text:
    Paul I. Muschelewicz, Defendant in Error, v. Paul M. Kamradt et al., Plaintiffs in Error.
    Gen. No. 23,029.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Daniel W. Maddox, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Petition for writ of mandamus by Paul I. Muschelewicz, petitioner, against Paul M. Kamradt, the City of West Hammond, its city clerk and board of local improvements, to compel the issue of vouchers to petitioner against the first instalment of certain special assessment funds for services in spreading assessments. From an order granting a peremptory writ of mandamus, defendants bring error.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for plaintiffs in error; Perry S. Patterson, of counsel.
    Samuel K. Markman, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

1. Mandamus, § 1 — when writ of, toill not issue. A writ of mandamus will not issue where the party seeking such writ has not proved his right thereto by clear and satisfactory evidence.

2. Municipal corporations, § 146* — when illegality of appointment precludes recovery of compensation. Where a city attorney illegally appoints a person to spread assessments even though such appointment is ratified by the city, there is no legal contract existing under which there can be a recovery for any specific sum for services rendered.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    Joseph Rinehart, Appellee, v. William J. Shedd, Appellant.
    Gen. No. 23,032.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Joseph Rinehart, plaintiff, against William J. Shedd, defendant, to recover the sum of $180 alleged to be due under a contract of employment as farm superintendent. From a judgment for plaintiff for $180, defendant appeals.
    John 0. Traihor, for appellant.
    A. B. Dumtmra and Abel L. At,leu, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1414 — when decision of trial court on-controverted questions of fact mil not he disturbed. The decision of the trial court on controverted questions of fact, in view of the fact that the trial judge, who has had an opportunity to see and hear the witnesses who have testified in the case, is better able to determine such questions, will not be disturbed on appeal.

2. Master and servant, § 84* — when evidence sufficient to show that contract was to go into effect immediately. In an action by a farm superintendent to recover for services under an oral contract, where the evidence was conflicting, evidence held sufficient to show that the contract was to go into effect immediately upon the making thereof.

3. Frauds, Statute of, § 89* — when not defense in action on oral contract of employment. Where an oral contract of employment has been fully performed and. nothing remains to be done except the payment of money by the employer, the Statute of Frauds cannot be interposed as a defense to an action on the contract


text:
    Alma Herfurth and Esther M. Connor, Plaintiffs in Error, v. Mrs. R. E. Corigan, Defendant in Error.
    Gen. No. 23,042.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Alma Herfurth and Esther M. Connor, plaintiffs, against Mrs. E. E. Corigan, defendant, to recover rent for the period during which the premises remained vacant, between the date defendant vacated the premises and the day they were rented to another during the term of the lease. Prom a judgment for plaintiffs, defendant brings error.

      Abstract of the Decision.
    Landlord and tenant, § 279

       — when tenant is not warranted in vacating premises because of failure of landlord to properly heat. Even though a lease did contain a provision whereby the lessor of an apartment was bound to furnish heat for the premises, the lessee was not warranted in vacating them where the only complaints made were relative to the heating during the previous winter and he had continued in possession and paid rent until the next succeeding October.
    William English, for plaintiffs in error.
    Joseph R Burres, for defendant in error; Edward H. Rosenberg, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justioe Dever

text:
    Daniel N. Peirce, trading as The Sales Information Bureau, Appellee, v. C. H. Morgan Grocery Company, Appellant.
    Gen. No. 23,049.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Action by Daniel N. Peirce, trading as The Sales Information Bureau, plaintiff, against C. H. Morgan Grocery Company, a corporation, defendant, to recover on a yearly contract for the supplying by plaintiff to defendant of the names of new residents within a certain district. From a judgment for plaintiff for $92, defendant appeals. x
    Abstract of the Decision.
    1. Contracts, § 215

      - — what construction given contract to supply grocery company with names of new residents. A contract for the supplying of a grocery company with the names of new residents within certain districts, in a city must be construed as requiring the use of reasonable efforts to deliver the names of all new residents within the designated districts.
    2. Witnesses, § 224* — what is proper cross-examination of plain-, tiff in action to recover on contract for supplying names of new residents. In an action to recover on a contract for the supplying by plaintiff to defendant, a grocery company, the names of all new residents within designated districts in a city, it is proper for defendant to elicit, by cross-examination of plaintiff, information as to what he did by way of procuring the names of new residents, as to his system of doing work, and as to whether he in fact knew any new residents had moved into the districts, for the purpose of determining whether plaintiff had in fact complied with the terms of the contract.
    3. Contracts, § 387* — when evidence insufficient to show performance of contract for supplying names of new residents. In an action to recover on a contract for the supplying by plaintiff to defendant, a grocery company, the names of new residents within designated districts in a city, where it appeared that the information sent to plaintiff was derived solely from lists of new telephone subscribers, evidence held insufficient to show performance of the services required by the contract.
    Winston & Lowy, for appellant.
    Harris F. Williams, for appellee; Lloyd D. Heth, of counsel.

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

   Mr. Justioe Dever

delivered the opinion of the court.


text:
    Edward A. Mechling, Appellant, v. Henry F. Meyers et al., Appellees,
    Gen. No. 23,057.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Partition, § 9

       — what is rule as to partition of land in which infant is interested. In proceedings to partition land, the right to such partition is imperative and binding upon courts of equity, subject, however, to the duty which the law imposes upon such courts to protect the interests of infants who may be parties to such proiceedings, and to determine whether the best interests of such infants may be conserved by allowing or denying the partition of lands in which such infants have an interest, and it is immaterial whether the infant is a party defendant or complainant.
    2. Infants, § 25* — what is duty of court as to protection of rights of. Infants are peculiarly the wards of a court of chancery, and it is the duty of that court to protect the rights of such infants whenever their interests are presented to the court for adjudication.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Bill by Edward A. Mechling, complainant, against Henry F. Meyers, Louis H. Berkes, Charles W. Bassett, Jessie M. Madison and Francis Boy Bassett, a minor, defendants, for partition of certain real estate in which defendant Meyers had a life estate and the complainant and other defendants a tenancy in common in the remainder. From a decree dismissing complainant’s bill for want of equity, complainant appeals.
    Frank O. Campe and Max C. Liss, for appellant.
    John S. Hummer, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Partition — when evidence sufficient to shoio to be against best interests of minor to partition land. In a suit to partition a remainder in real estate, evidence held sufficient to show that it would be against the best interests of the minor defendant to partition the land.


text:
    The People of the State of Illinois ex rel. Victoria Zajac, Appellee, v. Anthony Ostrowski, Appellant.
    Gen. No. 23,061.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 866

       — when abstract is insufficient. An abstract in bastardy proceedings which was silent as to what proceedings were brought against defendant and as to what verdict or judgment was entered against him, and was otherwise a mere index of the proceedings, held insufficient.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Bastardy proceedings by the People of the State of Illinois on the relation of Yiqtoria Zajac, plaintiff, against Anthony Ostrowski, defendant. Prom a judgment against him, defendant appeals.
    Arnold M. Ehrlich and Thomas E. Swanson, for appellant.
    Maclay Hoyne, for appellee; John P. Cashen, Jr., of counsel.

      See Illinois Notes Digest, Yols. 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 Dever

delivered the opinion of the court.

2. Appeal and errob, § 1752 - — when judgment affirmed. The judgment of the trial court in bastardy proceedings should he affirmed where the appellant files an insufficient abstract.

3. Bastards, § 22* — when evidence supports inference that relatrix was unmarried. In bastardy proceedings, evidence held sufficient to warrant an inference that relatrix was in fact an unmarried woman at the time of her relations with the defendant.


author: Mr. Justice McSurely

text:
    F. C. Pennington for use of I. V. Edgerton, Defendant in Error, v. Grand Trunk Western Railway Company, Plaintiff in Error.
    Gen. No. 22,061.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in'this court at the March term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Behearing denied July 16, 1917.
    Statement of the Case.
    Action by F. C. Pennington for use of I. Y. Edger-ton, plaintiff, against Grand Trunk Western Railway Company, defendant, an intermediate carrier, to recover damages for loss sustained due to delay in transporting a carload of poultry which plaintiff had planned should arrive in New York City by a particular time because of Jewish holidays. From a. judgment for $424.95, a writ of error was prosecuted to the Appellate Court. A decision was rendered (see 199 Ill. App. 479) reversing the judgment of the trial court and a certificate of importance and appeal was granted to the Supreme Court which, in 277 111. 39, reversed the judgment and held that plaintiff could pursue his action against defendant, an intermediate carrier, and remanded the case to the Appellate Court for further consideration.
    Abstract of the Decision.
    1. Cabbiebs, $ 96

       — what are rights of shipper as to time for transporting goods. A shipper of goods is entitled to have his goods transported by the carrier with reasonable dispatch and within the usual and ordinary time that such goods are transported.
    2. Cabbiebs, § 98* — when carrier liable for failure to transport goods with reasonable dispatch. Where a car of poultry is ready before the first of four sections of a train that ordinarily stops to take up such shipments passes through and the car is not taken by any of such sections and, as a result of delay, it arrives at its destination twelve hours late and too late for the market for which it was intended, the carrier is liable for failure to transport goods with reasonable dispatch.
    3. Appeal and ebbob, § 367* — when defenses are not available on appeal. A defendant cannot avail himself on appeal of points relating to his defense which are not included in his affidavit of defense.
    Kretzinger & Kretzinger and L. L. Smith, for plaintiff in error.
    Walter H. Eckert, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Beulah S. Wineberg, Defendant in Error, v. Telzer Unterstitzungs Verein, Plaintiff in Error.
    Gen. No. 22,232.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 782

       — when notice is necessary to render member of benefit society in arrears. The sending of notice by a mutual benefit society to a member that he is in arrears, under a bylaw providing that if a member has failed to pay his dues for three months the secretary shall give him notice and if he does not pay up at the next meeting he shall be deemed to be in arrears, is a condition precedent to a member being in arrears.
    2. Insurance, § 782*^ — what may not be considered in determining whether member of benefit society is in arrears. Items charged against a member of a benefit society, one of which had been carried over from some previous time, and the nature of which is not disclosed, also an assessment the nature of which is not explained nor its regularity proven, and an item for ball tickets, cannot be considered in determining whether the member is in arrears under a by-law providing that a member, who shall fail to pay his monthly dues for three months, shall after certain notice and failure to pay such dues, be deemed to be in arrears.

      Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Beulah S. Wineberg, plaintiff, against Telzer Unterstitzungs Yerein, a corporation, defendant, to recover for a death benefit and funeral expenses because of the death of her husband, Joe Wineberg, a member of defendant order. From a judgment for plaintiff for $135, defendant brings error.
    Charles L. Cohns and Zoline & Levinson, for plaintiff in error; Morris K. Levinson, of counsel.
    Jesse Lowenhaupt and Charles Levitón, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Jacob P. Maihofer, Plaintiff in Error, v. Elizabeth Maihofer, Defendant in Error.
    Gen. No. 22,592.
    (Not to be reported in full.)
    Abstract of the Decision.
    Divorce, § 48

       — when evidence insufficient to show' desertion of husband by loife without cause. On a bill by a husband for divorce on the ground of desertion, where there was evidence that defendant believed that complainant substituted a powder for some medicinal tablets with the intention of poisoning her; that defendant was sent by complainant, on advice of a physician, to a detention hospital, and the evidence was conflicting whether, on her return, she or he was willing to resume marital relations, evidence held insufficient to show that defendant had wilfully and without just cause deserted complainant and had refused to live with him any longer, without any fault on his part.

      Error to the Circuit Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in this' court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Bill by Jacob P. 'Maihofer, complainant, against Elizabeth Maihofer, defendant, for divorce on the ground of desertion, and cross-bill by defendant for divorce on ground of desertion. From a decree dismissing the bill and . cross-bill, complainant brings error.
    Francis E. Croarkin, for plaintiff in error.
    Joseph C. Pisha, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    William Hayes, by his next friend, Defendant in Error, v. H. C. W. Gresens, Plaintiff in Error.
    Gen. No. 22,659.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbob, § 1752

       — when judgment affirmed for insufficiency of abstract. A judgment will be affirmed on appeal where the abstract of record fails to inform the court of the character of the case and of the issue involved.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by William Hayes, a minor, by William Hayes, Ms father and next friend, plaintiff, against H. C. W. Gresens, defendant. From a judgment for plaintiff, defendant brings error.
    Brosius & Mabee, for plaintiff in error.
    Benjamin P. Ackerman, for defendant in error; Jacob Levy and Josiah Burnham, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Hayes, by his next friend, Defendant in Error, v. H. C. W. Gresens, Plaintiff in Error.
    Gen. No. 22,661.
    (Not to be reported in full.)
    'Error to the Municipal Court of Chicago; the Hon. Rimis F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by John Hayes, a minor, by William Hayes, his father and next friend, plaintiff, against H. C. W. Gresens, defendant, for personal injuries. From a judgment for plaintiff, defendant brings error.
    This case was consolidated with Hayes v. Gresens, Gen. No. 22,659, ante, p. 149, and is governed by the decision in that case.
    Brosius & Mabee, for plaintiff in error.
    Benjamin P. Ackerman, for defendant in error; Jacob Levy and Josiah Burnham, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Thomas Regan, by his next friend, Defendant in Error, v. H. C. W. Gresens, Plaintiff in Error.
    Gen. No. 22,660.
    (Not to be «reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Thomas Began, a minor, by, his father and next friend, plaintiff, against H. C. W. Gresens, defendant, for damages for personal injuries due to defendant’s automobile running into a grocery wagon in which plaintiff and two other children were playing, causing the horse to run away and throw the children out. From a judgment for plaintiff, defendant brings error.
    This case was consolidated with Hayes v. Gresens, Gen. No. 22,659, ante, p. 149, and is governed by the decision in that case.
    Brosius & Mabee, for plaintiff in error.
    Benjamin P. Ackerman, for defendant in error; Jacob Levy and Josiah Burnham, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Chicago Record-Herald Company, Defendant in Error, v. Fred Bender Store Fixture Company, Plaintiff in Error.
    Gen. No. 22,980.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 866

       — what are requisites of abstract. The abstract is the pleading of the parties, and must be sufficient to apprise the court of the points which it is claimed necessitate a reversal.
    2. Appeal and ebbob, § 1752* — when judgment affirmed. A judgment will be affirmed on appeal when a sufficient abstract is not filed.
    3. Appeal and ebbob, § 866* — when abstract is insufficient. An abstract which is merely an index, and does not give a suggestion as to what the action is about, is insufficient.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Chicago Record-Herald Company, a corporation, plaintiff, against Fred Bender Store Fixture Company, a corporation, defendant, to recover the sum of $294.75 for advertising alleged to have been furnished according to and by virtue of certain contracts. From a judgment for plaintiff for $294.75, defendant brings error.
    Víctor B. Scott, for plaintiff in error.
    Leon A. Berezniak, for defendant in error; Went-worth, Cavendbr & Kaiser, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    National Trust & Credit Company, Appellant, v. Charles W. Elmes, Appellee.
    Gen. No. 22,873.
    (Not to be reported in full.)
    Abstract of the Decision.
    Garnishment, § 24

       — when goods sold in violation of Bulk Sales Act may be reached by. A stock of merchandise obtained by a vendee by a sale contrary to the Bulk Sales Act, and consequently void as to creditors of the vendor, may be reached by creditors in garnishment proceedings when the vendee still retains possession of the property.
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Action of garnishment by National Trust & Credit Company, plaintiff, against Charles W. Elmes, defendant. From an order entering a finding for the garnishee and discharging him from liability, the National Trust & Credit Company appeals.
    John W. Creekmur and D. J. De Wolfe, for appellant.
    Edward L. England, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Albert B. Stern, Plaintiff in Error.
    Gen. No. 22,990.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Adultery, § 5

       — what evidence is essential to sustain conviction. Evidence that the accused is a married man is essential to sustain a conviction of adultery.
    2. Adultery, § 5* — what evidence is insufficient to sustain conviction. Proof of a single offense is insufficient to support a charge of adultery.
    3. Adultery, § 3* — what constitutes. In order to constitute the crime of adultery, the parties must dwell together openly and notoriously upon terms as if conjugal relations exist; they must cohabit together and there must be an habitual illicit intercourse between them.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Albert B. Stern, defendant, for living in an open state of adultery with one Marion May. From a judgment sentencing defendant to the county jail for a term of one year, defendant brings error.
    Charles E. Erbstein, for plaintiff in error.
    Maclay Hoyne, for defendant in error; George C. Bliss, of counsel.

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

      See Illinois Notes Digest, Yols. XI to XV, a**d Cumulative Quarterly, game topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

4. Criminal law — when MU of exceptions is sufficient. A bill of exceptions in a criminal prosecution for adultery, held sufficient as purporting to contain all of the evidence.

5. Criminal law, § 432 — when objections or exceptions are unnecessary to preserve questions for review. Under section 81 of the Practice Act, as amended in 1911 (J. & A. i 8618), it is unnecessary that the record in a criminal case show any objections or exceptions to the finding or entry of judgment or exceptions to a ruling denying a motion to vacate the judgment in order to preserve such questions for review.


text:
    Braender Rubber & Tire Company, Plaintiff in Error, v. Dueth-Henes Corporation and A. J. L. Dueth, Defendants in Error.
    Gen. No. 22,996.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action of replevin by Braender Rubber & Tire Company, a corporation, plaintiff, against Dueth-Henes Corporation and A. J. L. Dueth, defendants, to recover a stock of rubber tires left by plaintiff with defendants under a contract whereby defendants were to act as distributors and sales agents within designated territory and were to keep the tires in stock in their store. From a judgment for defendants, plaintiff brings error.
    Grossbbrg & Haefehberg,- for plaintiff in error; Morris K. Levinsou, of counsel.

      Abstract of the Decision.
    1. Action, § 68

       — when action of replevin is prematurely brought. An action of replevin -by a manufacturer to recover a stock of rubber tires left with distributing agents under a contract whereby the agents were to keep such tires in stock in their store, and the manufacturer had the option of terminating the contract on thirty days’ notice, is prematurely brought where brought before the service of such notice, as the right to possession would not accrue until the expiration of the thirty-day period.
    2. Action, § 71* — when judgment should be rendered for plaintiff although action prematurely brought. It is error for the trial court to refuse to render a judgment for the plaintiff in an action of replevin, where it appears that, although the action was prematurely brought, the contract under which the goods were held had been terminated by the expiration1 of the thirty-day period limited by the contract for the termination thereof at the time of trial and entry of judgment, and the title was at all times in the plaintiff.
    Charles P. B. Macaulay, for defendants in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Samuel Grossman, Defendant in Error, v. Abe Cohen, Plaintiff in Error.
    Gen. No. 23,001.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action of debt on an appeal bond by Samuel Gross-man, plaintiff, against Abe' Cohen, defendant. From a judgment for plaintiff for $2,000, and $1,646 damages, the debt to be discharged upon the payment of damages, costs and interest, defendant brings error.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 27

       — what must be preserved by bill of exceptions. While, under section 38 of the Municipal Court Act (J. & A. K 3350), it is unnecessary that formal exceptions be taken, the party complaining is not relieved from the duty of preserving, by the bill of exceptions, orders of the court striking various affidavits of defense made against his objection.
    2. Appeal and error, § 1872* — what is effect of assignment of judgment on appeal bond. The assignment of the judgment which a statutory appeal bond was given to secure carries the bond with it.
    3. Appeal and error, § 1860* — what constitutes an affirmance of judgment within appeal bond. The dismissal of an appeal constitutes an affirmance of the judgment of the trial court within the provisions of an appeal bond.
    4. Damages, § 221* — when jury is unnecessary. It is not error for the court to assess damages in an action on an appeal bond, where no objection- is made thereto and no request is made to impanel a jury to assess damages before they are assessed by the court.
    5. Municipal Court of Chicago, § 13* — when affidavits of defense are properly stricken from files. Affidavits of defense, in an action in the Municipal Court of Chicago, which present no allegations of facts but mere argument, or alternative statements, are properly stricken from the files.
    E. F. Masterson, for plaintiff in error.
    Max M. Grossmah, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Helen Zaucha, Defendant in Error, v. Fred Smolinsky, Plaintiff in Error.
    Gen. No. 23,017.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13a

       — what does not constitute variance between statement of claim and proof in action of slander. In an action for slander in the Municipal Court of Chicago, where the statement of claim alleged that defendant had used words concerning plaintiff, intending thereby to charge that she had committed fornication with a married man, and did not purport to confine the defamatory utterances to a discourse between plaintiff and defendant, held that it was proper to show not only utterances by the defendant in the presence of the plaintiff, but also those made to other parties in her absence.
    2. Libel and slander, § 58* — when remarks are not privileged. In an action of slander for charging plaintiff with fornication with a married man, held that the contention that the remarks were privileged, because made to defendant’s employer, was without merit where it appeared that the statements were made simply as an excuse for defendant’s own misconduct and that the remarks were made to other employees.

      Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Helen Zaucha, plaintiff, against Fred Smolinsky, defendant, to recover damages for the utterance- of slanderous words concerning plaintiff. From a judgment for plaintiff for $200, defendant brings error.
    Frank Peska, for plaintiff in error.
    A. F. W. Siebel, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Libel and slander, § 145 — when evidence is sufficient to sustain verdict. In an action of slander to recover damages for the utterance of slanderous words, charging plaintiff with having committed fornication with a married man, evidence held sufficient to sustain a verdict for plaintiff.

4. Libel and slander, § 142* — when evidence that plaintiff was not guilty of charge of fornication is admissible. In an action to recover damages for the utterance of slanderous words, charging plaintiff with having committed fornication with a married man, where defendant pleaded the truth as a defense, held that it was not error to admit testimony that plaintiff did not commit fornication with the party named by defendant.

5. Libel and slander, § 37* — what is slanderous per se. A charge of fornication is slanderous per se.

6. Libel and slander, § 21* — when malice presumed. Malice will be presumed by the use of words actionable per se.


text:
    McCormick Theological Seminary of the Presbyterian Church, Defendant in Error, v. E. F. Thompson, Plaintiff in Error.
    Gen. No. 23,031.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by McCormick Theological Seminary of the Presbyterian Church, a corporation, plaintiff, against E. F. Thompson, defendant, to recover rent for the months of November and December, 1915, and for attorneys ’ fees incurred in collecting rent for the four previous months under the terms of a written lease. From a judgment for plaintiff for $143.50, including $12 for attorneys’ fees, defendant brings error.
    Abstract of the Decision.
    1. Landlord and tenant, § 327

       — when attorneys’ fees and expenses are allowable under lease. Under a lease in which the lessor agrees to pay, in addition to rent and other matters, “all reasonable costs, attorneys’ fees and expenses that shall be made and incurred by the lessor in enforcing the covenants and agreements of this lease,” attorneys’ fees and expenses incurred fn collecting rent for prior months are allowable as part of the judgment for rent.
    2. Landlord and tenant, § 327* — when lease containing provision for attorneys’ fees is not unilateral. In an action on a lease to recover rent and attorneys’ fees and expenses in collecting rent for prior months, held that a lease by which the tenant agreed to pay, in addition to rent and other matters, all reasonable costs, including attorneys’ fees and expenses incurred by the landlord in enforcing the covenants and agreements of the lease, was not unilateral for want of mutuality.
    3. Landlord and tenant, § 327* — when provision in lease for payment of attorneys’ fees is valid. A provision in a lease for the payment by a tenant of'attorneys’ fees and expenses incurred by the landlord in enforcing the covenants and agreements of the lease is valid as constituting an indemnity to the landlord against actual loss resulting from a failure of the tenant to keep his agreement.
    4. Action, § 68* — when action for rent is not prematurely brought. The contention that an action to recover rent and attorneys’ fees and expenses incurred in collecting previous instalments of rent was prematurely brought, held to be without merit where the.rent was payable in advance on the first day of each month and the rent for the months for which the action was brought was long past due.
    Thompson, Moore & Clark, for plaintiff in error.
    Mather & Hutson, for. defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Alfred E. Barron, Appellant, v. Templeton, Kenly & Company, Ltd., Appellee.
    Gen. No. 23,036.
    (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 4

       — what constitutes acceptance of new terms of employment. The continuance of an employee at work for thirteen months after notice by letter from his employer that it will be necessary for those remaining in its employ to accept a stipulated reduction in salary and that, unless otherwise advised, the reduction will go into effect on a certain date, must be deemed an acceptance of the conditions stated, even though the employee at the time he receives the notice writes the employer that if he does not continue at the same salary he has been getting, or at an increased salary, his resignation may be asked.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917
    Statement of the Case.
    Action by Alfred E. Barron, plaintiff, against Templeton, Kenly & Company, defendant, to recover an alleged balance of salary of $323.27. From a judgment for defendant, plaintiff appeals.
    Bulkley, More & Tallmadge, for appellant.
    Hoag & Ullmann, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Henry Ades Fowler, Administrator of the Estate of Jean B. Meyer, Deceased, Plaintiff in Error, v. Chicago Daily News Company, Chicago Railway Company and Chicago City Railway Company, Defendants in Error.
    Gen. No. 23,040.
    Dismissal, nonsuit and discontinuance, § 37

       — what construction given words “second, term of court” in Practice Act. The phrase “second term of court” In Hurd’s Rev. St. ch. 110, sec. 32 (J. & A. K.8569), providing that,if the declaration shall not be filed ten days before the second term of court after the first term at which the summons is made returnable, the defendant shall be entitled -to a judgment as in case of a nonsuit, means the next term after the term to which the process which became effective by service is returnable.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed July 2, 1917.
    Earl J. Walker, for plaintiff in error.
    John J. Symes, for defendant in error Chicago Daily News Company.
    Frank L. Kriete, for defendants in error Chicago Railways Company and Chicago City Railway Company ; W. W. Gurley and J. R. Guilliams, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

•By this writ of error it is sought to have reversed a judgment dismissing plaintiff’s suit for failure to file his declaration by the second term of court after the summons was returnable.

The praecipe was filed July 30, 1915, and summons issued by the clerk on that day. It was not served on any of the defendants. On October 16, 1915, an attorney was given leave to enter his appearance for the defendant Chicago Daily News Company, and upon his motion,, without notice to plaintiff, the action was dismissed as to this company for failure of the plaintiff to file his declaration “pursuant to statute.” On October 13, 1916, before service of any summons on the defendants Chicago Railways Company and Chicago City Railway Company, the court of its own motion ordered that as the suit had. been dismissed as to the Chicago Daily News Company for failure to file declaration as required by statute, suit also should be dismissed as to the Chicago Railways Company and the Chicago City Railway Company “for plaintiff’s failure to file declaration herein within the time provided by law.”

Impressed' as we are by the able and earnest briefs of counsel for the respective defendants, who present forcibly the potential harm in the practice of commencing a suit but making no effort to serve summons' for a long period thereafter, and however desirable it might be to bring an end to such conditions, we have no recourse except to follow what we conceive to be a clear statement of the law.

The statute provides that if the declaration shall not be filed ten days before the second term of court after the first term at which the summons is made returnable, the defendant shall be entitled to a judgment as in the case of nonsuit. Section 32, eh. 110, Hurd’s Rev. St. (J. & A. 8569). It has been settled beyond controversy by our Supreme Court that the “second term of court” means the next term after the term to which the process which became effective by actual service is returnable. In English v. Wilkins, 163 Ill. 542, the language of the court is: “We are satisfied that by the phrase ‘second term of the court’ the statute means the next term after the term to which the process which becomes effective by service is returnable”; and further, in construing the decision in Herring v. Quimby, 31 Ill. 153, the court said in the English-Wilkins case, supra: “In other words, the ‘ summons ’ mentioned in said section of the statute was construed to mean the summons which was served, and not any prior process which had not been served. ’ ’ Peculiarly applicable as expressing our view is the language in English v. Wilkins, supra, as follows:

“The argument of counsel might be sufficient to induce a change in the statute by the department having the power to make such change, but we regard the statute, and the interpretation of it by previous decisions of this court, as too plain to authorize a different construction than the one here given to it.”

For the reason above given the judgment of the trial court as to each defendant is reversed and the cause is remanded.

Reversed and remanded.


text:
    In re Estate of Celia Lynch, Deceased. W. L. Weller & Sons, Plaintiff in Error, v. Benjamin M. Berry and Daniel Lynch, Administrators, Defendants in Error.
    Gen. No. 23,048.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 292

       — what is a final order. An order vacating a previous judgment of the Circuit Court dismissing an appeal by administrators from an allowance of a claim against an estate in the Probate Court is a final order.
    2. Executors and administrators, § 282* — what is effect of failure of appellee to enter appearance in Circuit Court on appeal. The fact that the appellee, the claimant, does not enter its appearance in the Circuit Court on an appeal from the allowance of a claim in the Probate Court does not deprive the Circuit Court of jurisdiction, as the appellee is bound to, and in the eye of the law does, follow the appeal and is taken along with it.

      Error to the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Claim by W. L. Weller & Sons, a corporation, claimant, against Benjamin M. Berry and Daniel Lynch, administrators of the estate of Celia Lynch, deceased. From an order of the Circuit Court vacating a previous judgment dismissing an appeal from the Probate Court, taken by the administrators from an allowance of the claim, claimant brings error.
    G-oldzier, Rodgers & Froehlioh, for plaintiff in error.
    Daniel M. Healy, for defendants in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Judgment, § 298 — when may not be set aside at subsequent term. An order of the Circuit Court dismissing an appeal by administrators from an allowance of a claim against an estate in the Probate Court becomes final at the expiration of the term and cannot be set aside on motion at a subsequent term.

4. Judgment, § 273* — what do not constitute errors of fact. The absence of an appearance by claimant at the time of the making of a motion by its attorneys for the dismissal of an appeal by administrators from the allowance of a claim in the Probate Court ,to the Circuit Court and certain misunderstandings on the part of the attorneys for the administrators which gave rise to their fail-ure to be present at the time the cause was called for trial, held not to be errors of fact within the Practice Act, sec. 89 (J. & A. 1i 8626), providing that errors in fact which could have been corrected by the writ of error eoram nobis at common law may be corrected by the court in which the errors were committed, upon motion in writing, made at any time within five yearS after rendition of the final judgment, so as to not warrant the granting of the motion to vacate a judgment of dismissal of the appeal.

5. Executobs and administratobs, § 282* — when appeal should be dismissed by court on its own motion. It is the duty of the court, on the call of a case for trial which had been appealed to the Circuit Court from the Probate Court by the administrators of an estate, in the absence of appellants, to dismiss the appeal whether the appellee so moves or not.


text:
    Architectural Tile Company, Appellee, v. Israel S. Spiro, Appellant.
    Gen. No. 23,064.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

       — when statement of claim in action to recover for goods sold and delivered is insufficient. A statement of claim, in an action to recover for goods sold and delivered, which contains a number of items, but no description whatever as to the kind and character of the goods, the items charged being “to invoice,” is insufficient, and a motion for a more specific statement of claim is improperly denied.
    2. Sales, § 323* — when portion of affidavit of merits in action to recover for goods sold is improperly stricken from files. In an action to recover for goods sold and delivered, held that the portion of an affidavit of merits alleging that there were errors in the account stated by the plaintiff and that it included the price of certain tile which defendant claimed was to be of a specific kind, but after the tile was delivered under the contract and set up it developed that it was not of the kind and character as specified in the contract, and that it was impossible to discover this from inspection before setting,' was improperly stricken from the files.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by the Architectural Tile Company, a. corporation, plaintiff, against Israel S. Spiro, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for $240.79, defendant appeals,
    Harold J. Finder, for appellant.
    W. J. Leseman, for appellee.

      See Illinois Notes Bisrest, 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 titimber.

   Mr. Justice McSurely

delivered the opinion of the court.

3. Sales, § 310 — what is condition precedent to right to recover purchase price of goods sold by description. Where a contract is executory and the seller agrees to sell an article by a particular description, it is a condition to his right to recover the price that the thing which is delivered shall answer such description, and in a suit for the price brought by the seller, the defendant may give in evidence the diminution in value on account of the goods not answering the description, or, if they he in fact worthless, may defeat the action.


author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois ex rel. City Council of the City of Chicago, Appellee, v. Board of Education of the City of Chicago, Appellant.
    Gen. No. 23,104.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Soanlan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 9, 1917.
    Statement of the Case.
    Petition for mandamus by the People of the State of Illinois, on relation of the City Council of the City of Chicago, petitioner, against the Board of Education of the City of Chicago, respondent, praying that said board be commanded to give to the city council full and complete access to all books, records, documents and information concerning the receipt and expenditure of moneys in possession of the board. An appeal was taken to the Appellate Court and as decided in the Supreme Court improvidently sent to the Supreme Court by a certificate of importance and the appeal dismissed. See 198 Ill. App. 195 and 275 Ill. 195. Under the Appellate Court’s mandate the case was redocketed in the trial court. From a judgment sustaining demurrers to the answer, respondent appeals.
    Abstract of the Decision. ,
    Appeal and error, § 1094* — when reply brief is defective. It is the duty of the Appellate Court to review the. record as made in the trial court, and a reply brief is defective where it injects new matter into the case.
    Angus Boy Shannon, for appellant; Chauncey M. Millar and John E. Foster, of counsel.
    Donald B. Bichberg, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Goodwin

text:
    Charles Bruhl for use of Martin D. Jones, Defendant in Error, v. W. J. Anderson. Intervening Petition of Earl Burton, Plaintiff in Error.
    Gen. No. 22,091.
    1. Execution, § 256

       — when evidence is insufficient to impeach sheriff’s return of nulla bona in county. Evidence, including an answer of a garnishee that the creditor’s attorney filed a memorandum that he was advised that the debtor had no property in the county subject to execution; that a demand would be unavailing; that if the sheriff, in the exercise of his discretion, should conclude to return the execution nulla bona the creditor would waive any damages that might result therefrom, and that a return no property found was made, held insufficient to overcome the prima facie evidence that there was no property subject to execution in the county arising from the return of the execution.
    2. Appeal and error, § 1698

       — when failure to traverse answer may not he taken advantage of. The failure to traverse an answer of the garnishee in garnishment proceedings cannot be taken advantage of on appeal where the parties, without objection, proceeded with the trial of the case as though the issues had been properly joined.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Rehearing denied July 23, 1917.
    Max M. Grossman and Egbert S. Cook, for plaintiff in error.
    Boyle & Mott, for defendant in- error.

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

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

The plaintiff in error, who was the intervening petitioner below, seeks to set aside a judgment in favor of the defendant in error, who was the plaintiff below, obtained against one Anderson in a certain garnishment proceeding. The parties will be referred to as plaintiff, defendant, garnishee and intervening petitioner, as in the court below.

The record discloses that the plaintiff took judgment by confession against the defendant, sued out execution, and immediately thereafter the sheriff of Cook county returned the execution no property found. At the time it was placed in the hands of the sheriff, plaintiff’s attorney gave him a memorandum to the effect that he was advised, and so stated, that the defendant had no property in the county subject to execution, and that a demand would be unavailing, and that if, in the exercise of his discretion, the sheriff returned the exeeution nulla bona, the plaintiff would waive any damages that might accrue as the result of his doing so. Thereafter, upon the'making of the statutory affidavit, garnishment proceedings were begun against the garnishee, who answered that a judgment had been obtained against him by defendant, but that an appeal had been taken. The garnishee further set up the facts already stated in regard to the manner in which the sheriff’s return had been made. Shortly before the cause came on for trial, the intervening petitioner filed his petition, apparently by leave of court, setting up the facts concerning the suing out and return of the execution, and alleging that on a day subsequent to the institution of the garnishment proceedings he obtained from the defendant an assignment of the judgment against the garnishee, that he was entitled to the full benefit of that judgment, and that plaintiff was entitled to no relief because the execution was returned without any bona fide attempt to discover assets belonging to the defendant subject to the execution. When the ease was called for trial, the court, after hearing evidence, entered an order reducing the amount of the judgment upon a remittitur; thereupon, it was brought to the attention of plaintiff’s attorney that an intervening petition had been filed. He objected to proceeding with the trial until he had had a reasonable time to answer. The court overruled the objection, entered an order permitting the plaintiff to answer the intervening petition within five days, and directed the parties to proceed with the hearing. There was on file an answer by the defendant admitting the assignment of the judgment in question to the intervening petitioner, and it appeared that the judgment against the garnishee in favor of the defendant had been affirmed by this court, and was then absolute. The court, after hearing the evidence, entered a judgment in favor of the plaintiff for $1,101.97, and in favor of the intervening petitioner for the balance of the judgment.

It is objected that, as there was an answer on file on behalf of the garnishee which had not been traversed, the answer must be taken as true. If it be assumed, for the purpose of argument, that this contention is correct, the question arises as to whether the answer constituted a bar to the garnishment proceedings. This answer, as already indicated, stated, in substance, that immediately upon the suing out of the execution, the attorney" placed it in the hands of the sheriff, but did not pay the statutory fee for serving the same or for making demand, but only fifty cents for the sole purpose of having a return made upon the summons; that plaintiff’s attorney filed a memorandum to the effect that he was advised that defendant had no property in the county subject to execution, and that a demand would be unavailing, and that if the sheriff, in the exercise of his discretion, should conclude to return the execution nulla bona¿ the plaintiff would waive any damages that might result therefrom, and that a return no property found was thereupon made.

There is not, however, the slightest suggestion in the answer, or elsewhere in the record as abstracted, that the defendant had any property within the county subject to execution. "While it may be true that the return of an execution nulla bona is only prima facie evidence of the fact, there is nothing in the record to overcome the case thus made out. If it had been shown that there was at the time property of the "defendant within the county which a reasonable effort on the part of the sheriff would have disclosed, or that a demand upon the defendant would have been availing, a different question would arise; but we are clearly of the opinion that nothing shown in the answer or by the evidece impeaches the regularity or propriety of the return. The sheriff may well, and usually does, thus gain his knowledge of property subject to execution, and we see no reason for saying that the course pursued in the case at bar was improper. But so far as the failure to traverse the answer is concerned, we think that in any event no advantage could be taken of it here, since the parties, without objection, proceeded with the trial as though issues had been properly joined. .Moreover, the garnishee is the only party who would be entitled to any advantage on account of a failure to answer his petition, and the only person objecting to the judgment is the intervening petitioner. So far as the latter’s petition is concerned, it clearly appears from the portions of the bill of exceptions appearing in its abstract that it objected to a continuance of the cause, acquiesced in the action of the court in compelling the plaintiff to proceed without an opportunity to answer the petition, and made no objection to the order of the court permitting an answer to be filed at a subsequent date. We are further of the opinion, for the reasons already given, that nothing set out in the intervening petition, itself, impeached the regularity of any step in the garnishment proceedings.

For the reasons stated, the judgment of the Circuit Court is affirmed.

Affirmed,


text:
    City of Chicago, Defendant in Error, v. Merritt O. Hoover, Plaintiff in Error.
    Gen. No. 22,130.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal cobpobations, § 864

       — what proof required to sustain conviction for violation of ordinance. Where an ordinance provides for a fine or imprisonment, a conviction ’cannot be sustained unless supported by a clear preponderance of the evidence.
    2. Municipal cobpobations, § 864* — when evidence sufficient to sustain conviction for driving automobile while intoxicated. On a prosecution for the violation of section 2013 of the Revised Municipal Code of Chicago, prohibiting any intoxicated person from driving an automobile, evidence held sufficient to sustain the conviction of defendant.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Merritt 0. Hoover, defendant, for driving an automobile while intoxicated in violation of section 2013 of the Revised Municipal Code of Chicago. From a judgment of conviction, defendant brings error.
    Earl J. Walker, for plaintiff in error.
    Samttel A. Ettelson and Harry B. Miller, for defendant in error j Daniel Webster, of counsel.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.


text:
    Samuel Reifman, Defendant in Error, v. Samuel Micon, Plaintiff in Error.
    Gen. No. 22,198.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assumpsit, Action of, § 44

       — nature of action for money had and received for use of another. An action for money had and received for the use of another is equitable in its nature.
    2. Vendor and purchaser — when evidence insufficient to show quadrilateral contract with agents of respective parties. Evidence
      held insufficient to establish a quadrilateral contract between the owner of land, his agent, the purchasers, and their agent concerning the deposit of a certain sum in a certain bank by the purchasers’ agent, where the sellers and purchasers agreed in the contract which they signed as parties that their agents should deposit, one the contract, and the other, the initial payment, simultaneously with the bank where defendant was merely acting under the instructions of his principal.

      Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Action for money had and received hy Samuel Reifman, plaintiff, against Samuel Micon, defendant, to recover the sum of $200 which defendant had received from his clients, and which, pursuant to a contract between intending purchasers for whom defendant was agent and intending sellers for whom plaintiff was agent, was to he deposited in a bank with the contract, which contract was to be deposited by plaintiff’s attorney, hut which sum defendant' had returned to his clients, due to a disagreement between defendant and plaintiff’s attorney. From a judgment for plaintiff for $200, defendant brings error.
    Arthur W. Dixon, for plaintiff in error.
    William M. Tannebaum, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

3. Assumpsit, Action of, § 56* — -when agent not deemed to have received money for the use of another. An agent for the purchasers of land who receives the initial payment from his clients cannot be deemed to have received money for the use of the sellers under a contract for the sale of land, where" he received it for the purpose of depositing it with a certain bank, which, in turn, was to hold it for the mutual benefit of the parties concerned, and the agent returned the money to the principal.


text:
    Pennsylvania Company, Plaintiff in Error, v. M. Piowaty & Sons, Defendant in Error.
    Gen. No. 22,224.
    1. Carriers, § 185

       — what does not constitute waiver of provision in bill of lading as to time for filing claim for damages. The receipt and investigation of a claim for damages by a carrier after the expiration of the four months after delivery limited in the bill of lading for presenting it does not constitute a waiver of the defense afforded by such provision, especially where the claim does not give the date when the shipment was received.
    2. Carriers — what evidence required to establish a waiver of time limit for filing claims for damages. The question of waiver of a provision in a bill of lading limiting the time within which claims for damages may be filed after delivery of the goods must be established by a preponderance of evidence.
    3. Carriers — when evidence is insufficient to establish a waiver of time limit for filing claim for damages in bill of lading. In an action by a carrier to recover a balance of freight charges from the shipper, and set-off by defendant claiming damages for failure of carrier to notify consignee of the arrival of the goods at their destination, evidence held insufficient to show a waiver by the carrier of the provision in the bill of lading requiring claims for damages to be made within four months after the date of delivery of the goods.
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and judgment here.
    Opinion filed July 11, 1917.
    Rehearing denied July 23, 1917.
    Loesch, Scofield & Loesch, for plaintiff in error.
    Sabath, Stafford & Sabath, for defendant in error; Charles B. Stafford, of counsel.

      See Illinois Notes Direst, Vols. XI to XV, and Cumulative Quarterly, tame topic and section number.

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

In this case, the plaintiff in error seeks to reverse a judgment in favor of the defendant in error for $145.50. The facts in the case are substantially as follows: Plaintiff in error, who will be referred to as the carrier, brought suit against the defendant in error, who will hereafter be referred to as the shipper, for $19.50, for the balance of certain freight charges due on a shipment of onions from Hanna, Indiana, to Montreal, Canada. As there were no scales at Hanna, they were billed at a minimum weight and charges assessed at $72. It subsequently appeared that the proper charge was $91.50, and this suit was brought for the difference.

The regularity of the charges was not denied. No affidavit of merits was filed by the shipper, but it filed a statement of set-off claiming damages on account of the failure of the carrier to notify the consignee upon the arrival of the shipment at Montreal, Canada. It appeared that the shipment arrived there on October 28, 1912, and the shipper filed its claim for damages March 26, 1913. One of the defenses to this claim, set out in the affidavit of defense, was that by the terms of the contract it was agreed that claims by the shipper for loss, damage or delay must be made in writing within four months after the delivery of the shipment. It is not denied that no claim was filed within that time, but it is insisted that fhis stipulation in the contract was waived by the carrier. The carrier, however, strenuously insists that it is not legally possible for a carrier to waive such a provision in a bill of lading. We feel, however, it is not necessary to discuss this or any of the points raised by the carrier, except its claim that the record contains no evidence which justified the trial court in finding that such waiver had, in fact, been made. The mere physical act of receiving a claim and investigating, it, after the expiration of the four months limited in the bill of lading for presenting it, would not, in itself, constitute a waiver of the defense. If we assume that the carrier has power to waive such a defense, then, of necessity, it may make a thorough investigation of the merits of the claim before it decides whether or not it will interpose the defense of a failure to notify it in apt time. In other words, if we are to assume that the carrier has power to waive the defense, we are obliged to say that the courteous receipt and investigation of a claim will not, in itself, estop it from deciding, after a thorough investigation of the merits of the claim, to avail itself of its legal defense. Moreover, the claim did not give the date when the shipment was received, and consequently did not advise the carrier that it had not been filed in apt time. While the question of waiver, if a defense of this kind can be legally waived, would be a question of fact, it is one which must be established by the claimant by a preponderance of the evidence, and, upon a careful examination of all the evidence in this case, we are compelled to say that such a finding, if supported by any evidence at all, is clearly contrary to the manifest weight of the evidence.

The judgment of the Municipal Court is reversed, and judgment .will be entered here in favor of the plaintiff in error for $19.50.

Reversed and judgment here.


text:
    August Jacobs, Defendant in Error, v. Henry T. Jurgensen and John F. Jurgensen, Plaintiffs in Error.
    Gen. No. 22,258.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Action by August Jacobs, plaintiff, against Henry T. Jurgensen and John F. Jurgensen, defendants, to recover on a lease of premises occupied by the Jurgensen Tea Company. From a judgment for plaintiff for $765, defendants bring error.
    The lease recited that the indenture was made “between August Jacobs, party of the first part, and Jurgensen Tea Company, party of the second part.” The lease referred to the party of the second part in the plural and was signed, “Jurgensen Tea Co., John F. Jurgensen, (Seal) H. T. Jurgensen, (Seal).”
    James B. Glass and John C. Trainor, for plaintiffs in error.
    Isaiah Campbell, for defendant in error.

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

   Mr. Presiding Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Partnership, § 52 — when evidence is sufficient to show. In an action for rent under a lease, where it appeared that the lease was signed by a certain company and by the defendants and there was nothing on the face of the lease to indicate whether it was a corporation or partnership obligation; that defendants had permitted the forfeiture of the charter of the corporation before the execution of the lease; that the defense that the obligation was a corporate obligation was not raised until two successive affidavits of merits on other grounds had been overruled; that one of the defendants, who was defendant in a prior ejectment action by plaintiff, prosecuted an appeal to the Appellate Court without claiming that he was not a lessee, and that the evidence was conflicting as to whether defendants claimed that they were doing a partnership business at the time of the execution of the lease, evidence held sufficient to show that the lease was a partnership obligation.

2. Corporations, § 368* — what evidence is inadmissible to show corporate liability on lease. In an action for rent under a lease, in which the issue was whether defendants signed the lease as members of a partnership or as officers of a corporation, evidence that defendants put up a sign after the execution of the lease with the words of the company name under which they did business, held inadmissible, where the concern, whether a partnership or corporation, was admittedly doing business under such name.

3. Corporations, § 368* — when checks and' condition of bank account are not admissible to show corporate liability on lease. In an action to recover rent under a lease, in which the issue was whether defendants signed the lease as members of a partnership or as officers of a corporation, evidence as to the manner in which checks were drawn and the bank account was kept several years subsequent to the signing of the lease, held inadmissible.

4. Corporations, § 368* — when evidence that defendants intended to attach their names to lease as officers is properly excluded. In an action to recover rent under a lease, in which defendants contended that they signed the lease as officers of a corporation and not as members of a partnership, evidence that defendants intended to attach their names to the lease as officers of the corporation held properly excluded where defendants had already testified that the company was a corporation and that they so advised the lessor before the^ lease was signed.

5. Appeal and error, § 1491* — when exclusion of evidence is harmless error. In an action to recover rent under a lease, in which defendants contended that they signed the lease as officers of a corporation and not as members of a partnership, the exclusion of evidence that one of the defendants was president of the company was harmless error, where it appeared that he was an officer of the company and that defendants were in active and exclusive control of the concern, whether a corporation or a partnership.


author: Mr. Justice O’Connor

text:
    Randall W. Burns and Amos H. Case, Trustees, and Noel McVicker, Defendants in Error, v. William J. Turnes and Eleanor K. Turnes, Plaintiffs in Error.
    Gen. No. 22,128.
    1. Mortgages, § 175

       — when mortgagors have no equities against assignee of first mortgage. On a bill for foreclosure by the assignee of a first mortgage on premises on which a building was erected by a building construction company, held that the mortgagor had no equities against the enforcement of the indebtedness which could be interposed against the first mortgagee, where the sale of two mortgages was effected by a construction company as agent, even though it failed to expend the proceeds on the building, especially where the mortgagors approved of expenditures made on improvements for more than the face value of the first mortgage.
    2. Mortgages, § 661* — when second mortgagee not entitled to attorneys’ fees. A second mortgagee is not entitled to attorneys’ fees where such mortgagee, who is made a defendant in a suit for the foreclosure of the first mortgage, files an answer praying that, in case of a sale, any surplus remaining after payment of the first mortgage should be applied towards the payment of the amount due him.
    3. Mortgages, § 667* — when allowance of attorneys’ fees for foreclosure is not excessive. An allowance of $1,000 attorneys’ fees for the foreclosure of a mortgage of $9,000, held not excessive where it appeared that the attorneys appeared before the master seventeen times and also were required to appear several times before the chancellor in settling the pleadings, and there was expert evidence on complainants’ behalf that such fees were reasonable and no evidence to the contrary.

      Error to the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed in part and reversed in part.
    Opinion filed July 11, 1917.
    George Y. McIntyre, for plaintiffs in error.
    Gardner, Foote & Burns, for defendants in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

This writ of error is prosecuted to reverse a decree entered in a foreclosure suit. The record discloses that William J. Turnes and his wife entered into a contract with the Guaranty Construction Company, a corporation, whereby the construction company agreed to construct a building to cost $12,500. To raise the funds necessary, Turnes and his wife executed two notes, one for $9,000 and one for $3,750, secured by trust deeds on the premises on which the building was to be constructed. The contract provided that the construction company should negotiate the notes and trust deeds. The $9,000 note and trust deed were sold to the complainants, Randall W. Burns and Amos H. Case, trustees under the last will and testament of Randall H. White, deceased. The note for $3,750 and trust deed were also disposed of, and, prior to the filing of the bill, were owned by the defendant, Noel McYicker. Both of the notes were sold for their face value and the money turned over to the construction company, or to Seney Rogers & Company, a firm of brokers, who also appear to control the construction company. The interest on the notes was payable semiannually, evidenced by interest notes or coupons,- and default being made in the payment of a part of the fifth coupon on the $9,000 note, and also default in payment of taxes and special assessments, the bill in this case was filed to foreclose the $9,000 trust deed. The owner of the second mortgage w;as made a party defendant.

The defendant Noel McVicker answered setting up his ownership of the second mortgage, and prayed that in case of sale of the premises any surplus remaining after the satisfaction of the first mortgage should be paid* to him.

The defendants Turnes filed their answer, which admitted the execution of the notes and trust deeds, and averred that the construction company had agreed to construct a building on the premises and pay for the same out of the proceeds derived from the negotiation of the two notes, and that the owners of the $9,000' note were informed that the said construction company had not paid out the $9,000. These defendants also filed a cross-bill, setting up substantially the same facts, and in addition averred that the construction company had not done its work properly, and also it had failed to complete the building, and they, the cross-complainants were obliged to do so at considerable expense, and prayed that an accounting be had. After issues joined the cause was referred to a master who took the proofs and made up his report. The master found that the face value of the two notes, together with certain interest and expenses,' were due and unpaid, and recommended a foreclosure of the first mortgage, and, in default of payment, that the property be sold. Objections to the report were overruled, as were likewise exceptions, and a decree of foreclosure entered. The decree provided that in case of sale any surplus remaining after payment of the first mortgage should be applied in payment of the amount found due under the second mortgage. The decree also found, in accordance with the master’s report and recommendations, that the construction company had failed to complete its work in accordance with its contract; that the Turnes’, by reason of such breach, had incurred expenses amounting to $3,066.48, which was found to be due and owing from the construction company to them.

The defendants Turnes contend that in a proceeding to foreclose a mortgage any equities existing in favor of the mortgagor may be enforced against the owner of the indebtedness, and therefore the equities existing between them and the construction company can be invoked against the owners of the first and second mortgages.

The law has long- been firmly established in this State that any equities which the mortgagor has against the enforcement of the indebtedness may be interposed against any one seeking to foreclose the mortgage. Olds v. Cummings, 31 Ill. 188. In the case at bar, however, there are no equities in favor of the mortgagors, even if the amount realized from the sale of the two mortgages was not expended on the construction of the building. The construction company was authorized by the mortgagors to negotiate the sale of the two mortgages; it obtained the face value thereof, and if it failed to expend this money on the building, the owners of the mortgages are in no way to blame, for the default, if any, was that of the construction company, the agent of the mortgagors. Furthermore, the mortgagors approved of expenditures made on the improvements for more than the face value of the first mortgage, and this is the mortgage against which they make complaint.

The defendants Turnes next contend that there is no evidence to warrant the finding of any amount due the defendant McVicker; that while the answer avers that the face of the note amounting to $3,750 with interest was due, the note and mortgage were not introduced in evidence, and therefore there is nothing on which to base the decree in this regard. This is a misapprehension. The note and trust deed were introduced in evidence, and in fact there is no dispute that the amount found due McVicker was correct.

In this connection complaint is also made of the allowance of $450 to the defendant McVicker as and for his solicitor’s fees. The record discloses that the defendant by his answer prayed that in case of a sale, any surplus remaining after the payment of the first mortgage should be applied towards the payment of the amount due him. No claim was made by him for solicitor’s fees, and on answer filed on behalf of a second mortgagee, none was authorized. Soles v. Sheppard, 99 Ill. 616; Schaeppi v. Glade, 195 Ill. 62; Gillespie v. Greene County Savings & Loan Ass’n, 95 Ill. App. 543. Moreover, while it appears that the trust deed was offered in evidence before the master and considered by him, it does not appear in the record, and there is no finding in the decree concerning the matter. We are therefore unable to determine its provisions, if any, in this regard. The allowance of $450 solicitor’s fees was unauthorized.

The defendants Turnes further contend that the allowance of $1,000 to the complainants as solicitor’s fee is contrary to the evidence. The objection urged before the master and the chancellor was that the allowance was excessive and that a reasonable fee would be $250. The record discloses that the solicitor for the complainants appeared before the master seventeen times; that he was also required to appear several times before the chancellor in settling the pleadings. Attorneys on behalf of the complainants testified that $1,000 would be a reasonable fee for such services. The defendants- offered no evidence to the contrary and we are unable to say that the allowance was excessive.

The decree of the Circuit Court is in all respects affirmed, except as to the allowance of $450 to the defendant Noel McVicker as his solicitor’s fees. In this respect it is reversed. The costs in this court will be divided so that the defendant McVicker will be required to pay one-third and the defendants Turnes two-thirds thereof.

Affirmed in part and reversed in part.