B. Thomas, Appellant.
    Gen. No. 6,546.
    Appeal and ebbor, § 1802

       — when judgment reversed and remanded mthout decision on merits. The judgment should be reversed and the case remanded to the trial court with directions to render a judgment against the two defendants on the verdict, without a decision on the merits, where an action is brought against the two members of a partnership to recover compensation for the sale of real estate, and, although one partner only is served, the other appears and they both file pleas, and a verdict is returned for plaintiff and a judgment rendered against the partner served, and he alone appeals.
    Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed July 25, 1918.
    R. D. Robinson, for appellant.
    J. J. Welsh and E. P. Williams, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Forquer brought assumpsit against Thomas and Pierce, alleged to be partners, in the Circuit Court of Knox county, to recover compensation for the sale of real estate. Thomas was served with summons and Pierce was not. They both appeared and filed pleas. Issues were joined and there was a jury trial and a verdict for plaintiff for $640. Judgment on said verdict was rendered against Thomas alone, and he prosecutes this appeal from that judgment and assigns for error, among other things, that the judgment should not have been against himself alone, but should have been against himself and Pierce. Appellee confesses this error and urges that the judgment should be reversed and the cause remanded with directions to the trial court to enter a judgment on the verdict against both defendants. Appellant in reply urges that we should pass on all the errors assigned and that upon so doing we should find that plaintiff has no cause of action and the cause should not be remanded.

Though Pierce was not served, yet he appeared and pleaded and there should have been a judgment against both defendants on that verdict. We ought not now to decide the merits because they might be decided adversely to the defense, whereas, when a judgment is entered against Pierce upon the verdict, he has a right to be heard on appeal. We cannot bind Pierce until there is a judgment against him and we ought not to decide the merits until he is present here.

The judgment is therefore reversed and the cause remanded with directions to the court below to enter a judgment against both defendants upon the verdict. Leave is given appellant to withdraw his record, abstracts and briefs, and to appellee to withdraw his briefs.

Reversed and remcmded with directions.


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    Samuel H. Potter, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen. No. 6,554.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 874

       — when gate to right of way shown to he insufficient to Keep out horses. A slide gate opening into a railroad right of way is shown to be insufficient to keep out horses on the adjoining land where such gate consists of parallel boards at the top and bottom nailed to uprights and a brace extending diagonally across the gate, and the evidence tends to show that the brace is insufficient, and it further appears that the gate is covered with wire netting; that the gate slides on cleats nailed to two posts placed a few inches apart at each of the ends; that the cleat at the opening end was smooth; that the bottom of the gate was above the ground; that the post at the opening end nearer the right of way was smooth and that the top board was old, cracked, broken, and worn smooth and extended an insufficient distance over the cleat between' the posts, rendering it easy for a horse to open the gate by rubbing against the end of the top board where it projected over the cleat.

      Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by Samuel H. Potter, plaintiff, against Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, to recover the value of two horses killed by one of defendant’s freight trains after getting through a gate in the right of way fence and onto the railroad tracks. From a judgment for plaintiff for $500, defendant appeals.
    Free P. Morris, Eugene P. Morris and Roscoe C. South, for appellant; L. J. Hackney and Frank L. Littleton, of counsel.
    A. F. Goodyear, for appellee.

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

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

   Mr. Presiding Justice Dibell

deEvered the opinion of the court.

2. Witnesses, § 257* — ^uohen signed statements are admissible to affect credibility of witness. Statements prepared by agents of a railroad company and signed by the owner of horses killed on the railroad right of way as the. result of getting through a defective gate, one of which was that the gate was left open by an unknown party, and the other that the owner thought some one had slid the gate open and did not close it, as it would be impossible for horses to open the gate, were admissible to be considered as affecting the testimony of the signer that when preparing the statements the agents talked much to him and that he understood that they were about to settle with him for the horses and that he looked over the papers hastily and did not know that these statements were contained therein when he signed them, that he did not say such things to the agents and that they were untrue.

3. Evidence, § 281* — when newspaper article is incompetent. A newspaper article stating that the owner of horses killed by a train as the result of getting through a gate leading to the railroad right of way stated in an interview that he thought careless hunters left the gate open is inadmissible, in an action to recover for the death of the horses, where the editor who wrote the article was a witness and testified that at the time he interviewed the owner and others, but that he could not then remember from whom he got the information contained in the article.

4. Railboads, § 306* — when notice warning hunters to keep off premises is inadmissible. A notice warning hunters to keep off the premises of several persons, including that of one whose horses were killed by a train as the result of getting through a defective gate to the right of way, which notice was posted along the track a half mile from the place of the accident, is inadmissible in an action to recover for the loss of such horses, although it is the contention of the defendant that some careless hunters left the gate open.

5. Tbial, § 302* — when modification of proposition of law is proper. A proposition of law tendered by the defendant, in an action by the owner of horses against a railroad company for the loss of such horses due to their getting through a defective gate onto the right of way and being killed by a train, that the burden was upon plaintiff to show that the gate was opened after 3 o’clock of the preceding day, was properly modified so as to omit reference to the hour where, if such proposition had been given as tendered, the effect thereof would have been the equivalent to saying that the testimony of a witness for defendant, who had testified that he passed by the gate at 3 o’clock of the afternoon of the day preceding the accident and the gate was then closed, was true.


text:
    Daniel Jenkins, Appellee, v. Crescent Auto Company, Appellant.
    Gen. No. 6,560.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodobe N. Gbebn, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by Daniel Jenkins, plaintiff, against Crescent Auto Company, defendant, to recover the sum of $300 advanced by plaintiff to defendant as part of the purchase price in the course of the purchase of a new automobile, pursuant to which defendant was to take plaintiff’s old car, sell it within 60 days, and refund the sum of $300 to plaintiff. Defendant failed to sell the car within the specified time or to refund the money advanced. From a judgment for plaintiff for $300 in the Circuit Court, after appeal thereto by defendant from a judgment in the justice court for a similar sum, defendant appeals.
    Nathan H. Weiss, for appellant.
    O. A. Smith, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 263 — when corporation may not accept favorable part of contract made by officer and reject unfavorable part. A corporation may not accept the favorable part of a contract for the sale of an automobile, pursuant to which its secretary, the holder of the majority of stock, who acted as a sales agent, agreed to sell a new automobile to a person for a specified sum and to give credit for a used automobile, the purchaser, however, to advance the part of the purchase price represented by the agreed value of the used car, and such secretary guaranteed that he would sell the used car within a specified time and refund the agreed value thereof, by retaining the check for the purchase price of the new car, and deny liability as to the unfavorable part of the contract on the ground that neither the corporation nor the secretary had the power to make such a guaranty.

2. Sales, § 51* — when contract for exchange of automobiles and refunding of sum advanced representing value of used car is shown. Evidence held sufficient to show a contract for the sale of an automobile under which the purchaser agreed to pay the entire sum in cash except the agreed value of an exchanged car and to loan or advance the value of the latter, and the corporation agreed to sell the old car within a specified time and refund the sum advanced.

3. Sales, § 181* — when equitable title to exchanged automobile is obtained. The seller of a new automobile, who receives an advance or loan from the purchaser represented by the value of a used car, which is to be taken as part payment and which the seller agrees to sell within a certain time and to refund the loan, is at least the equitable owner of the used car and improvements made thereto by it upon payment of a judgment against it for the amount of such advance, although the contract provides that title to the used car shall remain in the owner of such car until the sale is made.