text:
    Charles P. Riley, Defendant in Error, v. International Banana Food Company, Plaintiff in Error.
    Gen. No. 18,777.
    1. Municipal Court of Chicago, § 13

      —when affidavit of merits may be stricken. In an action for damages for breach of a written contract for the sale and purchase of bonds, defendant’s affidavit of merits stating that the delivery of the instrument was conditional and that there was a certain additional contractual- relation held properly stricken from the files on the ground that such matters could not be established by parol evidence.
    2. Evidence, § 336

      —when parol evidence as to delivery of written instrument admissible. While parol evidence is competent for the purpose of showing whether or not a written instrument was legally delivered, such evidence is incompetent for the purpose of showing that a written instrument legally delivered was not to become operative until the performance of some condition.
    3. Evidence, § 333

      —when parol evidence as to considération of written agreement admissible. Where the question involved relates solely to the amount or character of the consideration recited in the written instrument, parol evidence is competent to show the true consideration, but an acknowledgment of the payment of a stated consideration cannot be contradicted by parol evidence for the purpose of invalidating the instrument.
    4. Evidence, § 319

      —when parol evidence inadmissible to prove an additional contractual relation. Where a written agreement involves the mutual promises of the parties thereto and the performance by them of certain contractual acts, proof of an oral agreement for another and additional contractual relation would be to vary the contractual terms of the written instrument by parol evidence.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Rehearing denied April 16, 1914.
    Edward 1ST. Sherburne, for plaintiff in error.
    Buell & Abbey, for defendant in error.

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

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Municipal Court by Charles P. Biley against the International Banana Food Company upon a claim for damages for alleged breach of a contract. To the statement and affidavit of claim filed by the plaintiff the defendant filed its amended affidavit of merits, which, on motion of plaintiff, was stricken from the files, and thereupon the defendant was defaulted for want of a sufficient affidavit of merits, and damages to the amount of $950 were assessed against it and judgment entered thereon.

Plaintiff’s claim, as filed, sets forth that it is for money due from defendant for breach of a contract in writing executed between the parties on the 8th day of June, A. D. 1911, a copy of which contract is attached and made a part thereof, by the terms of which

plaintiff sold to defendant two hundred and fifty first mortgage gold bonds of the Federal Fruit Company at the agreed price of $90 per bond, which contract defendant repudiated on September 5, 1911; that plaintiff was authorized to sell said bonds by the Federal Fruit Company at the price of $95 per bond and that if said contract had been performed he would have realized the sum of $5 per bond; that on account of the act of defendant in repudiating said contract plaintiff was damaged to the amount of $1,250; that plaintiff received from defendant on account of said contract the sum of $300 and that there is now due and owing to him from said defendant the sum of $950.

The agreement referred to in plaintiff’s statement of claim is as follows:

“'This Agreement, made and entered into this 8th day of June, A. D. 1911, by and between C. P. Eiley of Chicago, 111., party of the first part and the International Banana Food Company, a corporation organized under the laws of the territory of Arizona with offices at Chicago, HI., party of the second part, Witnesseth, That

Whereas party of the first part controls the sale of two hundred fifty (250) First Mortgage Six (6%) per cent Cold Bonds of the Federal Fruit Company, a corporation organized under the laws of Illinois, said bonds being of the denomination of One Hundred ($100) Dollars each and

Whereas said first party is desirous of disposing of same, and

Whereas, the party of the second part is desirous of assisting in the sale of said bonds and is willing to purchase same, Now Therefore, This agreement Witnesseth That

For and in Consideration of the sum of One ($1) Dollar and other good and valuable consideration in hand paid each to the other, the receipt whereof is hereby expressly confessed and acknowledged, the parties hereto do each contract each with the other as follows, to-wit:

The party of the first part hereby sells and the party of the second part hereby purchases said two hundred fifty (250) bonds at and for the agreed price of Ninety ($90) Dollars per bond net cash.

The party of the first part hereby agrees to deliver said bonds in such amounts and at such times as may be called for by the party of the second part at any time hereafter.

It is mutually agreed and understood between the parties hereto that the party of the second part shall pay for said bonds hereinbefore mentioned as follows:

$8,750.00 on or before May 1st, 1912.
5.000. 00 on or before 'Sept. 1st, 1912.
5.000. 00 on or before Jan. 1st, 1913.
2,300.00 on or before May 1st, 1913.

and the further sum of $1,250 payable as follows, to-wit:

$100.00 on or before June 15th, 1911.
100.00 on or before July 1st, 1911
100.00 on or before Aug. 1st, 1911.
100.00 on or before Sept. 1st, 1911.
100.00 on or before Oct. 1st, 1911.
100.00 on or before Nov. 1st, 1911.
100.00 on or before Dec. 1st, 1911.
100.00 on or before Jan. 1st, 1912.
100.00 on or before Feb. 1st, 1912.
100.00 on or before March 1st, 1912.
100.00 on or before Apr. 1st, 1912.
100.00 on or before May 1st, 1912.
50.00 on or before June 1st, 1912.

It is further mutually agreed and understood that the party of the second part shall have the right at its option to pay for said bonds if it so elects, from time to time before the above mentioned dates and upon any such payments being made, said party of the second part shall be entitled to receive interest upon said payments at the rate of 5% per annum for such period of time as any such payments shall be made prior to the due dates mentioned herein.

In Witness Whereof the parties hereunto have set their hands and seals the day and year first hereinbefore written. Witness :

(Signed) C. P. Riley (Seal)
International Banana Food Co.
(Signed) J. Ellsworth Griffin, Pres’t.
(Signed) Wm. G. Stearns, Sec’y.”

The amended affidavit of merits filed by defendant states its defense to the whole of plaintiff’s demand as follows:

“First: That the original of the said contract was delivered to said plaintiff with the agreement that the same should not become operative until said plaintiff should procure the consent and ratification of a disinterested majority of the board of directors of said Federal Fruit Company; that the said plaintiff never procured said consent and ratification and that, therefore, the said contract never became operative.
Second: That defendant is the owner of a large amount of the capital stock of the Federal Fruit Company, a corporation, duly organized and existing* under the laws of the State of Illinois; that on January 18, 1909, the said Federal Fruit Company, at the request of the plaintiff, by resolution duly passed, authorized said plaintiff to sell its $50,000 issue of bonds to net the said Federal Fruit Company at least 85 per cent, of the par value thereof; that the said plaintiff failed to carry out the said resolution and failed to sell and dispose of the said bonds; that prior to May 27, 1911, the said plaintiff had disposed of bonds to the amount of, to-wit, $5,900; that various other amounts of said bonds had been sold and disposed of through other sources so that on May 27, 1911, the amount of said Federal Fruit Company bonds remaining unsold aggregated $30,000; that said plaintiff then and there represented that he had purchasers at that time for $5,000 worth of said bonds, leaving $25,000 worth of said bonds undisposed of; that on said May 27, 1911, said defendant entered into an oral agreement with the said plaintiff by the terms of which he agreed to devote his time for one year or so much thereof as might be necessary to the sale of the securities of the defendant to the amount of $25,000 at par, and the defendant, as a consideration for said last mentioned agreement, agreed to purchase of plaintiff the $25,000 worth of Federal Fruit Company bonds last aforesaid; that pursuant to said agreement last above set forth on June 8, 1911, said defendant entered into the written contract attached to the statement of claim, by the terms of which defendant ag*reed to take over and purchase from the said plaintiff the said $25,000 worth of bonds; that the consideration and the only consideration which the defendant received for said contract was the agreement of said plaintiff to devote his time for one year or so much thereof as might be necessary to the sale of $25,000 worth of the securities of the defendant; that said plaintiff was then and there a director in defendant corporation and owed to it the utmost good faith; that the said plaintiff entirely failed, neglected and refused to carry out his said contract to devote his time to the sale of defendant’s securities as aforesaid; that by reason of the plaintiff failing and neglecting to' carry out his agreement with the said defendant said defendant did not become indebted to him in any sum whatsoever, and that said plaintiff is indebted to said defendant for the amount of money from time to time advanced to him, to-wit, the sum of $300, which it is entitled to recover from plaintiff. ’ ’

Defendant’s affidavit of merits was stricken from the files mainly because the defenses interposed thereby sought to vary the terms of the written contract set forth in plaintiff’s statement of claim by parol evidence; that as parol evidence was inadmissible to establish the facts set forth in said affidavit of merits, the same constituted no defense to plaintiff’s cause of action.

It is conceded by defendant that the defenses sought to be interposed by it in its affidavit of merits rest wholly upon the competency of parol evidence, and it is also conceded that parol evidence is inadmissible to vary or contradict the terms of a valid written instrument, but as to the first ground of defense it is insisted that as the delivery of an instrument involves the question of intent, parol evidence tending to show that it was not in fact delivered to take effect presently is competent, and the admission of such evidence for that purpose does not violate the well established and salutary rule.

No rule of law in its practical application has been the subject of more confusion, obscurity and apparent or real contradiction than the so-called parol evidence rule, and we shall not attempt the impossible task of harmonizing or distinguishing the authorities and cases bearing upon the subject.

The rule, as it prevails in this State in its application to the question involved in this case, is best formulated and stated in Ryan v. Coolie, 172 Ill. 302, as follows:

“Undoubtedly, the delivery of a written contract is necessary to give it binding effect, and delivery is a question of intent; and the character of the delivery, whether absolute or conditional, may be established by parol. (Jordan v. Davis, 108 Ill. 336). But, while it may be shown that a deed or contract is not to be delivered until a condition is performed, yet it cannot be shown by parol, that actual delivery was made under an agreement, that a condition should be performed, and that the deed or contract should not be operative unless it was performed. In the one case, the purpose of the proof is to show want of a legal delivery, but in the other case the effect of the proof is to contradict an instrument, absolute on its face, by showing, contrary to its terms, that it is not absolute, but only conditional. (Delvin on Deeds, secs. 295, 315; Ward v. Lewis, 4 Pick. 518).

When a deed or other instrument is handed by the grantor to the grantee, or by the obligor to the obligee, simply for the purpose of having the party, to whom it is thus handed, obtain the signatures of other parties thereto, or obtain the guaranty of some third person thereon, there is no delivery, but a mere manual transfer of possession. Bat where the deed or instrument, being ready for delivery, is handed to the grantee or obligee with the intention at the time of passing a present title, there is a delivery, and parol evidence that it was not to become operative, until the performance of some condition, is not proper. (Stanley v. White, 160 Ill. 605).”

An analysis of the first ground of defense, as set forth in defendant’s affidavit of merits, discloses that the agreement sought to be shown by parol evidence related merely to a condition or contingency upon which after delivery the contract in question was to become operative, and not to a condition or contingency upon which said contract should be delivered to become operative. This is the precise distinction soug’ht to be made and stated in Ryan v. Cooke, supra. While parol evidence is competent for the purpose of showing whether or not a written instrument was legally delivered, such evidence is incompetent for the purpose of showing that a written instrument legally delivered was not to become operative until the performance of some condition.

Jordan v. Davis, 108 Ill. 336, relied upon by defendant, contains some expressions not readily reconcilable with the true rule as we understand it, but when the rule as there stated is interpreted in the light of the observation in Stanley v. White, 160 Ill. 605, that in Jordan v. Davis, 108 Ill. 336, “the minds of the parties never met upon' the question of delivery,” somewhat of the confusion is dispelled.

Respecting the second defense sought to be interposed, it is insisted that it amounts to a plea of failure of consideration in that the only consideration received by defendant for the written contract was the oral agreement of plaintiff that he would devote his time for one year, or so much thereof as might be necessary to the sale of $25,000 worth of the securities of the defendant, which agreement plaintiff failed to perform; and further that as such oral agreement is a separate agreement collateral to the written contract, parol evidence of such oral agreement may properly be introduced.

Where the question involved relates solely to the amount or character of the consideration recited in the written instrument, parol evidence is competent to show the true consideration, but an acknowledgment of the payment of a stated consideration cannot be contradicted by parol evidence for the purpose of invalidating the instrument. Gillespie v. Fulton Oil & Gas. Co., 236 Ill. 188.

Again, the written agreement in question involves the mutual promises of the parties thereto and the performance by them of certain contractual acts, and in such case proof of an oral agreement for another and additional contractual relation would be to vary the contractual terms of the written instrument by parol evidence, and would come within the inhibition of the rule.

In IY Wigmore on Evidence, see. 3433, the doctrine is stated thus: “In general, then, it may be said that a recital of consideration received is, like other admissions, disputable so far as concerns the thing actually received; but that, so far as the terms of a contractual act are involved, the writing must control, whether it uses the term ‘consideration’ or not.”

In Schneider v. Turner, 130 Ill. 28, it is said:

“The right to vary or explain the consideration expressed in a written contract, or to prove that it was never paid, does not authorize the introduction of such testimony to affect the terms or validity of the contract. O’Brien v. Palmer, 49 Ill. 72; Morris v. Tillson, 81 id. 607.”

The entire agreement between the parties relative to the sale and purchase of the bonds, the delivery thereof and the payments therefor appears to have been reduced to writing, and it must be conclusively presumed to embody all the terms and conditions contemplated to be performed by the parties thereto.

Defendant’s affidavit of merits was properly stricken from the files and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Me. Justice Baume

license: Public Domain

text:
    Peter Gildea, Defendant in Error, v. Illinois Tunnel Company, Plaintiff in Error.
    Gen. No. 18,829.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 704

      —when recovery for personal injuries by underground railroad employe sustained by the evidence. In an action against a company operating an underground railroad for personal injuries sustained by an employe while attempting to uncouple a car switched from the track to an elevator, which sank about three inches when the car was moved on it, held that a recovery by plaintiff was sustained by the evidence, it appearing that defendant was negligent in failing to notify and warn plaintiff of the dangerous condition of the elevator, in failing to provide a recess or opening in the side of the pass to enable plaintiff to uncouple cars from the side, and in failing to maintain a sufficient light at the place.

      Error to the Superior Court of Cook county; the Hon. William H. McSttrely, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.

      Certiorari denied by Supreme Court (making opinion final.)
    Statement of the Case.
    Action by Peter Gildea against Illinois Tunnel Company to recover damages for personal injuries sustained by plaintiff alleged to have been caused by the negligence of the defendant in the maintenance and construction of an elevator for lowering and raising cars from an underground railroad to or above the surface of the ground. The plaintiff, an employe of defendant, was injured while attempting to uncouple a car which was switched on the elevator. It appeared that when the car was run on the elevator that the elevator sank about three inches below the level of the track and that plaintiff’s foot was caught between the wheels of the car and the rail of the track. Prom a judgment in favor of plaintiff for three thous- and dollars, defendant brings error.
    John A. Bloomingston, for plaintiff in error.
    James C. McShane, for defendant in error.

      Seo Illinois Notes Digest. Yole. XI to XV, same topic and section number.

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

   Me. Justice Baume

delivered the opinion of the court.

2. Limitation of actions, § 111 —when plea of statute to a count alleging different causes of action demurrable. Where an additional count was vulnerable to attack by special demurrer because it alleged three independent wrongful acts as ground for recovery, in the absence of such attack, if any one of such grounds for recovery or causes of action is not barred by the statute, a plea of the statute of limitations is subject to demurrer.

3. Limitation of actions, § 58 —when restatement does not constitute statement of new cause of action. Where an original declaration merely stated a cause of action defectively, a restatement of the cause of action in apt form does not amount to a statement of a new or different cause of action.


author: Mr. Justice Baume

text:
    James A. Cummins, Administrator, Appellee. v. Sanitary District of Chicago, Appellant.
    Gen. No. 18,840.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Rehearing denied April 16, 1914.

      Certiorari denied by Supreme Court (making opinion final.)
    Statement of the Case.
    Action by James A. Cummins, administrator of the estate of Francis Mnlvihill, deceased, against the Sanitary district of Chicago and the Commonwealth Edison Company to recover damages for wrongfully causing the death of plaintiff’s intestate. The facts show that the Sanitary District was excavating a ditch in a street near a wooden pole supporting electric wires and belonging to the Commonwealth Edison Company, that the pole needed bracing and that the deceased, an employe of the Sanitary District, was ordered to climb the pole to spike a timber to the post, and while doing so he came in contact with a grounded iron pipe and was electrocuted. Plaintiff recovered a verdict and judgment against the Sanitary District for $8,000. The defendant Commonwealth Edison Company was found not guilty. From the judgment, the Sanitary District appeals.
    Abstract of the Decision.
    1. Master and servant, § 191

      —when duty of master to warn servant. In an action for wrongful death of a servant resulting from ordering the servant to climb an electric light pole for the purpose of spiking a brace to the same, held that the master was chargeable with knowledge of the defective and dangerous condition of the cut-out box and that it was incumbent upon it to warn the deceased of such defect and danger, it appearing that deceased was merely a common laborer unfamiliar with the special hazards incident to the place he was directed to work.
    2. Master and servant, § 126

      —duty to furnish safe place to work. In an action for wrongful death of a servant, held the fact that the work was performed on the premises of another did not relieve the master of the obligation to inspect nor of his duty to furnish a safe place to work.
    3. Master and servant, § 777

      —when refusal of requested instruction proper. In an action for wrongful death of a servant, an instruction requested by defendant held properly refused, for the reason that it wholly ignored the duty of the defendant to warn deceased?' of the dangers incident to the place he was directed to work, and also for the reason that it singled out a particular fact in the case and directed the jury as a matter of law that such fact did not warrant a recovery.

      Robert J. Foloptie, for appellant; Ralph F. Potter, of counsel.
    Quipt O’Bbiept and O. A. Arhstopt, for appellee.

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

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

   Mr. Justice Baume

delivered the opinion of the court.

4. Negligence, § 49 —proximate cause. The rule that to constitute proximate cause it must appear that the injury complained of was the natural and probable result of the negligence charged does not necessarily mean that the person guilty of a negligent act or omission might have foreseen the precise form of the injury

5. Death, § 67 —when verdict for $8,000 not excessive. A verdict for $8,000 held not excessive for wrongful death of a person thirty years old, leaving a widow and child surviving, it appearing that he was a healthly and industrious worker of good habits and was earning $1.80 to $2.00 a day and had previously earned $18 a week doing plumbing work.

6. Appeal and ebrob, § 1256 —when appellant cannot urge errors in instruction requested by coparty. In an action against two defendants where plaintiff properly recovered a judgment against one, errors in instructions given at the request of the other defendant in a contest to shift liability, held not chargeable to the plaintiff.

7. Appeal and error, § 1214 —effect of errors in rulings between coparties. Ordinarily, where a plaintiff properly recovers a judgment against one of two defendants, he is not concerned in the question whether or not the court erred in its rulings between the two defendants.


author: Mr. Justice Duncan

text:
    Anna Jakes, Defendant in Error, v. North American Union, Plaintiff in Error.
    Gen. No. 18,527.
    1. Insurance, § 793

      —when provision in by-laws for suspension of member for failure to pay monthly assessments is waived. Bylaws of a mutual benefit association providing for suspension of a member on Ms failure to pay any monthly assessment, held waived where a member who fell behind in the payment of two monthly assessments had been allowed for nine years to make his payments quarterly and had received notice from the collector to pay the assessments due by the first of the following month, and on payment being offered it appeared that the association refused to .accept the same because he was sick.
    2. Contracts, § 331

      —necessity of notice after waiver of strict performance as to time of payment. Where strict and exact performance in the matter of payments on a contract at the exact times therein specified have been waived for a portion of the time of such contract, and such delayed payments have been accepted without complaint for a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the contract must he given before a forfeiture or rescission thereof can he declared in law by either party.
    3. Insurance. § 797

      —power of agents of benefit society to waive provisions of contract. A restriction upon the power of an agent of a benefit society to waive any conditions of the contract, or upon the manner of their waiver, is a condition which may itself he waived.

      4. Insurance, § 798

      —authority of persons designated to malee icottections to waive provisions regarding payment of assessments-. lit is not within the power of a mutual benefit association to defeat .the legal defense of waiver of the provisions of its contracts in the matter of collecting assessments, by declaring that its collector and the subordinate council, whom it has designated to make such collections, are not its agents, or that they have no power to waive for it the provisions of the contract with reference to the payment of assessments.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Robert S. Iles, for plaintiff in error.
    H. P. Sinden, 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 Duncan

delivered the opinion of the court.

Plaintiff in error, North American Union, a fraternal benefit society organized under the laws of Illinois, by this writ of error seeks to reverse a judgment of $1,000 against it in favor of defendant in error in her suit on its benefit certificate issued to her as wife of Karel Jakes, August 15, 1899.

Plaintiff in error urged in the court below and urges here as a complete defense to defendant in error’s claim the failure of the assured, Karel Jakes, to pay to it his January and February, 1910, assessments when due and payable under its laws, amounting to $1.06 for each of said months, and his suspension in March, 1910, by reason of said nonpayment, and the consequent forfeiture of all his rights as a member of plaintiff in error, and of all of defendant in error’s rights under said certificate, as provided by the laws of the order which were a part of the contract.

The assured died April 30, 1910. The evidence further shows without question that he paid to plaintiff in error all his assessments monthly in the months they came due by provisions of the by-laws beginning with August, 1899, the date he became a member, andj ending with December, 1900; that for the nine years from 1901 to 1909, both inclusive, he paid all his as-j sessments to plaintiff in error quarterly, and in the last month of the quarters, his last payment of $3.18 having been paid December 28,1909, being $1.06 assess-! ment for each of the months of October, November and December, 1909. All of said payments are evidenced by two receipt books furnished him by his lodge, Pilsen Council, No. 80, printed in blank form in the Bohemian language, and which he carried with him to the lodge when he paid his assessments, and had the payments receipted for in the books by the financial secretary, the collector of plaintiff in error, at the times the payments were made.

It was also proved without controversy that there was a custom in said lodge for the members to pay their dues quarterly instead of monthly, and that that custom continued through the year 1910; that the local lodge or council would remit monthly to the Grand Council all assessments due for the previous month out of moneys obtained through entertainments and otherwise, and carry the members who were paying quarterly until they paid the assessments to the lodge, and one witness testified that he believed that custom was known to the Grand Council.

Defendant in error further proved that she tendered for her husband on the second Tuesday in March, about March 13, 1910, and again on March 22, 1910, the sum of $3.18 to the collector of plaintiff in error, at the local lodge, in payment of his assessments of $1.06 each for the months of January, February and March, 1910, and that the collector refused to accept the same for said assessments because of her information to him that her husband was sick and unable to attend the lodge in person and pay his assessments. Defendant in error by a ruling of the court was required to introduce, as a part of her case in chief, the application for membership and the medical examination of the assured, and the constitution and by-laws of plaintiff in error, along with the certificate, all of which by express provisions were made parts of the contract of insurance.

The only evidence offered by plaintiff in error was that of its collector, James Kozak, who testified that he became collector of Pilsen Council, No. 80, February 12, 1910; that Albert Havel, brother of defendant in error came to him “around March 20, 1910,” to pay Karel Jakes’ assessments for him, and that he refused to accept it because he was informed Jakes was sick; that about March 23, 1910, defendant in error offered him the money for Jakes’ said assessments and an application for his reinstatement signed by Jakes, and that he told her her husband ought to come and sign the application; that she told him Jakes could not come because he was sick in bed; that he then told her he could not accept the money and the application until he was examined by a doctor of the Order; that he had signed and mailed to Jakes at his address in “the last of February, 1910,” a notice, dated “Chicago, 1910,” stating that Jakes was behind in his payments, and that no member was allowed to be sixty days behind in his payments, “otherwise he have to be suspended. See that you pay not later than the first, 1910. Assessments to be paid are Nos----”; that on the 2nd or 3rd of March, 1910, he mailed Karel Jakes a blank application for reinstatement with a second notice signed by him as collector, dated “Chicago, Illinois, 1910,” in these words: “I herewith send you list paper which you can fill out if you intend to remain a member of Pilsen Council No. 80, North American Union, and pay up amount. If you do not do same to the 25th of March, 1910, you will be expelled according to the by-laws for non-payment.”

The application itself is headed with a notice to Jakes, dated “3-12-1910,” stating that he had suspended himself by operation of law from membership in said council by his failure to pay assessments Nos. 176-7 which were due on or before March 1, 1910, amounting to $2.37, including fines, twenty-five cents, and the envelope in which they were mailed shows by the postmark that it was mailed March 11,1910, 11:30 P. M.

Defendant in error testified in rebuttal that the only notice of any kind received by her or her husband was the said notices inclosed with the application for reinstatement, and that they were received March 12,1910; that her husband immediately filled out the application and signed it and that she then at once took it to Kozak, the collector, and tendered it with the $3.18 for assessments for January, February and March, 1910, which were refused as aforesaid, and that no other notice was received by her or her husband at any time.

The evidence clearly establishes a waiver by plaintiff in error of its right under the by-laws to suspend Jakes from membership in the council for delinquency in the payment of the January and February, 1910, assessments, and to declare a forfeiture against him and his beneficiary under said certificate. The bylaws of plaintiff in error provided that the monthly assessments should be due and payable from each member on the first day of each calendar month, and that they must be paid before the close of such month, or that the member should be suspended from all benefits in the order without notice, and that he and his beneficiary shall forfeit all interest in the beneficiary certificate. The by-laws also provided that such suspended member may be reinstated on or before the 25th day of the month in which he was suspended, provided that he is in good health, and shall make application and statement certifying that he is in good health and pay the assessments due and unpaid together with the fines named in the by-laws as penalties for not paying according to the by-laws.

Karel Jakes at the time of his alleged suspension was not in good health and died as the result of that illness, and, therefore, under the ruling of plaintiff in error, could never be restored to Ms rights as a member, and defendant in error was also barred of all rights under the benefit certificate, although for the nine years just preceding his suspension he had been allowed to pay his assessments quarterly in the last month of the quarters, and generally in the latter part of such last month, and without any complaint whatever by plaintiff in error or of any of its officers, and without even a fine being assessed against him. He was also held to be in default in January, 1910, and while so in default another assessment is charged up against him for February, 1910, and he was all through those two months recognized by plaintiff in error as a member in good standing, and his assessments would have been received in the following month of March for all three of said months, as the evidence clearly shows, if those who undertook for him to pay his assessments had not disclosed that he was sick. Then for the first time plaintiff in error conceived the idea of declaring him suspended, and of refusing to accept his assessments and to reinstate him, unless he would do what was then impossible for him to do, furnish a certificate of health, etc. It would be a hard law, indeed, that would sustain plaintiff in error in its conduct towards Jakes.

Plaintiff in error had a right to adhere strictly to the provisions of its contract, and to require that Jakes pay his assessments according to the exact terms of the contract, but it could waive that right. Where strict and exact performance in the matter of payments on a contract at the exact times therein specified have been waived for a portion of the time of such contract, and such delayed payments have been accepted without complaint for a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the contract must be. given before a forfeiture or a rescission thereof can be declared in law by either party. Palmer v. Ford, 70 Ill. 369; Vider v. Ferguson, 88 Ill. App. 136; Finch & Co. v. New Ohio Washed Coal Co., 156 Ill. App. 589.

The jury were warranted in finding that plaintiff in error by allowing Karel Jakes to pay his dues quarterly in the last month of the quarters for nine full years prior to January, 1910, had induced him to honestly and reasonably believe that he would be allowed to wait until any time in March, 1910, to pay the assessments for the first quarter of 1910, and that he would forfeit no right by so doing. No finding by the jury to the contrary could be sustained under the evidence. Plaintiff in error, therefore, waived its right to declare a forfeiture, and its declaration of forfeiture was no defense to defendant in error’s suit. It was, therefore, of no consequence that his statement in his application for reinstatement that he was in good health was false.

The evidence is clear also that Jakes received only the notices that were mailed to him by plaintiff in error’s collector on March 11th aforesaid, and that he immediately thereafter did all he could do to pay his assessments by promptly tendering the money therefor and was denied the right to pay them, because he was sick. The notice alleged to have been mailed to him “last of Feb., 1910,” is simply a notice to pay his assessments without naming them, and to pay them “not later than the first, 1910,” and was not a notice that payment must be paid on or before March 1,1910, as contended. The notice recognized Jakes as a member in good standing and undertook to fix a date before or on which he could pay his dues without forfeiting any right, but failed to make definite such date. The evidence clearly shows an intent not to declare a forfeiture until the collector learned he was sick and unable then and at all times thereafter to furnish a true certificate of health.

“Forfeitures are not favored in the law, and courts readily seize hold of any circumstances that indicate an intent to waive a forfeiture. * * * Where the practice of the company, and its course of dealing with the insured, and others known to the insured, has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.” Conductors’ Benefit Ass’n v. Tucker, 157 Ill. 194; Illinois Life Ass’n v. Wells, 200 Ill. 445; Jones v. Knights of Honor, 236 Ill. 113.

The laws of plaintiff in error provide that the subordinate council shall receive from the collector through its treasurer the assessments paid by the members and forward them monthly to the supreme secretary; that the collector is the sole agent of plaintiff in error for the receipt of payment of dues and assessments ; that no authority is vested in the subordinate council nor in the collector to extend the time of payment of assessments or to waive any of the requirements for the payment of dues and assessments; that the collector is prohibited from crediting any member on the books of the council with payments unless paid within the time and in the manner provided by the by-laws; and that the receipt and retention of any assessment shall not in any case constitute a waiver of any law or defense which might have been relied upon had such payment not been made.

It is argued by plaintiff in error that such laws and the agreement of the assured to be bound thereby are absolutely binding and cannot be waived, and that defendant in error should not have been permitted to prove and rely on her said defense of waiver. Such laws and by-laws and contract provisions may be waived and were waived by plaintiff in error. It is bound by the acts of its agents, and is charged with the knowledge of its agents gained in their course of dealings with its members.. The subordinate council and the collector aforesaid were its agents by express provisions of its by-laws and bound it by all their acts within the scope of their employment.

A restriction upon the power of an agent of a benefit society to waive any conditions of the contract, or upon the manner of their waiver, is a condition which may itself be waived. It is not within the power of a mutual benefit association to defeat the legal defense of waiver of the provisions of its contracts in the matter of collecting assessments, by declaring that its collector and the subordinate council, whom it has designated to make such collections, are not its agents, or that they have no power to waive for it the provisions of the contract with reference to the payment of assessments. Dromgold v. Royal Neighbors, 261 Ill. 60.

For the reasons above given, the court did not err in admitting the evidence of defendant in error, and in refusing to give the instructions offered by plaintiff in error.

The second instruction given by the court is objectionable and should not have been given to the jury. The judgment, however, is so clearly right that it should be affirmed, and it is, therefore, affirmed..

Judgment affirmed.


text:
    Marie Casper by Mathew Casper, Defendant in Error, v. Andrew Geek and Emil Geek, Plaintiffs in Error.
    Gen. No. 18,659.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by Marie Casper, a minor, by Mathew Casper, her next friend, against Andrew Greek and Emil Geek. The case has heretofore been disposed of on appeal in Casper v. Geck, 185 Ill. App. 155.

    Pending the appeal the defendants filed a motion to have the bill of exceptions amended nunc pro tunc after the bill had been signed by the trial judge. To reverse an order refusing to enter a nunc pro tunc order for the amendment, defendants bring error. A motion to consolidate this case with the case appealed from was denied.
    The amendment sought to be made by plaintiff’s in error was the certifying by the trial judge of six affidavits made on their behalf in support of a motion for a new trial in the court below as a part of the bill of exceptions. The affidavits set forth certain alleged misconduct of the jurors who tried the case in the court below.
    George E. Gorman, Thomas J. Peden and B. C.. Merrick, for plaintiffs in error.
    Chase B. Bankin, for defendant in error.
    Abstract of the Decision.
    1. Appeal and error, § 936

      —sufficiency of evidence for amendment of record. Where an order of court amending any record is resisted it cannot he legally made upon parol evidence, but only upon sufficient evidence appearing by some memorandum, minute or note of the judge, or something appearing in the record or files of the court to show the facts in respect of which the amendment is sought to he made. No record can be made or determined from the memory of witnesses or the personal recollections of the judge himself.
    2. Appeal and error, § 1318

      —when order denying amendment of MU of exceptions presumed supported 6y the evidence. Where a party seeks to question the correctness of an order of the trial court in allowing or. denying a motion to amend a bill of exceptions, he must show by a bill of exceptions the evidence upon which the court acted. In the absence of such showing it will be presumed that the court’s order was supported by the evidence.

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

   Mr. Justice Duncan

delivered the opinion of the court.

3. Appeal and ebbob, § 936 —when record does not show error of court in refusing to amend hill of exceptions. Refusal of trial court to enter a nunc pro tunc order for the amendment of a bill of exceptions by having certain affidavits made on behalf of plaintiffs in error in support of their motion for a new trial made a part thereof, held not error where there were no minutes of the trial judge introduced in evidence and incorporated in the record and no proper evidence in the record that the affidavits were ever read to the court or presented to him for consideration on the motion for a new trial or otherwise, although there was a recital in the record “that it appeared to the court from an examination of his minutes” that the said affidavits were read to the court during the argument of the motion for a new trial, but such recitals being insufficient as not being a recital of the evidentiary facts.


text:
    Portage Rubber Company, Defendant in Error, v. Fruin Drop Forge Company, Plaintiff in Error.
    Gen. No. 18,722.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnkaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 1, 1914.
    Statement of the Case.
    Action by Portage Rubber Company against Fruin Drop Forge Company to recover the price of 3,792 hoof pads manufactured for the defendant by the plaintiff. The case was tried without a jury and judgment was entered in favor of plaintiff for $388.05 and costs. To reverse the judgment, defendant brings error.
    Plaintiff in error asks a reversal of the judgment upon three grounds: (1) That there was no contract between the parties for the manufacture of the goods;
    (2) that there was no delivery of the goods sued for;
    (3) that there was no agreement as to the price of the goods, and no proof in the record as to their value.
    Harris F. Williams, for plaintiff in error.
    Harper E. Osborn, for defendant in error.
    Abstract of the Decision.
    1. Contracts, § 44

      —what constitutes unconditional acceptance of offer. When an offer is accepted as made, the acceptance is not conditional and does not vary from the offer because followed by inquiries whether the offerer will change his terms, or as to future acts, or because accompanied with expressions of hope or suggestions or requests, etc.
    2. Sales, § 56

      —when answer to tetter constitutes unconditional acceptance of offer. Where a company wrote another company ordering a certain number of hoof pads to be shipped on or after a certain date and stated in the letter, “If you will you may keep in stock over and above each order sent about 2,000 pieces each of” certain sizes, and the latter company in answer wrote a letter acknowledging the order and stating, “we also note that you would like for us to keep in stock * * * about 2,000 pieces each of above sizes. We will be glad to do this, but we would like for you to send us your regular order for same and mark the order ‘to be shipped when instructed to do so.’ You do not say how you want the fabric * * * but we are proceeding with the order taking it for granted that you want two plies of Duck clear across the heel,” held that the answer constituted an unconditional acceptance of the request to keep in stock 2,000 pieces each of the sizes requested.
    3. Sai.es, § 329

      —sufficiency of the evidence. In an action for the price of hoof pads manufactured by the plaintiff for the defendant, evidence held sufficient to show a contract between the parties, that a contract price was agreed upon, that the goods were held by the plaintiff as the property of defendant and that plaintiff was entitled to recover the price.

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

   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Falls City Tannery, Appellee, v. W. D. Allen Manufacturing Company, Appellant.
    Gen. No. 18,922.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 5, 1914.
    Rehearing denied April 10, 1914.
    Statement of the Case.
    Action by Falls City Tannery, a Kentucky corporation, against W. D. Allen Manufacturing Company, an Illinois corporation, to recover a balance claimed to be due for belt butts sold and delivered under a contract entered into between the parties. From a judgment entered in favor of plaintiff on a directed verdict, defendant appeals.
    Underwood & Smyser, for appellant; Charles R. Young and Arthur A. Basse, of counsel.
    Gr. W., H. W. & R. W. Woodbury, for appellee.
    Abstract of the Decision.
    1. Sales, § 330

      —when direction of verdict for plaintiff improper. In an action to recover a balance due for belt butts sold and delivered to defendants, defendant set up in an affidavit of merits and urged upon the trial as a defense that plaintiff, with intent to defraud defendant, knowingly and wilfully loaded, charged or treated the belt butts with large quantities of glucose for the purpose of wrongfully increasing their weight. At the close of defendant’s case the court instructed the jury to return a verdict for the plaintiff. Held that a direction of a verdict for plaintiff was error, where the testimony introduced on behalf of defendant tended to show that it could not be determined from an inspection that the butts contained glucose; that the president of plaintiff Company represented that they had not been loaded or doped, but as a matter of fact he had knowledge that glucose had been applied to them; and that there was shrinkage in weight after the butts were "curried” owing to their containing large quantities of glucose.

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Sales, § 241 —lohen rule of caveat emptor applies. “The rule of caveat emptor only applies to defects which are open and patent to the senses and does not apply in cases of positive fraud or misrepresentation by the vendor as to a material fact, where the purchaser, acting with reasonable prudence, had a right and did rely upon the representation.”

3. ' Trial, § 862 -—rule as to directing verdict. Where there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration had been proved, then the cause should be submitted to the jury. The same rules are applicable where the defendant introduces evidence tending to support an affirmative defense to the plaintiff’s cause of action and the plaintiff, at the close of defendant’s evidence, moves for a directed verdict in his favor.

4. Contracts, § 337 —remedies of person fraudulently induced to enter into a contract. “A person who has been fraudulently induced to enter into a contract may repudiate the contract and tender back what he has received under it, may recover what he has parted with or its value, or he may affirm the contract, keeping what he has derived under it, and recover in an action of deceit the damages caused by the fraud. And moreover, if sued upon the contract he may set up the fraud as a defense, or as a basis of a claim for damages by way of recoupment or counterclaim.”


author: Mr. Presiding Justice Baker

text:
    Anna C. Hallstrom, Appellant, v. James T. McCullough and Susan F. McCullough, Appellees.
    Gen. No. 20,413.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Appeal dismissed.
    Opinion filed April 13, 1914.
    Statement of the Case.
    Bill by Anna C. Hallstrom against James T. McCullough and Susan F. McCullough on which a ternpor ary injunction was obtained. From an order dissolving the injunction, complainant appeals.
    Martin & Martin, for appellant.
    Louis J. Pierson, for appellees.
    Abstract of the Decision.
    1. Appeal and ebbob, § 309

      —when order dissolving injunction is interlocutory order. Where a bill seeks other relief than an injunction, an order dissolving the injunction is an interlocutory order and not in legal effect a final decree dismissing the bill.
    2. Appeal and ebbob, § 309

      —right to appeal from interlocutory order dissolving injunction. Section 123 of the Practice Act, J. & A. 1[ 8661, providing for appeals from interlocutory orders does not authorize an appeal from an order dissolving an * See Illinois Notes Digest, Vois. XI to XV and Cumulative Quarterly, samo tcpic and section number.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Presiding Justice Smith

text:
    Sampson W. Moon for use of Charles Heddon, Appellee, v. Charles E. Roberts, Appellant.
    Gen. No. 19,270.
    Patents, § 33

      —provision in royalty contract construed. A provision in a royalty stating that the “Party of the second part agrees that the minimum amount of royalties to be received by said party of the first part shall be $200 per month, provided, however, that no forfeiture of this contract shall be had under this clause if an amount equal to $600 be paid as royalties during any three consecutive months,” construed to be a provision for forfeiture and not an absolute undertaking by the party of the first part to pay $200 during the life of the patent in case the royalties did not amount to the minimum sum mentioned.

      Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed April 21, 1914.
    William Sherman Hay, for appellant; Hay & Brown, of counsel.
    Patrick F. Murray, for appellee; John T. Murray, of counsel.

      See Illinois Notes Digest, Vois. XI to XV and Cumulative Quarterly, samo tcpic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.

In this action appellee, Moon, for the use of his assignee, Heddon, seeks to recover from appellant, Roberts, the minimum amount of license fees or royalties per month from July 17, 1909, until May 17, 1911, which it is alleged appellant Roberts agreed to pay Moon by a written agreement made on July 17, 1907. The plaintiff, appellee, had judgment below on an instructed verdict for $3,600.

The principal question on which the case turns is the construction to be given to the contract and particularly the seventh paragraph thereof.

The contract recites that the first party, Moon, is the inventor of certain new and useful improvements in electrical vibratory massage machines for which he had filed application for letters patent of the United States, and also improvements for which application had not been filed; and that appellant, Roberts, was desirous of manufacturing and selling machines containing such improvements. By the first and second paragraphs of the contract, Roberts is licensed and empowered exclusively to manufacture and sell the machines in the United States and Canada for the term of the patents, subject only to whatever rights, if any, which the Horto Electric Company acquired in the improvements prior to January 1, 1907, which were in litigation. By the third paragraph of the contract, Roberts agreed to make full and true returns upon the fifth days in every month for the preceding month of all machines containing the patented improvements manufactured by him. In the fourth paragraph, Roberts agreed to pay Moon a license fee named upon every machine manufactured by him, based upon the retail price of such machine, and the retail prices and license fees are therein specified in detail; and it is further provided that the license fee on machines operated by battery, and those adapted for doctors’ use and those adapted for use on both direct and alternating currents should thereafter be agreed upon and should be between ten and twelve per cent, of the retail price.

The fifth paragraph provides for the termination of the license by Moon, upon the failure of Roberts to make returns or to make payments of license fees as in the contract provided. By the sixth paragraph, Roberts is required to make the machines in good workmanlike manner out of the best quality of material and to stamp every machine with the words “Moon Vibrator,” or such other words as may be agreed upon, and to use his'best endeavors in the manufacture and sale of the machines, and to properly advertise them.

The seventh paragraph upon which this action is based reads as follows:

“7th. Party of the second part agrees that the minimum amount of royalties to be received by said party of the first part shall be $200 per month, provided, however, that no forfeiture of this contract shall be had under this clause if an amount equal to $600 be paid as royalties during any three consecutive months. This minimum feature of this contract shall not be applied to the first six months after the date hereof. This clause shall be subject to fire, strikes and like causes beyond the control of the second party. ’ ’

The subsequent paragraphs of the contract have no bearing upon the question here involved and need not be stated.

The question is whether the undertaking of Roberts, appellant, is absolute to pay appellee Moon at least $200 per month as royalties during the life of the patents or so long as the patentee Moon elected to continue the contract or license in force, although the royalties specified in the fourth paragraph of the contract do not amount to that sum as contended by appellee ; or whether, on the other hand, Eoberts has the election or alternative to pay the excess over the royalties up to the sum of $200 per month, or $600 for any consecutive three months and thus preserve the license from forfeiture, or to refuse to pay beyond the amount of the royalties, subject only to the hazard of haying his right to manufacture forfeited at the election of Moon or his assignee, as contended by appellant Eoberts.

In construing contracts the court in Street v. Chicago Wharfing & Storage Co., 157 Ill. 605, 613; said:

“The rule is, that the intention of the parties must govern, but that the intention is not to be sought merely in the apparent meaning of the language used, but that the meaning of this language may be enlarged or limited according to the true intent of the parties, as made manifest by the various provisions of the contract considered as a whole. (Robinson v. Stow, 39 Ill. 568; Chicago, Madison & Northern R. R. Co. v. National Elevator Co., 153 id. 70; Bull v. City of Quincy, 155 id. 566.) In Field v. Leiter, 118 Ill. 17, we said that greater regard is to be had to the clear intent of a contract, when ascertained, than to any particular words which may have been used in the expression of that intent. In Hesse v. Stevenson, 3 B. & P. 574, the court used this language, which was quoted with approval by this court in Robinson v. Stow, supra; ‘However general the words of a covenant may be, standing alone, yet if, from other covenants in the same deed, it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, the court will limit the operation of the general words.’ ”

In Fairbanks, Morse & Co. v. Guilfoyle, 33 Ky. Law Rep. 408, the court of appeals of Kentucky had before it a contract whereby the defendant, in consideration of the exclusive right to manufacture and sell track levelers patented by plaintiffs, agreed to pay them a royalty of $1 for each set manufactured and sold, excepting for those sold to a certain railroad on which the royalty was to be fifty cents a set, and agreed that the royalty should average $200 a year, and if the royalties for any year, together with those paid for previous years, did not average $200 per year, plaintiffs could terminate the contract on a stipulated notice, unless the defendant paid them an amount sufficient to bring up the average to that sum. It was held that the defendant did not agree absolutely to pay a royalty of $200 a year, and on failure or refusal to do so the plaintiffs could only terminate the contract.

In Wing v. Ansonia Clock Co., 102 N. Y. 531, the question was whether the Ansonia Clock Company had made an absolute undertaking to pay at least $8,000 in each year for royalties under a contract that contained a provision by which the company agreed to pay at least the sum of $4,000 per annum for each and every year from January 1, 1882, by way of royalties or otherwise, for the manufacture of pianofortes containing five or more octaves with the patented improvements, or else forfeit the right to manufacture such pianofortes under the license given by the contract, if the parties of the first part should so elect by notice in writing to that effect within ten days of the close of any year in which less than $4,000 was paid; and by a second clause a similar provision was made for the payment of another sum of $4,000 on the same conditions on account of another class of instruments. The court held, considering the contract as a whole, that the undertaking of the Ansonia Clock Company was not an absolute one to pay any sum over the royalties required to be paid, but that it had the election, in case the royalties upon instruments manufactured did not amount to the sum specified, to pay the excess up to that sum, or refuse to pay subject to the hazard of a forfeiture of its license at the election of the patentees, and that, therefore, an action to recover such excess was not maintainable.

In Ebert v. Loewenstein, 42 App. Div. (N. Y.) 109, the court had before it for consideration a contract in which the defendant had agreed to pay the plaintiff as royalty for the exclusive right to manufacture a patented article five cents for every article manufactured, and that the royalties he should pay should amount in the aggregate each year to at least $3,000, and the plaintiff agreed to continue the license if defendant should make up the deficit in cash if the royalties did not amount to $3,000, and the plaintiff was given the option of terminating the license if the annual income on the royalties was less than $3,000. The court held that the contract did not bind the defendant absolutely to make up the deficit, hut that it gave the patentee the right to put an end to the contract if he saw fit on notice, in which case the defendant would he called upon to determine whether he should pay enough to make up the full $3,000, or allow the contract to be terminated.

Applying the principles and authorities above quoted and cited to the record and contract before us, it is clear, we think, that by the seventh clause, above quoted in full, the parties intended to treat of and provide a basis for a forfeiture of the contract in case the minimum amount of royalties, which Moon was to receive under the terms of the contract and the amount of the business contemplated in the contract, did not result in royalties amounting to $600 during any three consecutive months. There is no absolute undertaking in this clause of the contract that Roberts should pay $200 per month during the life of the patent in case the royalties due under the fourth paragraph of the contract did not amount to the minimum amount mentioned in this seventh clause. This clause is evidently a provision of the contract inserted for the benefit of Moon to enable him to terminate the contract with Roberts in case the expected income from the royalties due under the contract did not amount to $200 per month or $600 for three consecutive months. It sets up merely a measure of expected income from royalties, and in the event that such measure was not reached under the terms of the contract, Moon would have a right to forfeit the contract unless Roberts paid him the difference between the actual royalties earned and the minimum amount named. The whole paragraph is a provision for the termination or forfeiture of the contract under the conditions therein named. The absolute obligation of Roberts to pay royalties is set forth in the fourth paragraph of the contract, in which that subject is specifically treated. If it was intended by the parties to the contract that Roberts was to pay Moon at least $200 per month in the nature of guarantied royalties, such a provision or undertaking would naturally appear in the fourth paragraph of the contract where that subject is treated.

The third, fourth and fifth paragraphs of the contract appear to be clearly and carefully drawn, and they provide that Roberts should pay a specified fee for each kind of machine manufactured, for detailed monthly statements of all machines manufactured, and for the termination of the license for failure to pay or make returns as provided. But no provision, reference or suggestion is made in any of those paragraphs or any other paragraph in the contract whereby Roberts might be called upon to make a minimum monthly payment. If the contention of appellee herein had been within the intent of the parties, that the payment of a minimum amount of royalties was to be assumed by Roberts absolutely, surely language as plain and unambiguous as that used in the third, fourth and fifth paragraphs , of the contract would have been used in the seventh paragraph; for this obligation, as contended for by Moon, involved the imposition upon Roberts of the burden of paying an aggregate sum of $43,-600 during the life of the patents, whether any machines were manufactured and sold or not. A liability of that considerable proportion, if intended to be contracted for by Moon and imposed upon Roberts, would surely have been embodied in some clear and specific covenant, and not left to the general language used in the seventh paragraph.

It is only by inference, or a doubtful and strained construction of the language used in a paragraph devoted to another and different subject, that an absolute agreement to pay the ‘‘minimum amount” of royalty can be held to be made. No such intent is expressed in the other provisions of the contract. On the contrary, it is excluded and negatived by the specific provisions of paragraphs 3 and 4. The machine was new, untried and imperfect, requiring further experiments, changes and alterations; and it is unreasonable to suppose that any such absolute undertaking could have been in the minds of the parties at the time and unde'r the circumstances existing when the contract was made. No other inference from the facts shown by the record can be drawn than that Moon himself, while the second contract of July 17, 1908, was in force, and while the Moon Vibrator Company, of which Moon was the manager and appellant the financial backer, was engaged for a year in experimenting with and attempting to perfect the vibrator, was wholly unable to produce a machine of any practical or merchantable value.

In the argument on behalf of appellee, reliance is placed on Linington v. Strong, 90 Ill. 556. The agreement under consideration in that case, after fixing the royalty per gross of pinchers made and sold and providing for keeping accurate book accounts of the number of pinchers manufactured and sold and for true statements therefrom at the end of each quarter, provided, “and also agrees to pay the royalty on at least 2,500 dozen of said pinchers each year during the term aforesaid.”

This provision is a direct and positive undertaking to pay the royalty on 2,500 dozen pinchers each year. It is a very different provision from the one here involved.

In Preston v. Smith, 156 Ill. 359, also relied upon by counsel for appellee, the agreement provided, in connection with other agreements of the licensee, as follows: “Said E. B. Preston & Co. further agree that the royalty paid to said C. L. Smith shall equal at least $450 per annum. In case they do not reach this amount this agreement can be canceled by C. L. Smith, and a new one made that will be satisfactory to him.” Here a clear intention is expressed to the effect that Preston & Company are to pay a royalty of $450 per annum, and then there follows a provision for a specified royalty of fifty cents per dozen for hydrant swivels of a certain size. The agreement to pay at least $450 per annum as royalty is in immediate connection with the specified royalty of fifty cents per dozen, and clearly indicates, as expressed in the agreement, an intent that Preston & Company were to pay at least $450 per annum, even though the specified royalties immediately provided for thereafter should" not equal that amount. There is no similarity in that contract to the one now before us. The intent is clear in that contract while no intention is manifested in the contract now under our consideration, either considered as a whole, or considered with reference to the provisions of paragraph 7. Preston v. Smith, supra, is not applicable, in our opinion, to the case at bar.

In our opinion, the contract before us does not contain an absolute covenant to pay the minimum royalty mentioned in paragraph 7, nor is such intent to be gathered from the contract as a whole. This construction of the contract is vital to the case, and makes it unnecessary for us to discuss any of the other questions raised in the briefs and arguments. The contract furnishes no basis for the recovery of the judgment below, and the judgment is accordingly reversed.

Reversed.


author: Mr. Presiding Justice Smith Mr. Justice Barnes

text:
    In re Estate of Josephine King, deceased. On Appeal of Jessie Melick, Administratrix, Appellant, v. Central Investment Company, Appellee.
    Gen. No. 19,300.
    1. Corporations, § 683

      —necessity of foreign corporations re-qualifying under the Act of 1905. A foreign corporation having qualified in 1897 to do business in this State, held not required to requalify under the Act of 1905, J. & A. 1T 2525.
    2. Corporations, § 661

      —when defenses of want of corporate existence or abuse of powers of foreign corporation not available. Where a foreign corporation organized to construct buildings, to do general contracting and building business, and to do a general collection business and authorized to do business in this State, sues a tenant for rep.t, the action cannot be defeated by a defense of the tenant that the corporation has no corporate existence or that it has abused its rights by acquiring more real estate than it actually needs to carry on its business, since such questions can only be raised by the State in a direct proceeding by quo warranto.
    3. Judgment, § 519

      —matters of which a judgment in forcible entry is res adjudicata. A judgment in favor of a foreign corporation in a suit by it in forcible detainer is res adjudicata on all defenses which could have been made in the case, including the questions of the validity of the lease, the right of the corporation to make the lease and the right of the corporation to sue for possession and recover thereunder.
    4. Landlord and tenant, § 504

      —liability of tenant on covenants in lease after recovery in forcible detainer. Under a provision in a lease that the lessor in default of payment of the rent may take possession either by forcible detainer or otherwise, without the same working a forfeiture of the rents to be paid and the covenants to be performed during the full term of the lease, held that the lessor recovering a judgment in forcible detainer could thereafter sue and recover under various covenants in the lease.
    Barnes, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.

      Statement by the Court. On October 14, 1907, the claimant, the Central Investment Company, a New Jersey corporation, entered into a lease with deceased, Josephine King, whereby said Central Investment Company demised to said deceased the double store of the premises known as Nos. 199 and 201 East 55th street in the city of Chicago, for a term commencing November 1, 1907, and ending October 31, 1910, at a monthly rental of $75 from November 1, 1907 to April 30, 1909, and at a monthly rental of $80 from May 1, 1909 to October 31, 1910, the rent being payable in advance on the first day of each month.
    The lease was in the usual form and contains the usual provisions of leases used in Chicago. The provisions of the lease, material for the consideration of the issues presented in this case, are as follows:
    Clause 2 of the lease provides:
    ‘ ‘ That said leased premises are entered upon in good repair; that the party of the second part will keep said premises in good repair and will keep said premises and appurtenances, including catch-basins, vaults and adjoining alleys, in a clean and healthy condition, according to the city ordinances and direction of the proper public officer, during said term and ‘upon the termination of this lease, in any way, will yield up said premises to party of the first part in good condition, loss by fire and ordinary wear excepted, and deliver the keys at the office of W. K. Young & Bro., Chicago, 111.’ ”
    Clause 5 of the lease provides:
    “Said party of the second part will pay (in addition to the rent above specified) all water rents taxed, levied or charged on said demised premises for and during the term for which this lease is granted.”
    Clause 7 provides:
    “If said party of the second part shall abandon or vacate said premises, the same may be re-let by party of the first part for such rent and upon such terms as said first party may see fit; and if a sufficient sum shall not thus be realized, after paying the expense of such re-letting and collecting, to satisfy the rent hereby reserved, the party of the second part agrees to satisfy and pay all deficiency.”
    The last paragraph of clause 9 provides:
    “The party of the second part further covenants and agrees to pay and discharge all reasonable costs, attorney’s fees and expenses that shall be made and incurred by the party of the first part in enforcing the covenants and agreements of this lease; and such costs, fees and expenses may be taxed as costs in any suit or proceeding that may be brought to enforce any of such covenants or agreements; and all the parties to this lease agree that the covenants and agreements herein contained shall be binding upon, apply and inure to their respective heirs, executors, administrators and assigns.”
    The last paragraph in the lease provides that if default be made in the payment of rent, or any instalments thereof, that the lessor may confess judgment for the amount due with lawful interest thereon, together with the costs and five per cent, of the amount of rent due for attorney’s fees.
    The lease contains three special typewritten clauses pasted on the original lease. The third of said special clauses is as follows:
    “It is further covenanted and agreed that in case of any default by the lessee in the payment of rent or otherwise, the lessor, or his agents, shall have the right to re-enter and take full and absolute possession of the above premises, either by forcible entry, detainer proceedings, or otherwise, and hold and enjoy the same fully and absolutely, without such re-entry working a forfeiture of the rents to be paid and the covenants to be performed by said lessees during full term of this lease. The said lessee hereby waives his or her notice under any statute in the State of Illinois relating to forcible entry and detainer.”
    Josephine King took possession of the premises described in the lease and remained in possession until her death, which occurred on October 25, 1908. She paid rent under said lease up to and until the time of her death; that is to say, until October 31, 1908. 'After her death, the administratrix of her estate, Jessie Melick, continued in possession under the lease for about eight months, refusing, however, to pay rent. On January 28,1909, the Central Investment Company caused the following notice to be served upon said administratrix:
    “To Jessie Melick, personally and as administratrix of the estate of Josephine King, deceased:
    You are hereby notified that immediate possession of the premises at numbers 199 and 201 East 55th street, in Chicago, 111., is demanded of you by the Central Investment Company, the lessor of said premises, on account of your default in the covenants in the lease of said premises, made with Josephine King, the said deceased, as lessee. The landlord and lessor is hereby availing itself of the typewritten clause numbered 3 in said lease, providing for right of re-entry after lessee’s default, without forfeiting the lease or the rights of the lessor thereunder. The default complained of is non-payment of rent according to the terms of the lease since November 1, 1908.
    Central Investment Company,
    by Victor M. Harding, Attorney.”
    Jessie Melick, as administratrix, having failed either to pay rent or vacate, suit was commenced on February 2, 1909, in the Municipal Court of Chicago against her as such administratrix, in forcible detainer, and also under the statute to recover the rent then due, amounting to $300. On February 27, 1909, judgment was entered in the Municipal Court against said administratrix for possession of said premises and also for the rent of $300 then due. From this judgment the adpiinistratrix, Jessie Melick, prayed and perfected an appeal to this court, where, in consequence of said appeal, the Central Investment Company was required to follow such appeal, employ counsel, enter its appearance, prepare and file brief and additional abstract, etc. On June 16, 1911, the judgment of the Municipal Court was affirmed in this court. Central Investment Co. v. Melick, 162 Ill. App. 474.

      After the administratrix vacated the premises, which she did about July 1, 1909, the Central Investment Company caused necessary repairs to be made so.as to put the premises in condition to re-rent, and on December 29, 1909, through its agents, W. K. Young & Bro., rented the premises to J. D. O’Neill, for the term commencing January 1, 1910, and ending April 30, 1912, at a rental of $50 per month from January 1, 1910 to April 30, 1910, and at a rental of $70 per month from May 1, 1910 to April 30, 1912, which covered the unexpired term of the Josephine King lease. Under the O’Neill lease, the Central Investment Company was required to pay the water tax which the deceased had covenanted to pay under her lease. Under the O’Neill lease, the Central Investment Company collected $620 during the unexpired term of the Josephine King lease, and paid out for water tax during the unexpired term of the King lease the sum of $21.06. The Central Investment Company also paid to Barnard & Corrigan, for cleaning out sewer choked up with grease, $6; to Theodore Anderson, for repairs, etc., to put the premises in shape to re-rent, $20; to W. K. Young & Bro., commissions on re-renting the premises, $18.60; to J. J. Butler, plumber, for cleaning grease from sewer, $31.50, for connecting radiator, disconnected by deceased, $2.75, for putting in new connecting sewer made necessary by stoppage by grease, $100; to Victor M. Harding, attorney’s fees in the Municipal Court in forcible detainer suit, including preparation of bill of exceptions, $150, and $5 which he paid for stenographer’s fees; to the clerk of the Appellate Court, appearance fee on appeal in forcible detainer case, $5, and final costs in the Appellate Court upon getting a mandate, $9.25; to Barnard & Miller, for printing brief and additional abstract, $18.75. The Central Investment Company also incurred obligations for reasonable attorney’s fees in the Appellate Court, $100, of which $75 was paid to one Charles E. Anthony, which did not include services by him on the oral argument, etc. The Central Investment Company, claimant, was compelled to and did employ counsel, who prepared and filed the claim in question in the Probate Court within the year allowed by law, and who, after the expiration of the Josephine King lease, prepared and filed the amended claim, thereby giving proper credit for rent collected under the O’Neill lease, etc.; and the counsel who tried the case in the Probate Court and secured the allowance of such claim, and who, upon appeal to the Circuit Court, entered claimant’s appearance and tried the case there and secured an allowance of such claim, for which services the testimony in the case shows that $250 would be a reasonable and customary charge.
    The amended claim of the Central Investment Company was sworn to July 10, 1911, and filed in the Probate Court on July 11, 1911, after the expiration of the King lease and after the forcible detainer case had been affirmed in this court. The claim, as so amended, includes the above mentioned items paid out and expenses of the claimant, and also includes five other small items made by the claimant, which, however, were • excluded and disallowed by the court and are not now involved; such amended claim also included claim for interest at the legal rate on said several instalments for rent, including said judgment of $300 entered in the Municipal Court, less a credit of the $620 rent collected under the O’Neill lease, together with legal interest thereon.
    The amended claim of appellee was allowed in the Probate Court on January 27, 1912, for the sum of $1,826.26. The case was appealed by Jessie Melick, administratrix, to the Circuit Court, where the amended claim was, by leave of court, further amended as to the item of $100 therein charged as reasonable attorney’s fees for collection of the rent.
    On October 21, 1912, the case was heard in the court below without a jury, and, after hearing the evidence and arguments of counsel, the court found the issues for the Central Investment Company on all items, except items of January 8, 1909, for $5 for attorney’s fees, and March 24, 1909, $6 for costs paid; the item of July 29, 1909, $2 for reporting case; $10 fee to Victor Harding; the item of February 18, 1909, cash paid to James A. Eose, Secretary of State, $1.50; and the $100 paid J. J. Butler for new sewer connection. The court also refused to allow $200 for attorney’s fees for collection of rent as asked in the amendment to the amended claim, but did allow $100 therefor. The court allowed interest on the $300 judgment in the Municipal Court, but refused to allow interest on the remainder of the several instalments of rent. The claim, as allowed by the court below, was for the sum of $1,814.80, for which judgment was entered to be paid in due course of administration. This appeal is from that judgment.
    Robert D. Melick, for appellant.
    Gail E. Deming, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

The administratrix resisted the claim in the court below on the following grounds and insists upon them here: (1) Appellee corporation was not authorized, on October 14, 1907, under the Act of 1905 (J. & A. ¶ 2525), as to foreign corporations, to do business and make leases on real property and the lease in question; (2) that real estate brokerage business of buying, selling, holding, reletting and subleasing cannot be carried on in Illinois by a foreign corporation; (3) that appellee had not procured the necessary certificate from the Secretary of State, pursuant to the Act of 1905, wherein the powers and objects were stated it may exercise herein not in conflict with the law or public policy of the State of Illinois; (4) that it could do no business for which a domestic corporation could not be organized, and that the lease to Josephine King,, deceased, was void; and, further (5) that by the forcible detainer proceedings in the Municipal Court, February 2, 1909, the lease was terminated and canceled and has ceased to exist; and that the several items of appellee’s claim are not covered by or recoverable under the terms of the lease.

The charter of appellee was introduced in evidence and appears in the record. Under its charter the Central Investment Company was authorized, among other things, to do and carry on the following businesses, all of which could be legally carried on in the State of Illinois: First, the building of houses and other buildings, structures and improvements and other mechanical business; sixth, to do a general contracting and building business; seventh, to do a general collection business. The Central Investment Company appears to have filed its charter with the Secretary of State of Illinois on September 28,1897, and on that date the Secretary of State issued its certificate, reciting, among other things:

“Whereas, Central Investment Company, incorporated under the laws of the State of New Jersey, has filed in the office of the Secretary of State duly authenticated evidence of its incorporation, as provided by law, and has, in all respects, complied with the requirements of law governing foreign corporations; * * * that said Central Investment Company is from the date hereof duly authorized to do business in the State of Illinois for a term of ninety-nine years, and is entitled to all the rights and privileges granted to foreign corporations under the laws of this State.”

In Central Investment Co. v. Melick, 162 Ill. App. 474, supra, which was the appeal from the judgment of the Municipal Court in forcible detainer case, brought by the Central Investment Company against Jessie Meliek, administratrix, under the lease in question in this case, it was held that the Central Investment Company had in all respects complied with the requirements of law governing foreign corporations, and that this was all that was necessary for it to do in order to enable it to carry on the business in this State.

In White Sewing Machine Co. v. Harris, 252 Ill. 361, the Supreme Court held:

“In our judgment the legislature by the act of 1905 intended that it should be a mere continuance of the main features of the former act, with some modifications as to details, which would not require foreign corporations already doing business in the State to re-qualify or pay again the license fee already paid before they could do business in the State. Appellant, by its license issued under the act of 1897, was authorized to bring this suit.”

We think it clear, therefore, that the Central Investment Company, having qualified on September 28,1897, to do business in this State, was not required to re-qualify under the Act of 1905.

The Central Investment Company, as we have seen, was authorized by its charter to carry on various kinds of business authorized to be done in this State by corporations organized under the laws of this State. It was, under the license issued to it, authorized to do and carry on in this State any of the several objects for which it was organized, as stated in its charter, which could be lawfully carried on by a domestic corporation; in other words, it had the same power and authority to carry on the business for which it was organized in this State that a domestic corporation would have, no more nor less. It had the right to carry on in this State all businesses mentioned in the first, sixth and seventh objects mentioned in its charter. There was a law authorizing such corporation. It was a corporation de jure under the express provisions of the statutes of Illinois, and it was authorized to own and hold real estate sufficient for its needs. There being a law of Illinois authorizing the Central Investment Company to do business in this State, and being-authorized to own and hold sufficient real estate for its needs, if it has abused such rights and acquired more real estate than it actually needs to carry on its business, such right can only be questioned by the State in a direct proceeding by quo warranto. We think this doctrine is well settled in this State. In Imperial Building Co. v. Chicago Open Board of Trade, 238 Ill. 100, the main question was whether the Imperial Building Company was legally organized and whether the lessee could raise that question in an action for rent on the lease, and it was held that the tenant might raise the question when there was no law authorizing such a corporation. The Supreme Court, however, stated the doctrine applicable where there had been an attempt in good faith to organize under a law authorizing the incorporation and corporate functions were exercised by the corporation so organized, and held:

“The general rule is, that where there is an attempt in good faith to organize under a law authorizing the incorporation, and corporate functions are exercised, this makes the organization a corporation de facto, and its legality cannot be questioned collaterally or by one who deals with it as a corporation. In such cases the introduction in evidence of the charter and proof of user, and that the party seeking to deny the legality of the corporation dealt with it as a corporation, sufficiently proves it a corporation de facto, and whether there may have been some irregularities in perfecting the incorporation will not be inquired into. The legality of such incorporation can only be attacked by the State in direct proceeding.”

In the Imperial Building Co. case, supra, and in the case of People v. Shedd, 241 Ill. 155, there was no legitimate business the corporations could do under their charters; and having been incorporated simply and solely to deal in a particular piece of real estate in each case, it necessarily followed from the statement of the corporation in each case that there was no law authorizing such corporation. In the Shedd case, supra, the Court said:

“In Rector v. Hartford Deposit Co., 190 Ill. 380, the object of the corporation was ‘to erect and operate safety deposit vaults.’ This is a business distinct from the ownership, management and control of real estate. It is necessary to have a location for the business of receiving and storing valuable packages and providing vaults for that purpose, just as it is necessary to have a place for operating a machine shop, a mill, a hotel or a warehouse, all of which are purposes for which a corporation may be organized. The corporation built a fourteen-story building, 150 feet high and 91 feet by 50 feet on the ground, having a basement, eight stores and over one hundred suites of offices. Its only safety deposit vault was in one end of an office on the fourth floor, and its inside dimensions were 5x6x8 feet. The vault and its earnings were, of course, of no consideration in the business actually transacted by the corporation, and it was contended that the erection of such a building was a gross abuse of its corporate powers and that the corporation could not recover rent upon a lease of one of the rooms of the building, since the ownership of the building was beyond its corporate powers. But the court held that since the' corporation had power to own a building-necessary for its corporate purposes, it could be required to answer to the State, alone, for an abuse of such power, and that that question could not be availed of as a defense to a suit for rent.”

So here, in this suit for rent by the Central Investment Company, duly authorized in New Jersey and in this State, to do business which required the owning of real estate for the purpose of conducting and carrying on its business, it cannot in this action for rent be defeated by a defense, at the instance of a tenant, that it has no corporate existence. It is required to answer to the State alone on that question. In the Rector case, supra, the Supreme Court further said at page 389 of the opinion:

“We think it has never been held in this State, or understood to be the law, that the question whether such power has been abused could be raised and availed of in defense in a proceeding wholly collateral to the question of the right and power of the corporation in the premises. The earlier decisions of this court are to the effect that a corporation having general power to own real estate for corporate purposes and to acquire real estate in collecting debts due it, may be required to answer to the State, and to the State only, for an alleged usurpation of power in the respect of the ownership and enjoyment of landed property.”

To the same effect are Springer v. Chicago Real Estate Loan & Trust Co., 202 Ill. 17, and Hudson v. Green Hill Seminary Corporation, 113 Ill. 618.

The Central Investment Company appears to have complied with the law of this State, and is entitled to do business in this State, and it also appears from the charter of the company offered in evidence by the attorney for appellant, that the company is authorized to lawfully carry on several of the objects for which a corporation may be formed in this State. Being so authorized, to do business in this State, the statute expressly gives it the power to hold real estate sufficient for its needs, and if it has abused such right, the State, and the State alone, can raise the. question.

Furthermore, appellant is estopped from questioning the right of appellee to sue or recover under the lease in question. The suit brought by the Central Investment Company in the Municipal Court was an action under the statute for the possession of the premises unlawfully withheld, and for rent due up to the time of the commencement of the suit under the lease in question. It was between the same parties as in this case. It involved the question of the validity of the lease here in controversy, and the right and power of the Central Investment Company to make such a lease and to collect rent thereunder. It also involved the question which counsel seek to raise in this case, of the right under special clause 3, to bring suit in forcible detainer before the termination of the lease. Judgment was duly entered in the cause, not only for the possession but also for the several instalments of rent due. On appeal to this court the judgment was affirmed. Central Investment Co. v. Melick, supra. Under the well established principle of law, it was the duty of appellant to present any and all defenses which she had to such action, including the right of the Central Investment Company to make the lease, its right to sue for possession and' recover thereunder, and the liability of the appellant herein under the lease. All such questions here raised, which could have been raised and presented in that case, are settled and adjudicated. The only questions here raised and discussed by appellant, which were not settled in that case, is the effect of the proceedings in that case upon the lease itself as to its determination or cancellation, and the amount due, if any, at the commencement of this action.

As to the effect of the proceedings in the former case upon the lease itself, clause 3 of the lease, quoted in the statement preceding this opinion, provides that the lessor should have the right, in case of default by the lessee in the payment of rent, to re-enter and take full and absolute possession of the premises without such re-entry working a forfeiture of rents to be paid and the covenants to be performed by the lessee during the full term of the lease. Under this express provision of the lease, the Central Investment Company was authorized, in case of default, to re-enter and take possession of the premises, either by forcible detainer proceedings or otherwise, without the same working a forfeiture of the lease. Grommes v. St. Paul Trust Co., 147 Ill. 634. The lease in the Grommes case contained a similar clause to the special clause in this lease. In that case default was made in the payment of rent and suit was commenced for possession of the premises. The Supreme Court, after reviewing cases bearing on the question quite fully, on page 643 of the opinion, says:

“There is nothing illegal or improper in an agreement, that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding there has been a re-entry for default; and, if the parties choose to make such an agreement, we see no reason why it should not be held to be valid as against both the tenant and his sureties.”

See also the case of Heims Brewing Co. v. Flannery, 137 Ill. 309, where there was a covenant in the lease in controversy in that case, that the obligation on the part of the defendant to pay the stipulated consideration should not cease by reason of the surrender of the building. To the same effect is the case oi Springer v. Chicago Real Estate Loan & Trust Co., supra.

Upon a review of the evidence, we think the amount of the judgment of the Circuit Court was fully justified thereby. There is no error in the record, and the judgment is affirmed.

Affirmed.

Mr. Justice Barnes

dissenting: I think the recovery should be limited to what is due on the Municipal Court judgment of $300; that the proceeding in that court was not res adjudicata of the question here involved, the right to recover for what is against public policy of this State; and that direct proceedings by the State are not necessary to present such question.