text:
    Oscar G. Lee, Appellee, v. S. E. Perlberg et al., trading as S. E. Perlberg & Company, Appellants.
    Gen No. 20,316.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by Oscar G-. Lee against S. E. Perlberg and Carl Joseph, trading as S. E. Perlberg & Company, to recover rent. To reverse a judgment for $1,288.48 recovered against defendants on a directed verdict, defendants appeal.

      Abstract of the Decision.
    1. Landlord and tenant, § 416

      —when assignees’ agreement to perform covenants of lease not terminated by subsequent guaranty. Where assignees in an assignment of a lease assumed and agreed to make all payments and to perform all the covenants and took possession and later assigned the lease to another guarantying the performance of the covenants by their assignee, held that the execution of the guaranty by the assignees did not affect their liability under the assignment from the original lessee by which they assumed the obligations of the original lease, that they received possession of the premises and thereby a privity of estate with the lessor which was terminated by the assignment and transfer of possession to their assignee, but the privity of contract, their contractual liability to the lessor, was not thereby terminated.

      January 26, 1911, plaintiff Lee demised by written lease certain premises at Oklahoma City, Oklahoma, to one Minton for a term of five years from February 1, 1911, at a rental of $225 per month. July 24, 1911, Minton assigned his interest in the lease to defendants by an assignment in writing indorsed thereon, containing the following provision: “We, said assignee, hereby assume and agree to make all the payments yet to be made, and perform and abide by all the covenants, conditions and provisions of the written lease, by said lessee to be performed.” On the same day by an agreement in writing between plaintiff and defendants, the rent was reduced to $200 per month. February 5, 1912, defendants assigned in writing the lease .to one Fricke and, “guaranteed the performance by said assignee of all the covenants on the part of the lessee in said lease contained.” Fricke took possession of the demised premises and paid the rent up to April 1, 1912. The suit was brought to recover rent at $200 per month from April 1, 1912, to the beginning of the suit, less credits of $186.52 and $40.
    McEwen, Weissenbach, Shrimski & Meloan, for appellants.
    F. William Kraft, for appellee; Robert N. Erskine, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Guaranty, § 26*—when guarantor not discharged by delay in proceeding against maker. Mere delay in bringing suit or failure to use diligence in attempting to collect from the principal will not discharge the guarantor; to have such effect there must be a valid and binding agreement for an extension for a definite period entered into on a valid consideration.

3. Appeal and error, § 1478*—when admission in evidence of foreign statute not prejudicial. Erroneous admission in evidence of a statute of another State which is only declaratory of the common-law rule in force in this State, held not prejudicial error.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    William T. Kellogg, Appellant, v. F. A. Hale et al., Appellees.
    Gen. No. 20,333.
    1. Bills and notes, § 462

      —when instruction erroneous. In an action on a promissory note by a person claiming to be an innocent holder for value before maturity where the maker’s defense was that false representations were made to him as to the consideration of the note and that there was no consideration for it, an instruction, in effect, telling the jury that plaintiff could not recover if there was no consideration for the note and there was fraud and circumvention at the time it was made, and that the burden was on the plaintiff to prove by a preponderance of the evidence every material fact of his case, held erroneous for the reason there was no evidence of any fraud and circumvention in procuring the note, and also for the reason that the burden was on the defendants and not the plaintiff to show that the note was without consideration and that plaintiff was not an innocent holder for value before maturity.
    2. Bills and notes, § 61*—fraud which will not invalidate. False representations made to the maker as to the consideration, held not to constitute such fraud as will invalidate the note; the fraud must relate to the execution and not to the consideration on which it is based.
    3. Bills and notes, § 61*—what fraud invalidates. Fraud which vitiates a promissory note must consist of some trick or device that induces the giving of one kind of an instrument under the belief of the maker that he is giving one of a different kind.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed November 30, 1914.
    Statement by the Court. Plaintiff brought an action in the Municipal Court against defendant Hale as maker and Winchester and Loveless as indorsers of a promissory note for one thousand dollars, dated November 23, 1913, and payable four months after date. Hale in his affidavit of defense did not state that any fraud or circumvention was used in obtaining his signature, but only that false and fraudulent representations were made to him as to the consideration for the note, and that in fact there was no consideration for it. The court instructed the jury that the plaintiff claimed that he was an innocent holder before maturity for a valuable consideration; “that this meant that he was a purchaser of the note before due for a valuable consideration, and with no knowledge of any defect in the title or any want of consideration or of any fraud in the transaction prior to the purchase; * * * that plaintiff was not entitled to recover if they believed from the evidence that the note was given without any consideration, and that there was fraud and circumvention at the time the note was made; * * * that the burden of proof was on the plaintiff and he must show by a preponderance of the evidence every material part of his case.” The jury found the.issues for the defendants. Plaintiff’s motion for a new trial was denied and from a judgment of nil capiat the plaintiff prosecutes this appeal.
    Cavender, Kaiser & Wermuth, for appellant.
    Beach & Beach, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

There is in the record no evidence of any fraud or circumvention in obtaining defendant to make the note. He knew that he was making a promissory note and only claims that false representations were made to him as to the consideration of the note, and that in fact it was given without consideration. Fraud must relate to the execution of the note and not to the consideration on which it is based. The fraud must consist of some trick or device that induces the giving of one kind of an instrument under the belief of the maker that he is giving one of a different kind. Gray v. Goode, 72 Ill. App. 504.

The burden was on the defendants to show that the note was without consideration and that plaintiff was not an innocent holder thereof for value and before maturity.

The giving of the instructions above quoted constitute reversible error, and for such error the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice McSurely

text:
    Marie A. Fellows-Kimbrough, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,836.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by Marie A. Fellows-Kimbrough against Chicago City Railway Company for personal injuries sustained by plaintiff in a collision between street cars. To reverse a judgment entered on a verdict in favor of plaintiff for thirty-seven hundred and fifty dollars, defendant appeals.
    The facts relating to the accident are as follows: Thirty-fifth street in Chicago runs east and west, and Indiana avenue north and south, and where they intersect the street car lines of the defendant cross each other at right angles. On the day of the accident plaintiff was riding on an eastbound Thirty-fifth street car. As it was crossing Indiana avenue a car coming from the south on Indiana avenue did not stop to permit the Thirty-fifth street ear to pass safely but ran into it knocking it partly off the track. Defendant conceded that under the circumstances the Indiana avenue car should have stopped at the south cross walk and have permitted the Thirty-fifth street car to make the crossing with safety. The explanation of this failure to stop was that although the motorman on the Indiana avenue car attempted to stop it at the usual place by turning the controller handle, which would shut off the electrical power, his attempts were unavailing by reason of a defect in the mechanism in the controller box. The particular defect is said to have been that one of the “fingers” which are fastened to the “terminals” in the controller box was bent so as to prevent the turning of the controller handle. It also appeared there was another device connected with the car called a canopy switch which might have been used by the motorman to stop the car in case the controller failed to work. It was located over the head of the motorman and one of its purposes was automatically to turn off the electric power when there is an overload of electric current. It could also be operated by turning a switch handle which shut off the power when for any reason the mechanism of the controller box failed to turn off the current. This device was the means by which the motorman finally brought the car to a stop.

      Abstract of the Decision.
    1. Carriers, § 381

      —sufficiency of evidence to show negligence of motorman in failing to avert collision. In an "action against a street railway company for personal injuries received by plaintiff in a collision between a street car on which she was a passenger and another car at a street intersection, where the defense was that the motorman on the latter car was unable to stop his car by reason of a defect in the mechanism qf the controller box, a verdict for plaintiff held sustained by the evidence, there being evidence to show that the motorman could have stopped his car had he turned a canopy switch connected with the car and used for the purpose of turning off the electric power.
    2. Damages, § 115*—when verdict for personal injuries not excessive. A verdict for thirty-seven hundred and fifty dollars for personal injuries to a woman held not excessive, where it appeared she "received bruises on her body, arms and legs and a fracture of one or two ribs and that she suffered from traumatic neurasthenia, and it also appeared that previous to the accident she was in robust health, and a physician in active practice earning two hundred dollars per month.
    3. Appeal and error, § 1514*—when improper remarks of counsel not reversible error. Improper remarks of plaintiff’s counsel in his address to the jury held not so prejudicial as to require reversal, where it appeared that the statements made were such as reacted against the plaintiff rather than to the disadvantage of defendant.
    Charles Le Roy Brown, for appellant; Leonard A. Busby and John E. Kehoe, of counsel.
    Harvey E. Wynekoop and Edward Maher, for appellee; Guerin & Barrett, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, Plaintiff in Error, v. Albert Zeutschell, Defendant in Error.
    Gen. Nos. 20,022-20,033.
    1. Appeal and error, § 1669

      —when irregularity in perfecting appeal waived. Where there are irregularities in perfecting appeals from a justice court to the Criminal Court, in that the bonds were not filed and approved by the same officer, or were not filed within the statutory time, the irregularities may be considered waived by the parties appearing in court and proceeding to dispose of the causes without objection.
    2. Appeal and error, § 788*—burden of preserving matters for review. The burden is upon a plaintiff in error to preserve for review the matters before the trial court, and the failure to do so is not cured by attempting, even with success, to show the weakness of the various considerations which may or may not have been presented to the lower court and moved it to its conclusions.
    3. Appeal and error, § 1318*—when order dismissing appeal presumed justified. On writ of error to reverse an order dismissing an appeal from a justice court, it will be presumed there were sufficient matters presented to the court to justify the order, in the absence of a bill of exceptions.
    Error to the Criminal Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Maclay Hoyne, for plaintiff in error; Lloyd C. Whitman, of counsel.
    Felix J. Streyckmans, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Twelve eases of The People v. Zeutschell, bearing the above numbers and pending in this court on writs of error to the Criminal Court, have been ordered consolidated for hearing, and the judgment of this court will be entered in each of said cases.

The cases were begun before a justice of the peace, and in each plaintiff claimed of defendant a penalty for the violation of a section of the statute providing for the creation of anti-saloon territory. Hurd’s HI. St. 1913, ch. 43, p. 1025 (J. & A. 4648, 4650-4652.) Upon the trial defendant was adjudged guilty and fined. Within twenty days thereafter appeal bonds in all the cases were approved by the justice but not filed with him. In ten of the cases the-bonds were filed with the clerk of the Criminal Court within twenty days, and in two of the cases within twenty-one days, after the entry of the judgments. On October 14, 1912, the defendant moved in the Criminal Court to dismiss the suits and, as the record has it, by “express consent and agreement of said parties hereto by their respective attorneys now here given and made in open court,” it was ordered that “this cause” be continued to October 19th. No order appears to have been made on October 19th, but on November 16th in six of the cases, and on December 7th in the remaining eases, the following was entered by the court: “This day come the said parties hereto by their respective attorneys. And on motion of counsel for said appellant, it is ordered by the court that this cause be and the same is hereby dismissed out of this court, without costs, and that the said defendant go hereof without day.”

Plaintiff contends in this court that the entry of these orders of dismissal was erroneous and that the judgments should be reversed. It is suggested but not argued by the plaintiff that there were certain irregularities in perfecting the appeals from the justice court to the Criminal Court, in that the bonds were not filed and approved by the same officer, either the justice or the clerk of the Criminal Court, and in two cases were not filed within the statutory time. We are of the opinion that where, as is the case here, both parties appear in court and proceed to dispose of the cause without objection, such irregularities, if any, will be considered waived. Jarrett v. Phillips, 90 Ill. 237; Gallimore v. Dazey, 12 Ill. 143; Rago v. Veneziano, 155 Ill. App. 557. These points cannot be raised for the first time in this court. Beardsley v. Hill, 61 Ill. 354.

It is urged by the plaintiff that the jurisdiction of the justice should not have been determined by the Criminal Court from the process issued by the justice or from the record made by the justice, but that it should have been determined from the evidence upon a trial of the cases de novo in the Criminal Court. To this the defendant replies that as there is no bill of exceptions before us, it cannot be said that the Criminal Court determined the question of the jurisdiction of the justice, and furthermore that, in the absence of á bill of exceptions showing the contrary, it will be presumed on appeal that the order of dismissal was properly entered. There is no doubt that this is in accord with the general rule. People ex rel. Mouschenrose v. Drainage Com’rs Big Lake Spec. Drain. Dist., 156 Ill. 614; Mullen v. People, 138 Ill. 606; Blair v. Ray, 103 Ill. 615. It sufficiently appears from the record that something was presented to the trial court which led it to rule favorably on defendant’s motion to dismiss the cases. Respective counsel say there were matters considered by the court on the motion, but they do not agree, at least in argument, as to what these matters were, and without a bill of exceptions we cannot know. In such a situation we fail to see any reason why the ordinary rule should not prevail, and we must therefore presume the sufficiency of the matters presented to justify the orders of dismissal.

Proceeding upon the assumption that the court dismissed the cases before trial because of its conclusion that the justice had no jurisdiction, plaintiff, by argument and citations, maintains that this could not properly be done. It seems to us, however, that even if it should be conceded that such a course was erroneous plaintiff would not thereby be aided, for as we must presume some justifiable ground for the action of the court, it would follow that the ground attacked by plaintiff could not be the ground which moved the court to its conclusion.

Plaintiff would seem to assert that because we cannot say from the law record what was before the court which moved it to dismiss the eases wé must conclude that its action was erroneous. As held in the cases cited above, the correct rule is just the reverse of this. The burden was upon plaintiff in error properly to preserve for review the matters before the trial court, and the failure to do this is not cured by attempting, even with success, to show the weakness of the various considerations which may or may not have .been presented to the court and moved it to its conclusion. In the absence of a bill of exceptions we cannot say that there was error in the orders of the court, and the judgments are affirmed.

Affirmed.


text:
    Von Platen & Dick Company, Plaintiff in Error, v. Chicago Veneered Door Company, Defendant in Error.
    Gen. No. 20,168.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by Von Platen & Dick Company, a corporation, against Chicago Veneered Door Company, a corporation, upon a claim for damages arising out of purchase of doors from defendant. Defendant filed a set-off claiming a balance due on his sale of doors to plaintiff. The trial court found that the plaintiff was not entitled to recover and directed a verdict in favor of the defendant for the amount of its set-off. From a judgment in favor of the defendant, plaintiff brings error.
    Abstract of the Decision.
    1. Sales, § 138

      -—when buyer not entitled to damages for nondelivery. In an action to recover an excess of costs to plaintiff over an alleged contract price at which defendant had agreed to furnish certain doors, where it appeared that plaintiff would not agree to pay for the doors, but only to give defendant credit on an alleged claim arising out of another sale, the plaintiff was not entitled to its claim for damages for defendant’s refusal to deliver, since there is no rule of law which requires a seller to deliver goods to a buyer where the buyer before delivery has notified the seller that he will not pay for them.
    2. Sales, § 97*—when buyer must reject goods for breach of contract as to quality or description. Where goods are not of the quality or description ordered, a purchaser should reject them within a reasonable time and not appropriate them to his own use.
    3. Sales, § 401*—when evidence insufficient to charge seller for worh done on goods sold. Where a plaintiff attempted to charge a defendant with the cost for labor, etc., in sandpapering and putting in condition, agreed upon, a lot of doors sold and delivered by defendant to plaintiff, it. appeared that plaintiff had the doors for about eight months without making any complaint concerning their condition, and the testimony tended to show that the exposure of the doors during such winter months would roughen them, the evidence was insufficient to charge defendant with the expense of removing the roughness in question, caused by the plaintiff’s own act.
    Robert W. Dunn, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease, Charles O. Loucks and Vernon R. Loucks, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

4. Sales, § 329 —when evidence justifies a directed verdict for seller. Where the trial court was properly of the opinion that plaintiff was not entitled to credits claimed, and the items of amounts, dates of delivery and prices of defendant’s statement of set-off were not in dispute, it did not err in directing a verdict for the amount of the defendant’s set-off, the correctness of the set-off being admitted under the pleadings in the case and the testimony of the opposite party.


text:
    P. E. Short, Appellee, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 20,229.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by P. E. Short against Oregon Short Line Railroad Company to recover damages caused by the death of a number of sheep belonging to plaintiff at a stopping point for feeding during transportation from Wyoming to Chicago. It was claimed that the sheep died from eating poisonous weeds in the pasture furnished by the defendant, and the negligence alleged and sought to be proved was the furnishing of the kind of pasturing in which they were placed. From a judgment in a certain sum, in favor of the plaintiff, defendant appeals.
    The entire shipment numbered 1,996 head of sheep. Grand Island, Nebraska, the place in question, was the third feeding point from the initial point of shipment. The sheep arrived there in good condition about 4 p. m., June 23, 1909, were unloaded and placed in a pasture. On the following morning 133 of the sheep were found to be dead, or nearly so, were badly bloated and frothing from the mouth and nose. The remaining sheep were in bad condition, and 29 of them died after leaving Grand Island.
    • The evidence showed that the pasture in question was part of the Grand Island stock yards, containing 1,500 acres of pasturage, divided into 25 different inclosures by wire fences. There were 25 acres in this particular pasture field, which is called No. 104, and there was ample room and pasturage for several times the number of sheep placed therein on this occasion. The vegetation in this pasture field was similar to that in all the other pastures, all of which had been broken up and sowed in the fall and winter of 1906 and 1907 in Kentucky blue grass, English blue grass and other grasses of a kind usually furnished for feeding. Most of the pasture was in blue grass and there was a sprinkling of some common weeds, like the smart weed, pig weed, etc., but weeds were very scarce. The vegetation in general was luxuriant and adapted to the proper feeding of sheep. It had been used for this purpose for the two previous years. Many thousand head of sheep and also many horses grazed in the pasture during the summer of this occurrence. The horses were not affected in any way, and while some of the sheep died, yet the number was less than the normal death rate of sheep.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellee; Franklin Raber, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 237&emdash;when not liable for loss resulting from pasturing sheep en route. Where it appeared that the owner of sheep was traveling with the shipment and that he was an experienced sheep man, knowing their habits and results of feeding, and he saw the pasture in question in daylight and made suggestions about it and knew its character, it was held, if there was any negligence in connection with the duration of the period of feeding, the shipper and owner was guilty of such contributory negligence as would bar a recovery for loss of sheep due from negligence in placing them in a rich pasture and permitting them to overeat.

2. Carriers, § 235*&emdash;when not negligent in providing pasture for sheep. In an action to recover damages for loss of sheep through eating in a pasture furnished by a defendant carrier, the evidence is held to fail to show in the pasture anything which, in itself, was harmful for sheep to eat and to charge defendant with negligence with reference to the kind of pasture furnished.


text:
    Maywood Trust & Savings Bank, Appellee, v. Margaret B. Marshall, Appellant.
    Gen.-No. 20,265.
    (Dot to Tbe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Trial of right of property by Margaret B. Marshall against Maywood Trust & Savings Bank, which held the property under a writ of attachment. In the justice court a decision was entered adverse to plaintiff, when she took an appeal to the Circuit Court. From a finding in favor of the attaching creditor, plaintiff appeals.
    The only testimony was that of defendant, who testified concerning the transaction of the chattel mortgage from Hiram Brown and wife; in the mortgage the furniture was described as in apartment “D-l, 404 South Ashland Blvd., Chicago, Cook County, Illinois.” Subsequently the Browns left this apartment and went away. It was not known where. Plaintiff afterwards received a writing signed by Hiram Brown, addressed: “To whom it may concern,” purporting to give authority to “Messrs. Marshall & C'o.” to gain possession of such furniture “as they are entitled to under'the terms of a chattel mortgage.” Afterwards she was notified by one W. L. Barth that he had been directed by “the Browns to turn over certain effects” covered by a chattel mortgage she had. She went to Mr. Barth’s house and found there some articles of ordinary household furniture. She left them there, taking away only a picture, which was not levied upon by the attachment writ. She further testified that “I do not know of my own knowledge that the articles found at Mr. Barth’s house in Maywood which I have described are the same articles described in the mortgage as contained in ‘Apt. D-l’ of 404 So. Ashland Blvd. I never saw them before I went to Mr. Barth’s house.”
    Abstract of the Decision.
    1. Chattel mortgages, § 209

      —when evidence insufficient to identify property. Where a chattel mortgage covering ordinary-household furniture described the furniture as in a certain apartment upon a certain street and the mortgagee testified that she did not know of her own knowledge that the articles in question were the articles described in her chattel mortgage as contained in the apartment so described, the evidence is held insufficient to establish her right of property in the furniture in question which had been seized under an attachment writ.

      Emery S. Walker, for appellant.
    Ode L. Rankin, 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 McSurely

delivered the opinion of the court.

2. Chattel mortgages, § 210 —burden of proof. Where a right of property in certain household furniture, held under an attachment writ, is -set up by the holder of a chattel mortgage, it is incumbent upon such mortgagee to prove that the furniture in question is the same furniture as that covered by the chattel mortgage.

3. Chattel mortgages, § 209*—effect of failure of mortgagee to show interest in property. Where a mortgagee sets up a right of property in chattels taken under an attachment writ, it is of no concern of the mortgagee as to who is awarded title in the property, so long as the claim under the chattel mortgage is denied for insufficient identification of the property in question.


text:
    Simon Harpman, Appellee, v. Julius Andalman, Appellant.
    Gen. No. 20,286.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Suit in attachment by Simon Harpman against Julius Andalman alleging that defendant was about to fraudulently conceal, assign or otherwise dispose of his property or effects so as to hinder or delay creditors. Both by general and special verdicts the jury found for plaintiff and judgment was entered on the verdicts. To reverse the judgment, defendant appeals.
    Joseph H. Landes, for appellant; Jacob Cohen, of counsel.
    Adler & Lederer, for appellee.

      Abstract of the Decision.
    1. AttaoeCment, § 246

      —when finding on attachment issue warranted 6y the evidence. In attachment against defendant on the ground that he was about to fraudulently conceal, assign or otherwise dispose of his property, findings of the jury in favor of plaintiff held sustained by "the evidence, there being evidence tending to show that defendant operated a junk yard, that he owed plaintiff for money loaned, and that after demands were made for payment defendant told plaintiff he was going to dispose of his business so that plaintiff could recover nothing, and it also appearing that soon thereafter the materials of the junk yard were removed, and one witness testified that “the wagons were going back and forth all day long” hauling scrap metal from the yard until there was hardly anything left.
    2. Execution, § 107*—when motion for stay properly denied. Where a judgment was recovered against a defendant in attachment, the judgment providing only for a special execution and plaintiff being entitled to an execution against the garnishee, held that a motion by defendant for a perpetual stay of execution was properly denied, though defendant was recently discharged in bankruptcy and an execution might be levied on other property, where the defendant did not properly limit his motion to such property.

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

   Mr. Justice McSurely

delivered the opinion o‘f the court.


text:
    Baltimore Trust Company, Appellee, v. Consolidated Adjustment Company, Appellant.
    Gen. No. 20,306.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of tlie Case.
    Action by Baltimore Trust Company against Consolidated Adjustment Company on a contract of guaranty. To reverse a judgment in favor of plaintiff, defendant appeals.
    Abstract of the Decision.
    Guabarty, § 13

      —when evidence' sustains finding as to happening of contingency. Where an adjustment company entered into a contract of guaranty with a client to collect within a certain time a certain sum from the claims listed with it or to refund the initial fee paid to it by the client, and the contract contained an alternative provision that the company might continue its service beyond the time mentioned until it could reasonably determine that an equitable adjustment of the claims listed could not be secured, held in an action for a breach of the guaranty that a finding of the jury that it had been reasonably determined that an adjustment of the claims could not be secured was sustained by the evidence.
    The contract involved in this case was substantially the same as that passed on by the Appellate Court in Pritz v. Consolidated Adjustment Co., 189 Ill. App. 287, and the material parts of the contract appear in the opinion filed in that case. On the question whether the defendant under the terms of the contract had the right to continue the service until it recovered the amount of the guaranty, the decision in the Pritz case, supra, was held conclusive.
    The contract in this case contains an alternative provision which was not in the Pritz contract and is to the effect that the services should be continued “until said company shall reasonably determine that an equitable adjustment of the claims listed hereunder cannot be secured.?? Evidence was submitted to the jury on the question whether such contingency had happened and the jury returned a verdict in favor of plaintiff.
    Delavan B. Cole, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Fred Miller Brewing Company, Appellee, v. Moir Hotel Company and Harry James, Appellants.
    Gen. No. 21,070.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Bill by Fred Miller Brewing Company against Moir Hotel Company and Harry James to restrain defendants from violating a written contract between the complainant and the Hotel Company whereby the said Hotel Company agreed to use and advertise only the domestic draught beer manufactured by complainant on certain premises, described in the contract as “property at the southeast corner of Clark and Madison streets, in the City of Chicago, County of Cook and State of Illinois, now occupied by the Morrison Hotel and Addition,” of which the Hotel Company “is the owner or lessee under long-term leases,” and “the premises at No. 65-67 West Madison Street * * * now occupied by the Edelweiss Restaurant.”
    The bill prayed for an injunction restraining defendants from using or advertising other than complainant’s beer at No. 17 South Clark street, which was occupied by the Hotel Company under a short-term lease, and was located on Clark street south of the premises occupied by the hotel. The court granted an injunction pendente lite restraining defendants from using, selling, consuming or giving away upon the premises No. 17 South Clark street any domestic draught beer other than complainant’s and from displaying any advertising matter upon the premises which would advertise any other such beer manufactured by any person other than the complainant. To reverse the decree, defendants appeal.

      Abstract of the Decision.
    Contracts, § 215a*—agreement to use a certain kind of beer on certain premises construed. A written contract between a brewing company and a hotel company whereby the latter agreed to use and advertise only the domestic draught beer manufactured by the brewing company on premises now occupied by a hotel and addition, of which the hotel company “is the owner or lessee under long-term leases,” and other premises occupied by a certain restaurant, held not to cover premises in possession of the hotel company under a short-term lease and not used or intended to be used for hotel purposes, and it also appearing that it could not be included in the premises occupied by said restaurant.
    John G. Campbell, for appellants.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett and R. S. Tuthill, Jr., of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Brown

text:
    Margaret T. Clarke, Plaintiff in Error, v. Julius S. Taylor, Defendant in Error.
    Gen. No. 20,144.
    1. Appeal and error, § 578

      —-when findings of master are assumed to be correct. Where no exception is taken to findings of facts, it will be assumed on appeal that the master states them correctly.
    2. Limitations of actions, § 117*—-when action on note is barred. Evidence held to show that liability of a defendant on a note and mortgage to his sister, given in settlement of her claims to the estate of their father, was barred by the statute of limitations, it appearing that a payment to the plaintiff by the defendant’s son was not the act. of such defendant or by his authority.
    3. Trusts, § 43*—when resulting trust arises. Where a brother gave his sister a note and mortgage in settlement of her claims to the estate of their father, and such mortgage was not recorded or paid, and the defendant subsequently sold the property covered by the mortgage, but not until after the mortgage had ceased to be enforceable, no trust arise as to the money received by him in favor of the sister.
    4. Trusts, § 66

      —when constructive trust arises. Evidence held insufficient to show that a settlement entered into by a brother and sister, whereby the former gave a note and mortgage to the sister for her share in their father’s estate, was so affected with fraud that a constructive or resulting trust arose in favor of the sister, although the valuations placed on the property were unfair to the sister.
    5. Trusts, § 238*—when action to enforce trust is not barred by lapse of time. Where a brother gave a sister a note and mortgage for her share in their father’s estate, and also for a sum entrusted to such father, and in an action for an accounting it appeared that the note as such was unenforceable against the defense of limitations, the evidence did not show intelligent knowledge or assent by the sister to the destruction of the constructive trust raised by the assumption of possession of the money by the son and heir of the original trustee, and such trust fund was not converted into an ordinary debt, wherefore the defense of limitations was not available as to the money loaned.
    Error to the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Edgar L. Masters, for plaintiff in error.
    Louis Lagger, for defendant in error; William T. Payne, of counsel.

      See Dlinois 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 Brown

delivered the opinion of the court.

This writ of error is sued out to reverse a decree of the Superior Court of Cook county, dismissing for want of equity a bill brought by the complainant, Margaret Taylor Clarke, against Julius S. Taylor, her brother, for an accounting and to enforce the execution of an alleged trust.

Assuming on all disputed points "but one, to be hereafter discussed, the correctness of the defendant’s version of the occurrences and transactions resulting in the litigation herein involved, those occurrences and transactions, as shown by the pleadings and evidence, were:

When the father of the complainant and defendant, one Julius Taylor of Kankakee, died in 1891 he left only these two children his heirs. The complainant was a widow. Her husband had died a little more than two years before. He left a life insurance policy of $5,000, on which his widow, the complainant, received $4,800. Her father, Julius Taylor, learning that she was about to lend this money on mortgage of real estate in Chicago, suggested that she “let him have it,” leaving with her no note or contract specifying time, terms or conditions of payment or interest, except that he said he would “give her the same interest that she would get there.” Some piece of paper, which the father said pertained to complainant’s sister-in-law’s land, but which complainant never read, was handed by the father to his daughter and immediately returned by her to him, she had “so much confidence” she says. The father paid no interest nor returned any part of the principal, but, as the defendant says, in the original sworn answer filed by him in this cause, “there was still at his father’s death in his hands * * * the sum of $4,800.” This declaration the defendant repeated in the same language in an amended answer filed six months later and shortly before he gave a deposition in this cause.

The father left of personal estate, however, only $430, which was not enough to pay funeral expenses and doctor’s hills and “debts that he had around town.” He did, however, leave a house and lots adjoining in Kankakee and a farm of three hundred and twenty acres.

In default of a will which was supposed to exist, but which could not be found, the brother and his widowed sister undertook to settle affairs between them without the interference of the Probate Court. It is evident from the character of her testimony and by her course of proceeding that the complainant was unversed in business. Whether or not her brother, the defendant, was so versed, does not appear, otherwise than that he had been a traveling salesman and also in business for himself in Indiana. This was the settlement he made with his widowed sister: He took the farm at an agreed valuation of $16,000, and gave his sister the Kankakee house and lots at an agreed valuation of $6,000. Quitclaim deeds were exchanged to vest these titles. As at these valuations, each would have been entitled to $11,000 worth of property, the defendant admitted himself as owing $5,000 “owelty” to the complainant. At the same time, if the $4,800 was in his father’s hands, he must have taken possession of that. He did not, however, turn it over to his sister, to whom it belonged. He says, in his deposition: “I assumed that $4,800.” He gave her a note for $9,800 to represent the $5,000 and the $4,800. It ran thus:

“Kankakee, Ills., May 11th, 1891.
On or before five years after date I promise to pay to the order of Margaret T. Clarke $9800 Nine Thousand Bight Hundred Dollars with interest at the rate of six (6) per cent, per annum. Value received. Interest payable semi-annually.
Julius S. Taylor.”

To secure this note of $9,800 the defendant gave his sister a mortgage on one-half the farm, that is, on one hundred and sixty acres. The valuation on which the settlement was made, assuming an equal or average value per acre of the farm, would have made this quarter section worth $8,000—not a very satisfactory security for $9,800.

The deed to the house and lots in Kankakee running to Margaret T. Clarke was recorded in Kankakee county on May 11,1891.

On Mrs. Clarke’s examination before the master in this cause, the deed was shown her by counsel and she was asked:

‘ ‘ Q. Is this the deed to the town house in Kankakee that you got? A. Yes, sir. That is the only deed I ever had.
Q. And you recorded that? A. Yes, sir.”

Mr. Hunter, the lawyer who was called in and drew these papers—note, quitclaim deeds and mortgage— testified that they were all executed at the same time at the Taylor house in Kankakee and that he does not remember taking possession of any of them to carry to record or otherwise afterwards. As the quitclaim deeds are dated May 9th, and the one to Margaret Clarke (which alone appears in the transcript, although both were introduced in evidence) was acknowledged before Hunter on May 9,1891, while the note and mortgage are dated May 11, 1891, and the latter acknowledged on that date before Mr. Hunter, it would appear that Mr. Hunter was mistaken in his testimony. He was asked if he did not remember that Julius S. Taylor, the defendant, handed him the two quitclaim deeds and that he took them back to the recorder’s office, which was next to his own in the court house, and had them recorded, and replied that he did not so recollect, but that he would not say that was not the fact. The significance of this testimony about recording lies in the fact that while both quitclaim deeds were recorded—the recorder’s certificates showing that they were recorded at practically the same time—the mortgage was never recorded; and for this neglect the complainant has suffered. The defendant’s counsel strenuously insists on the “laches” of the complainant, who must have known, he says, of the necessity of recording the mortgage because she recorded the quitclaim deed.

It does not appear in the evidence, but it is stated in the sworn bill of the complainant; and seems to be assumed as true, that the complainant sold the house and lots in Kankakee years afterwards for $4,000. She alleges she used her best efforts to obtain a better price. The defendant had better success. He is careful to say in his answers and in his testimony that he did not advise his sister about recording her mortgage. We must assume, in the lack of evidence to the contrary, that he neither advised her to record nor to abstain from recording the mortgage. His testimony, however, that he does not know what Mrs. Clarke did with her mortgage cannot be considered as meaning that he did not know that she had left it unrecorded. A man does not “traffic,” as he admits in his sworn answer he did, in land encumbered for more than it is worth at his own valuation, without knowing that the prior encumbrance is not in the way of his negotiations. He had not forgotten his sister’s mortgage nor was he ignorant of its existence when, because of its absence from the record, he was enabled, as the master finds, to sell to “a bona fide purchaser” “the whole of said lands, including the land. on which the complainant held her unrecorded mortgage for $26,860.”

Counsel for defendant deprecates any complaint being made of the “trafficking” admitted by the defendant. He says:

“There is no merit in such complaint, because if there was no fiduciary or trust relation created in or by the settlement in question, the parties must be held to have dealt at arms length. In such event each of the parties had the undoubted right to subsequently deal in the title of their own respective holdings. No authority has been or can be cited that a person giving a mortgage is estopped from further encumbering his land, or from selling the same. Neither does the law require the mortgagor to see to the recording of the mortgage he gives.”

If this is to be understood as meaning that because the law gives to an innocent subsequent purchaser or encumbrancer, ignorant of a prior mortgage, a priority of right over such mortgage, the mortgagor is not guilty of fraud towards the prior mortgagee when, in effect, he deliberately steals his or her security,—we must dissent. It is a penal offense to deal in that way with personal property mortgaged. We see no greater crime morally in that than the defendant in this case committed towards his sister.

The findings of the master in relation to payment on the note of $9,800 which the defendant had given to the complainant, and the dealings of the defendant with the land which he had mortgaged to her to secure it, are these, when chronologically arranged:

November 11, 1891, he paid the complainant $319.

July 6, 1894, he placed a mortgage on the whole three hundred and twenty acres (including the one hundred and sixty on which the complainant held a mortgage), the amount not stated. October 20, 1894, this mortgage was released.

February 4, 1895, he paid his sister $50 more; November 4, 1895, another $50.

August 19, 1897, he placed a mortgage on one hundred and sixty acres of his land (which one hundred and sixty acres is not mentioned), which mortgage was not released until March 5, 1906.

Meanwhile, in June, 1898, and November, 1898, he made his last payments to his sister—$25 on the first date and $50 on the second.

September 10, 1902, he placed a mortgage on the whole three hundred and twenty acres for $14,000, which on October 14,1907, was released. But on October 5, 1907, he mortgaged “one-half of said lands for the sum of $7,000 and afterwards, on November 12, 1910, he and his wife made an absolute conveyance of the whole of said lands, including the land on which the complainant held her unrecorded mortgage, to a bona fide purchaser for the consideration of $26,860, and since the making of said last mentioned conveyanee said Julius S. Taylor has had no right, title or interest in said lands.”

A s no exception has been taken to the findings of the facts and the dates of these specified mortgages and conveyance, we assume the master states them correctly, although we are somewhat at a loss on inspecting the record to see how the master ascertained precisely the date and extent of the final conveyance. With what we conceive may be a somewhat characteristic wavering of statement, the defendant has given several dates for it. In his deposition he says nothing about it, but in his sworn answer filed October 13,1911, he says that:

“On October 5, 1907, he mortgaged one-half of the said Three Hundred and Twenty acres for the sum of $7,000 and afterwards, on November 12,1910, together with his said wife, duly conveyed the same for a consideration of $26,860.”

This would apparently mean that he had sold only one-half his land on November 12, 1910. In his amended answer filed May 1, 1912, he makes the same statement in the same words, but immediately follows it with this allegation:

“And that since the said eleventh day of May, A. D. 1891, (the date of the mortgage to his sister) and the commencement of this suit he has sold and conveyed to other persons the whole of said Three Hundred and Twenty acres and is not now the owner or possessor of any part thereof.”

This may be a clerical error, and insertion of the word “before” may have been meant between “and” and “the commencement,” but we are puzzled to account for the assertion further on in the amended answer, “that from the said ninth day of May, A. D. 1891, until the month of December, A. D. 1906, this defendant continuously resided upon and wholly occupied and held the sole possesion of the whole of the farm lands * * # and that the said grantees of this defendant to whom he conveyed the whole- of said farm lands as aforesaid had a like adverse possession and a like actual residence upon the whole of said farm lands from and including the said month of December, A. D. 1906; that when.this defendant surrendered the possession of the said farm lands to his said grantees because of his said conveyance to them in the said amount last above mentioned, the said g’rantees of this defendant took immediate possession and forthwith took up their residence upon said farm lands and held the same as aforesaid.”

However this may be, there is no doubt the land is no long’er in the defendant’s hands or available for the complainant’s security. But this is not all of her misfortune. The defendant insists and the master and court below have found that all personal liability of the defendant to her has also vanished.

The last payments of either principal or interest, as above stated, were made in 1898, and left due, if all the payments were applied on the.principal and no account taken of interest, over $9,300. In December, 1910, the complainant asked for money from the defendant, but the defendant’s son opened the letter and without consulting his father or obtaining authority from him furnished his aunt from his own funds with $50, which the complainant accepted as a loan, the master finds; and when a further demand by the complainant was made on the defendant he invoked the protection of the (to him) beneficent statute of limitations, which he sets up and insists on in his answer in this case.

This statement of the case, as we said in the beginning, assumes the accuracy of defendant’s version of these matters, except as to the relation between the complainant and her father in the first instance, and between the complainant and the defendant after-wards, as to the $4,800.

The defendant maintains that his father borrowed the $4,800 from Mrs. Clarke and that he, the defendant, merely assumed the debt, and evidenced it, as his father had not, by a promissory note, and that no trust relation existed between any of the parties as to this money. It is maintained for him by counsel that when the father died this $4,800 was not in his hands, but had been spent or paid out, and that the defendant in his testimony means, when he says that his father left only $430 of personal estate, that no such sum of $4,800 was found. We think he has estopped himself by his answer, which we have quoted, from putting such a construction on his meager testimony in this regard. And there are other considerations which are of force in this matter. If the $4,800 was a- simple loan to the father, why was no note given? Why was no interest paid? Why was no time set for its repayment? It seems to us more reasonable to suppose that the father—an old resident of Kankakee and a prominent member of the Presbyterian Church there —thought that he could take better care for his daughter of her “widow’s mite” than she herself, unversed in business and the methods of mortgage brokers, would be likely to do.

As to the money being on hand when the father died and its having been taken possession of by defendant, there are also, to our minds, objections to the theory to the contrary advanced in behalf of the defendant. If the $4,800 was not on hand, it was, whether trust funds or not, a claim against the estate. The defendant was under no obligation, if he did not find the money and did not take possession of it, to make himself personally responsible for it to his sister. His subsequent conduct does not strongly tend to establish any presumption that he would go beyond his legal obligations to help “a widow in her affliction” even when that widow was his sister. The valuation he put on the farm was $16,000 and on the house $6,000. It is the theory of the defense that they were reasonable valuations at the time. Then the value of the estate was $22,000 less $4,800, which should have been paid from it to Mrs. Clarke at the earliest possible moment. The residue would have been of the value of $17,200. One-half of it, or $8,600, would have been Mrs. Clarke’s and one-half, or $8,600, the defendant’s. If she took the Kankakee house at $6,000 she would have been entitled to only $2,600 more from her brother had he taken what remained of the estate. If, then, he had come to an agreement with his sister by which he was to substitute himself for the estate as the debtor, and to retain the farm intact instead of having it sold to pay the claim of $4,800 against the estate, he would have been indebted to her only in the sum of $4,800 plus $2,600, or $7,400, instead of in the sum of $9,800. The settlement that he actually made, assuming that he intended to carry it out without fraud, would, in that case, as the counsel for complainant points out, mean that he gave his sister values of $15,800 and took values of $6,200;—when the payment of her just dues and an equal division of the residue would result in her obtaining the value of $13,400 and he the value of $8,600. We find it difficult in the light of his subsequent conduct to believe that he thus treated his own interests.

In this litigation the complainant, as we understand, has maintained that the defendant should account to the complainant: First, for the $4,800 which she asserts was entrusted to her father and at his death taken possession of by the defendant, who thereby became a trustee for her in regard to it; second, up to the amount of the remainder of the $9,800 note for the proceeds of the farm so far as those proceeds were moneys obtained by the defendant for land which he had mortgaged to her to secure owelty, and then sold regardless of the mortgage; third, in addition to this, for half the proceeds of the farm in so far as those proceeds exceeded the value of the house and lots and the owelty which he allowed her in computing the amount of the note he gave her in 1891,—this last demand being predicated on the allegation either that no final valuation was agreed on, or that it was agreed that anything obtained by the defendant on a sale of the farm over and above the valuation placed on it by him in the adjustment should accrue to the benefit of the complainant equally with the defendant; fourth, for interest upon these amounts to the present time.

In the alternative the complainant says that if the settlement in 1891 between the complainant and defendant is to be considered as one which negatives or" excludes the theory of a trust, the note of $9,800 is still enforceable, the last payment having been made thereon, as she alleged, in December, 1910, and not earlier, and the running of the statute of limitations having been thereby tolled. The master found against all these contentions and the chancellor confirmed the report, overruled all the objections and dismissed the bill.

With some of the findings of the master and with the chancellor’s disposition of some of the exceptions to his report, we are compelled to agree. There seems no doubt from the evidence that the delivery of $50 to the complainant in December, 1910, was not the act of the defendant or by his authority. He has not manifested at any time since the period of limitation ex-piped a -disposition to do anything which should recognize either a legal or moral right in his widowed sister to the amount of the note he gave her, partly for her husband’s life policy and partly for her share in her father’s farm. He was under no obligation even to plead the statute in this litigation, but he has done so and we must hold that the liability of the defendant on the note of $9,800 itself, as a note, disjoined from any question of a trust in its consideration, is unenforceable, and would have been so unenforceable in the face of the defendant’s choice to plead the statute to it, at all times since November, 1908; and also, that since that date no foreclosure could have been made of the mortgage securing the note.

Therefore, although there is at least plausible ground for arguing, as the complainant does, that money received by a mortgagor for land, which he knows to be subject to his unpaid, unrecorded and enforceable mortgage, can be considered as received by him with a resulting trust in favor of the mortgagee attaching thereto, we cannot hold, in face of the finding that the defendant did not sell his land and receive the consideration for it until after the mortgage had ceased to be enforceable, that any trust was fastened upon the money so received by him.

Again, whatever reasons for suspicion may be found in the evidence that the valuations of $16,000 and $6,000, placed on the farm and house and lots respectively in 1891 by the brother and sister, were unfair to the complainant, the evidence as a whole falls short of proving that which would be necessary to so infect the arrangement with fraud that a constructive or resulting trust would be raised.

We are accordingly in agreement with the master and with the court below as to all but the $4,800 which the complainant derived from her husband’s life insurance policy, entrusted, as we think, for safe-keeping and care to one who stood in a position naturally inviting her trust and confidence, and after his death, as we also think, taken possession of by her remaining nearest relative and natural protector.

As to this $4,800, the only question after these conclusions remaining for us to decide is, whether its inclusion on the note of $9,800 secured by a mortgage which is now, as well as the note, treated by the defendant as though it were never in existence, destroyed the trust character of the funds thus acquired by him, so that, because the note as such is unenforceable as a note against the defense of limitation, the complainant has lost all remedy in relation to them.

Mature consideration has convinced us that it has not. Each case of apparent or alleged conversion of a trust fund into an ordinary debt must be considered with regard to its own surrounding circumstances. In this case the relations and situation of all the parties involved and the precedent, contemporaneous and subsequent actions of them all, make us believe that there was no intelligent knowledge or assent by the complainant to the destruction of the constructive trust, which the assumption of possession of the money by a son and heir of the original trustee, raised. To quote from a distinguished text writer (Perry on Trusts, 6th Ed., vol. 1, sec. 245):

“During the possession and management by such constructive trustees they are subject to the same rules and remedies as other trustees, and they cannot avoid their liability by showing that they were not in fact trustees, nor can they set up the Statute of Limitations.”

We think the court below erred in not sustaining the first, second, third and sixth exceptions to the master’s report, and in confirming and approving the master’s report in all respects and overruling all the complainant’s exceptions thereto and dismissing the complainant’s bill for want of equity, and the decree is therefore reversed and the cause remanded to the Superior Court with directions to sustain the exceptions to the master’s report above indicated, and to enter a decree requiring the defendant, as trustee, to account to the complainant for $4,800 with interest at five per cent, from May 11, 1891, which is found by us to be a date subsequent to his taking possession of the same, taking credit, however, for the payments proven to have been made and proper interest allowance thereon, and to pay over the sum and interest thus found remaining due to her.

Reversed and remanded with directions.


text:
    J. A. Lucas, Defendant in Error, v. Malcolm Lamont et al., trading as Lamont & Clasen, Plaintiffs in Error.
    Gen. No. 20,182.
    (Not to be reported in full)
    Abstract of the Decision.
    Partnership, § 249

      —when judgment in favor of individual is erroneous. A judgment for brokerage fees for the sale of real estate in favor of an individual is erroneous where the evidence shows that the claim for such fees was that of a partnership.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Action by J. A. Lucas against Malcolm Lamont and E. Norman Ciasen, trading as Lamont & Ciasen, to recover a brokerage fee for the sale of real estate. Plaintiff recovered a judgment for $131.25, and the defendants bring error.
    Jennings & Fifer and Andrew Hummeland, for plaintiffs in error.
    William J. Ammen, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Jean E. F. Crowther, Defendant in Error, v. Ellen R. Bell and Ruth J. Maurer, Plaintiffs in Error.
    Gen. No. 20,222.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 13

      —when question of negotiability of instrument is immaterial. The question whether an instrument meets the requirements of the Negotiable Instruments Act as to certainty of time of payment is immaterial where suit, on such ■instrument is brought by the original payee, the money being unpaid and overdue at the time of suit.

      Error to the Municipal Court of Chicago; the Hon. Joseph P. Rapeebty, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Action by Jean E. F. Crowther against Ellen R. Bell and Ruth J. Maurer on the following written instrument:
    “August 4th, 1908.
    For 80 shares of stock in the Marinello System I promise to pay to Jean E. F. Crowther $1,000, $500 now and commencing in November, 1908, $25 a month until paid.
    Ellen R. Bell,
    Ruth J. Maurer.”
    Plaintiff recovered a judgment for $515, and the defendants brought error.
    William N. Marshall and Martin H. Foss, for plaintiffs in error..
    Castle, Williams, Long & Castle, for defendant in error; Howard P. Castle, of counsel.
    Mr. Presiding Justice Brown delivered the opinion of the court.

      2. Biles and notes, § 50

      —when defense of want of consideration is not available. The defense of want of consideration for a note is not available where it appears that the payee sold stock in a certain business to the maker, even though the stock was not .as valuable as the purchaser thought, or was worthless, there being no evidence of fraud.
    3. Corporations, § 132*—what is nature of certificate of stock. Certificates of stock are but evidence of its ownership.
    4. Bills and notes, § 57*-—when defense of partial failure of consideration not available. In a suit on a promissory note given for stock in a corporation, it could not be contended that the consideration had partially failed because the certificates of stock were not delivered before suit was brought, since the stock would become the property of the defendant on payment.
    5. Bills and notes, § 48*—what defenses are available to accommodation maker. An accommodation maker who is liable on a note given for the purchase of stock cannot avoid liability by contending that she received no consideration for signing the note.

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

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


text:
    Berkshire Warehouse Company, Appellee, v. Hilger & Company et al., on appeal of Edward Hines Lumber Company, Appellant.
    Gen. No. 20,234.
    (Kot to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Suit by the Berkshire Warehouse Company, a corporation, against Hilger & Company, a corporation, and various other defendants for the determination and settlement of various mechanics’ liens. The Edward Hines Lumber Company filed an intervening petition or answer asserting its right to a lien to the amount of $857.59, on the premises, for lumber furnished the general contractors, Hilger & Company, and used in constructing certain improvements for the complainant. From a decree dismissing the intervening petition of said Edward Hines Lumber Company, for want of equity, it appealed.
    Abstract of the Decision.
    1. Appeal and eeeob, § 1325

      —when findings of lower court are :presumed true. Findings of a master and court which are not attacked below or in the assignments of error will be assumed to be true on appeal.
    2. Mechanics’ liens, § 94*—when notice of material man must he given. Under section 24 of the Mechanics’ Lien Act, (J. & A. If 7162) a notice of the furnishing of materials “may" be given at any time after the subcontractor or party furnishing labor or materials has made his contract, but such notice “shall” be given within sixty days after the completion thereof.
    3. Mechanics’ liens, § 90*—what is effect of contractor’s statement to owner as to liens. Under section 27 of the Mechanics’ Lien Act, (J. & A. U 7165) a subcontractor whose name is omitted from a statement by the original contractor, such as is required by section 5, even though the statement is false and defective because of such omission, cannot enforce a claim or lien against an innocent owner who has not in his hands sufficient money due or to become due the original contractor to satisfy both such claims, and all the claims which have not been so omitted from the contractor’s statement, unless he can show that before the payments to the contractor or subcontractors named in the scheduled statement, which have caused the deficiency, he has served such a notice as is provided for by section 24 of the Act (J. & A. If 7162).
    Adams, Crews, Bobb & Wescott, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    E. M. Willoughby et al., trading as Willoughby & Company, Defendants in Error, v. Philip S. Brown, Plaintiff in Error.
    Gen. No. 19,428.
    1. Principal and agent, § 113

      —when agent may employ brolcer. Authority to sell or lease does not imply authority in the agent to employ a broker.
    2. Principal and agent, § 168*—when agent is individually liable. An agent who employs a broker to procure a lessor for premises is individually liable for the services of such broker, when his act is not authorized, even though such agent has no interest in the property involved.
    3. Appeal and error, § 1238*—when appellant cannot complain of error below. In a suit by brokers for commissions in procuring a tenant against an agent and an owner of property, it could not he contended that there could he no recovery against the agent alone, when the plaintiff, before verdict, dismissed the suit as to the owner.
    4. Municipal corporations, § 103*—when ordinance must be proved. The court cannot take judicial notice of an ordinance.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Edwy Logan Reeves, for plaintiff in error.
    Adler & Lederer, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment entered, on a verdict for plaintiffs against plaintiff in error Brown in the Municipal Court on an agreement to pay plaintiffs $846 as commissions for finding a tenant ready and willing to accept a lease for ninety-nine years of certain real estate on the. terms offered by Brown.

Mary E. Eyan was the owner of the real estate and had given Brown a power of attorney to sell and convey the same. The power of attorney did not give authority to lease, nor did it give authority to employ a broker. Brown stated to plaintiffs that he was authorized to lease said real estate. Authority to sell or lease does not imply authority in the agent to employ a broker. Doggett v. Greene, 254 Ill. 134.

The promise by Brown to pay defendant for this service in finding a man ready, able and willing to accept a lease was binding on him individually. Sadler v. Young, 78 N. J. Law 594.

It was not necessary that Brown have any interest in the property placed by him in the hands of plaintiffs, to bind him personally by a promise to pay commissions. Payne v. Twitchell, 81 N. J. Law 193.

It is a sufficient answer to the contention that as the suit was originally against Brown and Mrs. Eyan, there could be no recovery against Brown alone, that the plaintiff, before verdict, dismissed as to Mrs. Eyan. Malleable Iron Range Co. v. Pusey, 244 Ill. 184.

There is in the record no ordinance requiring real estate brokers to be licensed.. This court cannot take judicial notice of an ordinance, and the contention of plaintiff in error that the judgment must be reversed because no license was proved is without merit.

We think that on the facts shown by this record the jury properly found a verdict for the plaintiffs, and the judgment is affirmed.

Affirmed.


text:
    Patrick J. McDermott, Administrator, Plaintiff in Error, v. John Griffiths et al., trading as John Griffiths & Son, Defendants in Error.
    Gen. No. 19,769.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 170

      —when master is hound hy notice to agent. Knowledge of a superintendent of the presence of gas in wells used for the construction of a building is knowledge of the master.
    2. Master and servant, § 609a*—what may he considered in determining master's negligence. In an action for the death of an employee caused by the presence of gas in a well used in constructing a building, the jury might consider all the circumstances attending the accident, and the acts and conduct of the defendants prior to such death, but the verdict could only properly turn on the question whether the defendants were guilty of negligence which caused or contributed to the death of the employee.

      Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Statement of the Case.
    Action by Patrick J. McDermott, administrator of the estate of Patrick Finnerty, deceased, against John Griffiths and George W. Griffiths, partners, trading as John Griffiths & Son, for wrongfully causing the death of Finnerty. From a judgment of nil capiat entered on a verdict of not guilty, plaintiff brought error.
    B. J. Wellman and Richard J. Finn, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendants in error; John Barton Payne and John D. Black, 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, flame topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

3. Negligence, § 191 —what are questions of fact. What'is reasonable care in a particular case depends on the circumstances of the case and is peculiarly a question of fact for the jury.

4. Master and servant, § 800*—when instruction as to place of worlc is erroneous. In an action for the death of an employee caused by the presence of gas in a well used in constructing a building, an instruction that the jury might find that the defendants were not guilty of negligence if they found that such defendants exercised reasonable care down to a reasonable time before the death of the employee, was erroneous.

5. Master and servant, § 800*—lohen instruction as to duty owing to servant is erroneous. In an action for the death of an employee caused by gas in a well used in constructing a building, an instruction that if the employee was ordered to work in another well, and was killed when he returned to the first well to obtain a tool that he had left therein, he was a mere volunteer or licensee, to whom defendants owed no duty except to restrain from wilfully or wantonly injuring him, was, in effect, an instruction to find the defendants not guilty, and was erroneous as deciding the issues of fact as to whether the deceased went into the well to obtain a tool, and whether such act was within his employment, as matters of law.

6. Master and servant, § 709*—what are questions of fact. Where an employee was killed by gas in a well when he returned to obtain a tool he had left therein, the questions whether he went down into the well to obtain such tool, and whether in so doing he was reasonably within the scope of his employment, should have been submitted to the jury.


text:
    John M. Gibbons, Defendant in Error, v. John F. Jurgensen and Fredericka Jurgensen, Plaintiffs in Error.
    Gen. No. 19,906.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 90

      —when broker is entitled to commissions. Evidence held to show that a real estate broker procured a purchaser for certain property and that the property was conveyed to another person, for money furnished by the purchaser, with the purpose of defeating the broker’s claim for commissions.
    Error to the Municipal Court of Chicago the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Action by John M. Gibbons against John F. Jurgensen and Frederieka Jurgensen to recover commissions for finding a purchaser for certain real estate of which the defendant Frederieka Jurgensen, the wife of the other defendant, was the owner. From a judgment for the plaintiff for $337.50, defendants brought error.
    James R. Glass and Warren B. Wilson, for plaintiffs in error.
    Emery M. Shaw, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    John D. Casey, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 19,987.
    (Not to be reported in full.)
    Abstract of the Decision.
    Steeet bailboads, § 132

      -—what are questions for fury in action for injuries. In an action for the death of an eight-year-old boy, the question whether, if the motorman of defendant’s street car had been operating his car with reasonable care and caution, he would have seen the decedent, on or so near the track as to be in danger of being struck by the car, in time to stop the car and avoid injuring him, and the questions whether the decedent was in the exercise of ordinary care, and whether the decedent’s parents exercised care for his safety, were questions of fact upon which the verdict of the jury was conclusive.
    Appeal from the Circuit Court of Cook county; the Hon. Jorra P. McGoobty, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the, Case.
    Action by John D. Casey as administrator of Solomon Morris against the Chicago Railways Company for wrongfully causing the death of plaintiff’s intestate, a boy eight years and eleven months of age. From a judgment for the plaintiff, defendant appeals.
    Charles L. Mahony and Frank L. Kriete, for appellant; W. W. Gurley and John R. Guilliams, of counsel.
    Cruice & Langille, for appellee; Daniel L. Cruice, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Angelo B. Pirola, Plaintiff in Error, v. Edward Fladmark, Defendant in Error.
    Gen. No. 20,184.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Appeal and error, § 1414

      —when finding of court is conclusive. In an action for services the question whether there was a bona fide dispute between the parties as to the amount due was a question of fact, as to which the finding of the court was conclusive, the evidence being conflicting.
    2. Accord and satisfaction, § 4*-—what constitutes accord, and satisfaction. In an action for services, if there was a bona fide dispute between the parties as to the amount due, and the plaintiff retained and cashed a check sent by the defendant having written on it words to the effect that it was the final payment for the work, such act amounted to an award and satisfaction.
    Error to the Municipal Court of Chicago; the Hon. Habry M. Fisher, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Suit by Angelo B. Piróla against Edward Fladmark. Plaintiff plastered a certain building for defendant at the agreed price of $1,828 and after the work was completed claimed $116 for extras. A check in final payment was mailed to the plaintiff and accepted when there was due plaintiff $200, exclusive of the claim' for extras, but the plaintiff claimed to have mailed another letter to the defendant accepting the check as a credit. From a judgment for the defendant, plaintiff brings error.
    H. P. Tuchscherer, for plaintiff in error.
    Charles Werno, for defendant in error.
    Mr. Justice Baker delivered the opinion of the court.

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


text:
    John Szremba by Helen Szremba, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,359.
    (Not to be reported in full.)
    Abstract of the Decision.
    Street railroads, § 86

      —when injury in collision is result of accident. Where a boy on the rear end of an electric truck with his feet hanging over the end of the bed was injured by being caught between such truck and a street car, due to the truck suddenly stopping when another vehicle was driven in front of it, the accident was such that the motorman could not be required to anticipate it, and the injury was not due to the negligence of such motorman.
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honoré, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Suit by John Szremba, a minor, by Helen Szremba, his next friend, against the Chicago Railways' Company to recover for .injuries received in a collision between a street car and an electric track. From a judgment for the plaintiff, defendant appeals.
    Joseph D. Ryan, William H. Symmes and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Hiram Blaisdell and A. H. Ranes, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Joseph Reeder, Defendant in Error, v. The West Side Trust & Savings Bank, Plaintiff in Error.
    Gen. No. 18,553.
    (Not to foe reported in full.)
    Abstract of the Decision.
    Appeal and ebeob. § 1414

      —when finding of court is not conclusive. Where a person claimed to have made a deposit of-$158.50 in a bank but received a credit for only $128.50, and produced a deposit slip from which it appeared that a mistake occurred in adding the amount of $57 to $71.50 so as to make a total of $158.50, and the evidence was conflicting as to whether the “5” in the item of $57 was written by the plaintiff or by the teller, held that the finding of the trial court that such figure was written by the teller was manifestly against the weight of the evidence, there being good ground for believing the contrary, wherefore a new trial would be ordered.
    Error to the Municipal Court of Chicago; the Hon. Habry P. Dolan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Suit by Joseph Reeder against The West Side Trust & Savings Bank to recover money claimed to have been deposited with the defendant Bank for which he had not received credit. From a judgment for the plaintiff, the defendant brings error.
    McEwen, Weissenbach, Shrimski & Meloan, for plaintiff in error; Jerome J. Cermak, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The Globe Association, Plaintiff in Error, v. Fannie F. Brega, Defendant in Error.
    Gen. No. 19,468.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 192

      —what remedy is available where lessor fails to heat premises. If a lessor fails to furnish heat as stipulated in a lease, the tenant may recoup the cost from the rent or sue upon the covenant.
    2. Landlord and tenant, § 192*—what may be shown in action for failure to furnish heat. In an action to recover sums expended by a lessee in heating leased premises, due to the lessor’s failure to furnish heat, the plaintiff is entitled to prove the failure to furnish heat, and testimony as to temperature is admissible.
    Error to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Statement of the Case.
    Suit by The Globe Association, a corporation, against Fannie F. Brega to recover sums expended in heating certain premises, due to the defendant’s failure and refusal to furnish heat, when the plaintiff’s lease required that the defendant lessor should furnish “ steam heat when necessary, from October 1 to April 30, for ten hours per'diem.”- From a judgment for the defendant, plaintiff brings error.
    Charles Daniels, for plaintiff in error.
    George W. Wilbur, for defendant in error,

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Vanderploeg & Kuiper and A. U. Thompson, Defendants in Error, v. Ivor Peterson (Defendant), G. A. Selven (Garnishee), Plaintiff in Error.
    Gen. No. 19,721.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Garnishment, § 64

      —when payment ly garnishee after attachment is justified. Whore a garnishee had made a contract with the debtor for the painting of a building, and attempted to justify a payment made to the debtor after the service of an attachment writ, because of the fact that such debtor had made an equitable assignment of the amount due him on the contract to the parties furnishing material for the work, evidence that the material man stated that he had to be paid, which the garnishee understood to mean that such material man was holding him liable for the money, was insufficient to show an equitable assignment.

      Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Suit in attachment by Vanderploeg & Kuiper and A. U. Thompson against Ivor Peterson, the attachment writ being served on G-. A. Selven as garnishee. Subsequently the court found that Selven was indebted to Peterson in the sum of $32.08 and judgment against the garnishee was entered, whereupon he brings this writ of error.
    Isaiah Campbell, for plaintiff in error; Herbert E. Herrod, of counsel.
    Harry C. Leemon, for defendants in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Garnishment, § 64 —what will protect garnishee who pays debt after attachment. Where a garnishee made a payment to a debtor after the service of an attachment writ, on a contract for painting a building, claiming that he was justified in so doing because the material man would hold him liable for materials furnished the debtor, but it appeared that the statutory period for filing notice for materials furnished had elapse'd, notice by such material man would not protect the garnishee.


text:
    Berney B. Borg for use of Otto Miller, Appellant, v. Kawin & Company, Garnishee. Walter J. Miller, Petitioner, Appellee.
    Gen. No. 19,800.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 21, 1914.
    Statement of the Case.
    Otto Miller brought a garnishment suit on a judgment had by him against Berney B. Borg, summons being served on Kawin & Company as garnishee. The garnishee was indebted to Borg in the sum of $1,100, which was the amount of the verdict in a suit brought by Borg against Kawin & Company, in which Borg was represented by Walter Miller, an attorney. Walter Miller filed an intervening petition in this garnishment proceeding, claiming a lien on the amount recovered because of a contract whereby Borg was to pay him one-sixth of the amount realized for his services. A copy of such contract with a notice of a claim for attorney’s lien was served on Kawin & Company in compliance with the statute (Hurd’s Bev. St., cli. 82, § 55, J. & A. 611). On the trial the court sustained the claim for lien and ordered the sum of $183.33, the amount awarded to the attorney, to be paid into court until its further order, and judgment was entered for the plaintiff for the balance of the fund owing from the garnishee. From such judgment the plaintiff appealed.
    Abstract of the Decision.
    1. Attorney and client, § 138

      —when attorney is entitled to lien. An attorney who has complied with the statute (Hurd’s Rev. St., ch. 82, § 55, J. & A. f 611) is entitled to a lien for his services.
    2. Appeal and error, § 1214*—when appellant cannot complain of action of lower court. An appellant who is not affected by an order requiring a sum due an attorney to be paid into court until its further order cannot complain of such order. ■
    3. Attorney and client. § 150*—what order in reference to lien may he entered. A court in the exercise of its equitable powers in adjudicating an attorney’s lien may properly order the amount due such attorney to be paid into court until its further order.
    Charles G. Rose and Ringer, Wilhartz & Louer, for appellant.
    Walter J. Miller and Walter L. Wenger, for petitioner.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Isaac Rosenberg, Appellant, v. Underwriters Salvage Company, Appellee.
    Gen. No. 19,872.
    1. Corporations, § 447

      —when corporation is liable for slander. The test as to whether a corporation is liable for slander is whether the one uttering the slander did so in endeavoring to promote the corporation’s business within the scope of the actual or apparent authority conferred upon him for that purpose. .
    2. Libel and -slander, § 90*—when declaration against corporation states no cause of action. A declaration for slander alleging that a corporation by its agent said that the plaintiff “stole a knife,” states no cause of action.
    3. Pleading, § 248*—when motion to amend declaration will be denied. A motion for leave to amend a declaration which states no cause of action, is properly denied where the statute of limitations has run when leave to amend is asked.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 21, 1914.
    Lee D. Mathias and Charles H. Robinson, for appellant.
    Bates, Harding, Edgerton & Bates, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit for damages for alleged slander. To the declaration a demurrer was filed and sustained and judgment entered dismissing the cause at plaintiff’s cost. The declaration alleges that “The Underwriters Salvage Company, a corporation, of Chicago, Illinois, ’ ’ “in a certain discourse which the defendant then and there had, by and through one of his agents,” said: “ ‘You’ (meaning the plaintiff) ‘stole a knife’ (meaning a knife belonging to the defendant). ‘Well come on give me the knife’ (meaning the knife the defendant had accused the plaintiff of stealing from the defendant).”

We are of the opinion that the declaration stated no cause of action, and the court was right in sustaining the demurrer and dismissing the cause. We find in 31 Cyc., Yol. 31, p. 1581, a concise statement of the law, digested from a very large number of cases in the courts of almost every State and in the United States courts, as follows:

“Upon the principle that he who does an act by another does-it himself, a principal is liable to third persons for the torts which he has expressly authorized or specially directed his agent to commit.
“The liability of the principal for torts committed by his agent is not limited to torts which he has ex-pressely authorized or directed; he is liable for all the torts which his agent commits in the actual or apparent course of his employment; and if the agent commits a tort in the apparent course of his employment the principal is liable therefor even though he was ignorant thereof and the agent in committing it exceeded his actual authority or disobeyed the express instructions of his principal. Thus a principal is civilly liable to third persons where his agent, while acting within the scope of his real or apparent authority, is guilty of assault and battery, conversion, fraud, or trespass; and he is also liable for the negligence of his agent resulting in injury to person or property.
“A principal is not liable for the torts which his agent commits when not acting in the course of the employment, unless he subsequently ratifies them. Nor is a person liable for the torts of one who does not bear to him the relation of agent, unless he has so acted in permitting the alleged agent to represent him that he is estopped to deny the agency.
“While the term ‘course of employment’ is impossible of precise definition, it may be said broadly that the act of an agent is within the course of his employment when the agent in performing it is endeavoring to promote his principal’s business within the scope of the actual or apparent authority conferred upon him for that purpose.”

The test inquiry concerning the liability of a corporation for slander is, did the one uttering the slander do so in endeavoring to promote the corporation’s business, within the scope of the actual or apparent authority conferred upon him for that purpose? If we apply this test to the declaration in question, it is at once apparent that it omits almost every essential charge necessary to the statement of a cause of action against the defendant. This is so clear on the face of it as to make any detailed analysis of the declaration unnecessary.

This is not the case of a defective statement of a cause of action, but it is a statement of no cause of action. Hence, the statute of limitations having run when leave was asked to amend, it was not error to deny the motion.

The judgment was right and is affirmed.

Affirmed.