text:
    J. J. Nartzik, Appellee, v. Fred C. Ehman, Appellant.
    Gen. No. 19,946.
    1. Creditors’ spit, § 40

      —when receiver may he appointed. A receiver for property may properly be appointed in a suit before the defendant has answered, where the complainant can satisfy the chancellor that he has an equitable claim to the property and that the receiver is necessary to preserve it from loss, or where a clear case of fraud is shown, or of imminent danger to the property, and such procedure is especially proper in cases of creditors’ bills in aid of the enforcement of judgments.
    2. Receivers, § 3*—what is nature of receiver. A receiver is an indifferent person between the parties, appointed by the court, and on behalf of all parties, to receive the thing or property in litigation pending the suit,
    3. Receivers, § 18*—when may talce possession. Where the assets are openly visible, the receiver can at once take actual possession, but where their character, amount and whereabouts are unknown, a court of chancery may require a defendant to appear before it and submit to an examination.
    4. Appeal and error, § 1416*—when findings of master are supported hy evidence. Evidence held sufficient to support findings of fact of a master and his recommendations even though a defendant appeared as a witness and specifically denied the truth of the charges against him.
    Appeal from the Superior Court of Cook county; the Hon. William E. Devbr, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.

      Oertiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This was a bill in the nature of a creditor’s bill in the Superior Court of Cook county, filed November 6, 1912, by J. J. Nartzik, appellee, a judgment creditor, hereinafter called the complainant, against C. Ehman and Company, a corporation, the judgment debtor. The bill named as codefendants Charles Ehman, president of the said corporation, Fred C. Ehman, a former treasurer of said corporation, Adolph C. Ehman, a former secretary of said corporation, Alma B. Burkhardt, Fritz Goetz and Albert Goetz. Fred C. Ehman, appellant, is the only defendant that is interested in this appeal, and he will be hereinafter referred to as the defendant. The bill, in substance, alleges that on June 22, 1912, complainant recovered a judgment in the Municipal Court of Chicago for $2,352.14 against said corporation; that execution issued to the sheriff was returned wholly unsatisfied; the return showing no property found; that the said corporation has property which it keeps concealed or to which the title is held in trust; that certain of its property was fraudulently transferred; that the persons to whom such fraudulent transfers were made are the codefendants named in said bill; that all of said property (naming it in detail) is in the name of or in the control of said codefendants, but equitably belongs to said corporation. On motion of the complainant, on November 7, 1912, a receiver was appointed and an order entered directing that the principal defendant assign, transfer and deliver to said receiver in advance, under the direction of the master in chancery named by the court, all such property; that it deliver to said receiver in like manner, all bills, notes, contracts, books of account, etc.; and it was further ordered that the cause be. referred to a master in chancery, to examine the principal defendant, codefendants, officers or agents of said corporation, and such other witnesses as might be produced before said master, concerning things in action, equitable interests and effects of the principal defendant, and report his findings to the court, together with his conclusions thereon, and that the defendant, C. Ehman & Company, its officers and agents and the other defendants shall appear from time to time when summoned to do so by the master, and produce books and accounts and submit to examination. On November 12,1912, before answer was filed by any of the defendants, hearing on the said reference was had before the master and thereafter he made the following report of Ms findings and recommendations; that C. Bhman & Company was an Illinois corporation doing business in the city of Decatur, manufacturing veneered doors; that Charles Bhman was president of the company ; that Adolph C. Bhman was secretary; that Fred C. Bhman was treasurer; that Charles Bhman was the father of Adolph C. and Fred C. Bhman; that the checks drawn by the company prior to January 7,1911, were signed by Charles Bhman, president, and Fred C. Bhman, treasurer; that checks signed by either Charles Bhman or Fred C. Bhman were recognized by the banks; that on January 7, 1911, the plant of the company, including machinery, materials, buildings, books of account, papers, insurance policies, deeds, notes, etc., were destroyed by fire; that prior to the fire the assets of the judgment debtor over and above its liabilities were $150,000; that the judgment debtor carried $128,000 fire insurance; that subsequent to the fire there was collected by the judgment debtor or its officers on the fire loss, the sum of $111,000; that at the time of the fire the bills receivable of the company amounted to from $40,000 to $60,000; that the books of the company were destroyed by the fire; that a new set of books was made; that the new books show bills receivable amounting to $30,000; that since the fire the greater part of that amount has been collected by the principal defendant or its officers; that prior to the fire the total indebtedness, including notes held by the banks and bills payable, did not exceed $40,000; that a statement made September 1, 1910, showing assets and liabilities of the principal defendant, showed a total indebtedness of $33,495.71; that the testimony of Fred O. Bhman, treasurer, was that in January, 1911, the indebtedness might be a little but not very much in excess of that sum, but that the indebtedness would not in any event exceed $40,000; that all claims except two against the judgment debtor have been paid since the fire, and that one of these ig the judgment of the complainant; that both of the claims were disputed; that from January 2,1911, until the first of May, 1911, there was deposited in the Citizens National Bank of Decatur to the credit of the judgment debtor a sum in excess of $82,000, and the said account was subject to checks signed by either Charles Ehman, president, or Fred C. Ehman, treasurer; that the amount deposited in the Monroe National Bank of Chicago, where deposits were made subsequent to the fire, does not appear, nor does it appear what amount has been collected from the outstanding accounts receivable; that it is admitted that there was $111,000 collected from the insurance, and it is shown that $82,000 of that sum was deposited in the Citizens National Bank of Decatur; that, therefore, there would necessarily be in the neighborhood of $29,000 of insurance money deposited in the Monroe National Bank of Chicago, or elsewhere; that of the $30,000 accounts receivable that existed at the time of the fire and which appear upon the new books of the judgment debtor that were prepared subsequent to the fire, such of these accounts as had not been collected were turned over to Albert Goetz for collection and that the total amount he collected from such accounts was $882.97; that it is apparent that a large portion of the $30,000 of the accounts receivable had been collected prior to the time certain of such accounts had been turned over to Mr. Goetz, but the amount collected does not appear; that Fred C. Ehman testified that on April 4, 1911, there was a meeting in Decatur of himself, his father, and his brother, Adolph G. Ehman, who were officers and directors of the judgment debtor, and that it was then resolved that the affairs of the judgment debtor be wound up and the inventory business of the judgment be turned over to C. Ehman for his attention, and that thereafter he, Fred C. Ehman, gave little attention to the affairs of the judgment debtor; that subsequent developments, however, as shown by the evidence of the several witnesses as well as by the admissions of Fred C. Ehman, disprove this statement; that it appears that certain garnishment proceedings had been instituted against the judgment debtor in Mississippi, ‘ ‘ and that some time in the month of July, 1911, Fred C. Ehman was instrumental in supplying a bond with the Continental & Commercial Bank as trustee, indemnifying the various insurance companies against the said garnishment proceedings, and that thereafter the various insurance policies that had been affected by the garnishment proceedings were paid;” that it also appears that subsequent to the said date, April 4th, Fred C. Ehman sold or was instrumental in selling a lot of doors, aggregating a thousand or more, to one Krumhaar for which he received $900; that it also appears that in August, 1912, he collected an account of $300, and at other times made trips to Philadelphia, New York, Jersey City, Trenton, Louisville and divers other places, for the purpose of looking after the collection of other accounts; that in addition to all these facts, Charles Ehman, president of the judgment debtor and father of Fred C. Ehman, testified that Fred C. Ehman had charge of the collection of all the insurance and the payment of all the bills payable, and that the funds deposited in the Citizens National Bank of Decatur and the Monroe National Bank of Chicago were subject to the check of the said Fred C. Ehman; that. Albert G-oetz testified that Fred C. Ehman was the only man who knew anything about the affairs of the judgment debtor; that whether the affairs of the judgment debtor subsequent to April 4, 1911, were turned over to C. Ehman, and the funds which had been collected, disbursed by him, or whether Fred C. Ehman had charge of the funds that had been collected from the insurance companies and outstanding accounts and disbursed by him becomes merely a question of veracity between Fred C. Ehman, the son, and C. Ehman, the father; that C. Ehman is a man approximately seventy years old, whose manner upon the witness stand and whose conduct and appearances impressed the master that he was truthful and sincere in the testimony he gave; that but one conclusion is possible in weighing the testimony of C. Ehman as against that of Fred C. Ehman and the various circumstances in evidence, the activity of Fred C. Ehman subsequent to April 4th, in attending' to the affairs of the judgment debtor, his familiarity with the details of all the business interests, as well as the outstanding accounts, leads to the inevitable conclusion that Fred C. Ehman was the guiding spirit of the judgment debtor, C. Ehman & Company, and that he had charge and supervision of .the funds of the judgment debtor, received the insurance for the judgment debtor and the bills payable to the judgment debtor, and whatever disbursements have been made were made by him. By his own evidence it is impossible that he could have disbursed legitimately, in behalf of the judgment debtor, more than $40,000 of the sums which he received, and that he would necessarily have in his possession $71,000 from the insurance collected, entirely independent of the further item of $5,000 that was paid the judgment debtor for salvage subsequent to the fire and the sum that was collected, subsequent to the fire, from the outstanding accounts; that C. Ehman, the father, testified positively that he never received from the judgment debtor, subsequent to the time of the fire, an amount to exceed $1,500; that the master finds from the evidence and the circumstances in evidence that his statement in that regard was true. The master further ..found:
    “11. I further find that on the 3rd of August, 1912, co-defendant Fred C. Ehman collected from George Foster of Dayton, Ohio, the sum of $300 which was due the judgment debtor, and that that amount belongs to the judgment debtor and should be turned over to . tlie receiver.
    “12. I further find that co-defendant Fred C. Ehman has in his possession at the plant of F. C. Ehman & Company, No. 1638 Clybourne avenue, Chicago, Illinois, a lot of doors that - belong to C. Ehman & Company, and which should be turned over to the receiver.
    “12. I further find from the evidence that co-defendant, Fred C. Ehman, in April, 1911, (shortly subsequent to the fire) went into business in Chicago as a money lender, and he has testified in these proceedings that he loans as high as $70,000 at a time. It also appears from the evidence that his salary with C. Ehman & Company was terminated on or about April 4, 1911, and that prior to that time it had been $200,per month.
    “13. I further find from the evidence that co-defendant, C. Ehman, has no property, real or personal, and so far as it appears from the evidence, his sole means of support is the sum of $50, being payments upon the purchase price of property that he held in Chicago, together with small payments from a life insurance policy.
    “14. I further find from the evidence and exhibits in evidence, that the judgment upon which this proceeding was instituted was $2,352.14, and plaintiff’s costs thereon was $37.40; that said judgment was entered on the 22nd day of June, 1912, in the Municipal Court of the City of Chicago; interest on said judgment from June 22nd to December 22nd, 1912, is $58.80; costs of the present proceeding amounting to $500, approximately, including Master’s fees and stenographer’s fees, but exclusive of receiver’s fees, makes a total of approximately $2,948.14.
    ‘ ‘ Beoommeeuatioh.
    “I recommend that an order be entered herein, directing the said Fred C. Ehman that he deliver to the receiver the sum of $300 that was collected by him from George Foster.
    “I also recommend that he turn over to the said receiver, all of the doors in his possession at Clybourne avenue, at the plant of F. C. Ehman'- & Company, or elsewhere.
    “I also recommend that he be ordered to turn over to the said receiver such additional sum in currency as will be sufficient'to satisfy in full the said judgment entered in the Municipal Court of Chicago on the 22nd of June, 1912, in favor of J. J. Nartzik, against C. . Ehman & Company, a corporation, and costs .thereon, including the costs of this proceeding, being in the aggregate approximately $2,948.14.
    “All of which is respectfully submitted.
    “Dated Chicago, December 23rd, A. D. 1912.
    Charles J. Trainor,
    Master in Chancery of the Superior Court of Cook County.”
    The defendant’s exceptions to the master’s report were overruled and the court entered the following order:
    “This matter coming on to be heard on this 20th day of January, A. D. 1913, upon notice to all parties, and the court being fully advised in the premises, and having before it the report of the Master, together with the evidence declared before said Master, and being fully cognizant of the condition of things finds:
    “First, that it has jurisdiction of the parties hereto, and subject matter hereof.
    “Second, that the Master’s report is correct and proper in all respects, and the Master’s findings are true.
    “Third, that an order should be entered in accordance with the findings of the Master.
    “Wherefore, it is ordered and adjudged that the Master’s report be and the same hereby is confirmed and approved in all things, and the exceptions thereto of Fred C. Ehman are each hereby severally overruled.
    “It is further ordered that Fred C. Ehman, defendant, do turn over to Wm. F. Zibell, receiver herein, the sum of $2,948.14, and do also turn over to the said Wm. F. Zibell all doors now in his possession, and located at the plant of Fred C. Ehman & Company, a corporation in Chicago, Illinois; that he further turn over the sum of Three Hundred ($300) Dollars in addition, all within the period of ten days in accordance with the finding of the Master.”

      To reverse this order, the defendant prosecutes this appeal.
    Lipson & Levy and Henry S. Blum, for appellant.
    Eastman & White, for appellee; Ralph R. Hawxhurst, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The defendant contends, and argues at some length, ■ that the order in this case is an appealable one, but as the complainant appears to concede the correctness of this contention, we have not deemed it necessary to pass upon the question.

The next contention of the defendant can, perhaps, be best stated by a quotation from his brief: “There was a controversy here which should go to a hearing. The court should obtain jurisdiction of the parties, issues should be formed upon the pleadings and a trial should be conducted in the regular and orderly course of procedure. Instead, the regular and orderly course of procedure was suddenly and ruthlessly wiped out. * * * Here in this finding and on the decree based thereon we have every essential of an ultimate finding and decree. Nothing to be determined by an ultimate hearing was not determined here, and it was determined without jurisdiction, without pleadings, and without a defense or opportunity for a defense by the defendant. * * * The issues should be formed, a final reference to a master should be made upon the ultimate issues of the case, the two sides should marshal their forces and produce their witnesses and testimony. The case should he heard. * * * We have not insisted that this question is one strictly of jurisdiction. That may be a point of terminology. It is entirely satisfactory to us to have it considered merely as a question of common sense in practice, procedure and substantive law. The purpose of a receivership and the preliminary reference is to main-: tain the status quo, not to alter it. But behold, before . the facts can be developed a decree is entered, upon which execution against the property, or attachment against the body of ■ this defendant can be issued. * * * We believe the question is jurisdictional. But we say, in any event it is error.” The defendant further contends, in support of his present proposition, that, even if it be conceded that there was evidence introduced before the master tending to establish the charges made by the complainant against him, still, in view of the fact that the defendant testified before the master and denied the truth of the charges, the order complained of could not properly be entered against him, until after the final hearing of the case; that the chancellor, upon the report of the master, at most, might perhaps have properly issued an injunction against the defendant to restrain him from disposing of any moneys or property belonging to Ehman & Company.

The power of the court to appoint a receiver and to place in his custody the property in controversy, before the defendant has answered, has become a well established practice in this country, in cases where the complainant can satisfy the chancellor that he has an equitable claim to the property in controversy, and that a receiver is necessary to preserve it from loss, or where a clear case of fraud is shown, or of imminent danger to the property, unless the relief is granted. “If the emergency shown is such as to render it essential to justice that a receiver should be immediately appointed, it may be done before answer, since to delay the relief might entirely defeat the object sought by the application. The practice is especially salutary in cases of creditors’ bills in aid of the enforcement of judgments, and in this class of cases receivers are almost uniformly granted before answer. While the practice of appointing receivers before answer, in cases of emergency, is thus shown to be well established and generally followed by courts of equity in this country, yet the grounds which will induce the court to interfere at this stage of a cause must be very strong, and there must be clear proof of fraud, or of immediate danger to the property unless it is taken into the custody of the court.” High on Receivers, secs. 105, 106. The practice of appointing receivers pendente lite is well established in this State,- and the courts are not required to wait until the defendant to the bill has gone through the process of pleading before the appointment may be made. Railton v. People, 83 Ill. App. 396; Railton v. People, 85 Ill. App. 384; Chicago Title & Trust Co. v. Chapman, 132 Ill. App. 55; Baker v. Backus’ Adm’r, 32 Ill. 79; Daley v. Nelson, 119 Ill. App. 627. “The power of appointment (pendente lite) is usually invoked either for the prevention of fraud, to save the subject of litigation from material injury, or to rescue it from threatened destruction.” High on Receivers, sec. 11; Baker v. Backus’ Adm’r, supra. “The great object is to secure the property or thing in controversy, so that it may be subjected to such order or decree as the court may make in the particular case.” Mays v. Rose, Freem. (Miss.) 718. Where a defendant is in the possession and enjoyment of the property in controversy, equity always proceeds with extreme caution in taking possession of the property by its receiver, but in all such cases a large discretion must be vested in the chancellor, and the question as to whether or not this discretion has been properly exercised must be determined by the particular facts of each case. Before answer there must be clear proof of fraud, or of imminent danger to the property, before the court through its receiver will take custody of the same. High on Receivers, secs. 191-198. “Courts of equity have the power upon appointing receivers, to order them to take possession of the property which is involved in the controversy, and when such possession is withheld by persons who are parties to the suit, or by others who are claiming under such parties, with notice of the appointment of the receiver, the court may interfere in a summary way and order the delivery of the property, and may* enforce its order by writ of assistance, or attachment.” 34 Cyc. of Law and Procedure, p. 204. “Where the assets are openly visible, the receiver can at once take actual possession, but where their character, amount and whereabouts are unknown, the power of the court is necessarily invoked to aid the receiver in the discovery and obtaining such possession. This is done by an order requiring ■the defendant and others to appear before the master and submit to an examination touching the location, amount and character of the property and effects to the possession of which the receiver is entitled.” Henderson on Chancery Practice, p. 360. A court of chancery may, of course, require a defendant to appear before it and submit to a like examination.

The defendant strenuously contends that the decretal order in this case is not in any way preliminary in its nature; that it, by its very wording, “makes an .ultimate disposition of the controversy between the corporation, through its receiver, on the one hand, and Fred C. Ehman on the other hand, on the question whether Fred C. Ehman received any of the company’s money which he failed to disburse. * * * In other words, the only controversy in which Fred C. Ehman is interested, viz., Has he the company’s money? they believe to be preliminary, and expect to dispose of preliminarily, without according him the rights of a party litigant, or the benefit of the system of pleading, practice, procedure or evidence to which every litigant is .entitled.” We think the defendant misconceives the effect of the interlocutory decretal order entered in this case. “A receiver is defined to be an indifferent person between the parties, appointed by the court, and on behalf of all parties, and not of the complainant or one defendant only, to receive the thing or property in■ litigation, pending the suit.” Baker v. Backus’ Adm’r, supra; St. Louis & S. Coal & Mining Co. v. Sandoval Coal & Mining Co., 111 Ill. 32; Railton v. People, supra. The possession of the property in question by the receiver is the possession of the court, held equally for the greater safety of all the parties concerned. High on Receivers, p. 19; see also sec. 15. The receiver acquires no title to the property by the appointment, but only the right of possession as the officer of the court. He is a. mere custodian pending the litigation. The parties who have the title at the time of the appointment retain it. “The object of the appointment is to secure the property pending the litigation, so that it may be' appropriated in accordance with the rights of the parties as they may be determined by the judgment in the action.” Heffron v. Gage, 149 Ill. 182. To the same effect is Nevitt v. Woodburn, 190 Ill. 283.

The defendant strenuously contends that the master’s findings of fact are not justified by the proof, and that the order in question was not warranted on the merits of the case. We have examined with care the evidence heard before the" master, and wp are satisfied that there is no merit in the defendant’s present contention. In our judgment, the master’s findings are fully warranted by the proof. There is no force in the defendant’s contention that because he appeared before the master as a witness and, in answers to certain questions, specifically denied the truth of the charges made by the complainant against him, that this fact alone precluded the master from making findings of fact against him, and the chancellor from entering the order in question. After a consideration of the entire evidence heard before the master and of the law governing the case, we are satisfied that the chancellor acted justly and properly in entering the order in question in this case.

The order of the Superior Court of Cook county will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Walter R. Swan and Wilbur P. Cooper, Administrators, Appellees, v. Boston Store of Chicago, Appellant.
    Gen. No. 19,976.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 31, 1914.
    Statement of the Case.
    Action by Walter E. Swan and Wilbur P. Cooper, administrators of the estate of Eugene E. Swan; against the Boston Store of Chicago for wrongfully causing the death of plaintiff’s intestate, a boy five years old. On the first trial the plaintiffs secured a judgment for ten thousand dollars, and on appeal such judgment was reversed and the cause remanded (177 Ill. App. 349). At this second trial a judgment of five thousand dollars was rendered in favor of the plaintiffs, and the defendant appealed.
    Winston, Payne, Strawn & Shaw for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    Frederick Z. Marx, for appellees.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Elevators, § 22 —when finding of negligence sustained hy evidence. Evidence held to show that a five-year-old boy was killed by the sudden starting of an elevator when his one foot was on the floor as he was about to leave the elevator, causing him to fall into the elevator shaft, even though one witness answered a question as to the length of time of the accident,—which question enumerated a member of supposed happenings, such as a supposition that the boy was off the car and jumped to get on it,—-in the affirmative.

2. Negligence, § 107*—when negligence of parent will he imputed to child. In an action by parents, or personal representatives, the negligence of such parents of a child of tender years, which contributes to an injury resulting in death, is imputable to the child.

3. Negligence, § 202*—when question of imputed negligence for jury. The rule that the question as to whether or not- a person is in the exercise of ordinary care is usually for the jury, is applicable to a case where,a mother is charged with negligence contributing to the injury of her child.

4. Elevator, § 7*—what duty of operator. Persons operating elevators are carriers of passengers, and such passengers have a right to rely for their safety upon the efficient management of the conductor thereof.

5. Negligence, § 109*—when parents negligent as matter of law. Evidence held not to show as a conclusion of fact or as a matter of law that a mother of a five-year-old boy was guilty of negligence proximately contributing to the child’s injury, though she released her hold of the boy while leaving the car, the accident being due to the sudden starting of the elevator.

6. . Elevator, § 19*—when operator negligent. Evidence held to show that an operator of an elevator was guilty of gross negligence in starting the car while passengers were alighting.

; 7. Death, § 67*—when verdict not excessive. A verdict of five thousand dollars for the death of a five-year-old boy killed by falling into an elevator shaft, held not excessive.

8. New trial, § 28*—when new trial properly refused. The refusal of a new trial because a juror made incorrect and misleading answers on his .voir dire, held not improper, since it did not appear that the juror was prejudiced or biased against the defendant.

9. Appeal and error, § 474*—when misconduct of counsel will not he considered on appeal. A contention that an attorney made improper remarks to the jury will not be considered on appeal where no attention is called to the specific part of her argument which is contended to he prejudicial.

10. Teial, § 121*—what argument of counsel proper. It is not prejudicial error for an attorney to tell the jury what he considers a fair compensation for a plaintiff’s injuries.

11. Trial, § 128*—what remarles of counsel not objectionable. Remarks of an attorney in a personal injury case, in stating his version of what occurred in his office, are improper, but harmless error when the result is not affected.

12. Appeal and error, § 474*—when objection must be made to remarles of counsel. An appellant cannot complain of remarks of an attorney in argument when no objection was made to such remarks at the trial.


text:
    The People of the State of Illinois, Defendant in Error, v. Romald Waltyn, Plaintiff in Error.
    Gen. No. 20,153.
    1. Larceny, § 3

      —what is nature of crime. Under the common law petit larceny was a felony, but in this State it is made a misdemeanor by statute (Hurd’s R. S. 1912, ch. 38, sec. 168, J. & A. f 3792), and the offense has been removed from the category of infamous crimes (J. & A. IT 3972).
    2. Indictment and information, § 41*—how offense must be described. Where a statute defines an offense, no essential element thereof as defined by the statute can be omitted from the indictment or information, but it is not necessary to use the very words of the statute.
    3. Larceny, § 21*—when felonious taking sufficiently described in information. The word “steal” has a uniform signification and means the felonious taking and carrying away of the goods of another.
    4. Larceny, § 21*—when information sufficient. In an information charging petit larceny, if the use of the word' “feloniously” is essential to charge the offense, the word “steal” is sufficient to charge such felonious intent.

      5. Labceky, § 3

      —necessity for felonious intent. A larcenous intent, that is an intent to steal, is clearly an essential element in petit larceny, but a felonious intent seems neither a necessary nor an appropriate averment in a misdemeanor case.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewakt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 31, 1914.
    Louis Greenberg and William A. Jonesi, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, 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 Scanlan

delivered the opinion of the court.

The' plaintiff in error was charged in an information filed in the Municipal Court of Chicago with the offense of petit larceny. He waived a trial by jury, pleaded not guilty, and on the hearing of the case by the court was found guilty of petit larceny, and was sentenced to be imprisoned in the House of Correction for the period of sixty days and to pay a fine of $50. Only a common-law record is filed in this court.

The information charged, in substance, that the defendant on February 10, 1913, in the City of Chicago, County of Cook and State of Illinois, ‘‘ one silver coffee pot, three dessert knives, three table spoons, four ice tea spoons, three table spoons, three table forks, of the value of Fifteen Dollars, the personal goods and property of the Chicago, Burlington and Quincy Railroad Company, the same being a corporation then and there being found, did then and there wrongfully and unlawfully take, steal and carry away, contrary to the statute,” etc.

The plaintiff in error contends that the offense of petit larceny was not sufficiently charged in the information, “on the ground that the information failed to charge the plaintiff in error with the statutory or common-law offense of larceny, in failing to allege that the plaintiff in error ‘feloniously’ did steal, take and carry away;” that under our statute, as well as under the common law, a felonious intention is an essential element of the offense of larceny, and that the omission of the word “feloniously” in an information or indictment charging larceny—grand or petit—is fatal.

The statute defining larceny (J. & A. ¶ 3792) reads as follows: “Larceny is the felonious stealing, taking and carrying, leading, riding, or driving away the personal goods of another. Larceny shall embrace every theft which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained. Private stealing from the person of another, and from a house in the daytime, shall be deemed larceny. Larceny may also be committed by feloniously taking and carrying away any bond, bill, note, receipt or any instrument of writing of value to the owner.”

The first question for us to determine is, under the practice in this State, in an information charging petit larceny, is it absolutely essential that the intent should be alleged by the use of the word “feloniously”?

Under the common law, an indictment for treason alleged that the act was committed traitoriously, for a felony, that it was done feloniously, and where neither of these words was used, the offense charged was at most a misdemeanor. The indictment in ancient times was in Latin, and because of the grave punishments meted out to defendants in treason and felony cases it was of great importance to a defendant that the indictment should show on its face, by some apt, precise and well-understood term, the nature of the offense with which he was charged. Bishop on Criminal Procedure (3rd Ed.) p. 335; 1 Chitty’s Griminal Law, p. 242. Under the common-law practice -the word “feloniously” was absolutely essential in all indictments charging a felony, and it was the settled rule to charge that the offense was committed feloniously, and this epithet could not be supplied by any other word, or by any circumlocution. Com Dig. Indictment (G. 6); Bac. Abr. Indictment (G. 1); 2 Hale, . Pl. Cr. 172, 184; 1 Ben. & H. Lead. Cr. Cas. 154. The word “feloniously” was not used in an indictment charging a misdemeanor. Bishop on Criminal Procedure (3rd Ed.) secs. 534-537. In some of the States • the rule prevails that if an indictment charges a misdemeanor and the word “feloniously” is used, the indict.ment is bad, but the prevailing doctrine is that in such a case the word “feloniously” is regarded as surplusage, and the indictment is held to be good. 22 Cyclopedia of Law and Procedure, p. 233; Bishop on Criminal Procedure (3rd Ed.) sec. 537.

Uhder the common law petit larceny was a felony, but in this State it is made a misdemeanor by statute (Hurd’s R. S. 1912, ch. 38, sec. 168, J. & A. ¶ 3793), and in 1911, the legislature removed the offense from the category of infamous crimes. (Hurd’s R. S. 1912, ch. 38, sec. 279, J. & A. ¶ 3972.) Before the passage of this last act it was necessary to prosecute defendants charged with petit larceny by indictment. People v. Russell, 245 Ill. 268. Such is not the case since the passage of the last-mentioned act. If the common-law rule of pleadings governs the present case, it would seem elear that it is not necessary to use the word “feloniously” in an information charging petit larceny.

Our statute gives but one definition of larceny, and as this states that “larceny is the felonious stealing,” etc., it is argued that the word “felonious” is intended to define the animus furandi or the intention to steal, and that to constitute larceny under the statute—petit or grand—the stealing .must be done with felonious intent, and that this intent must be charged in the information, and that as the information in the present case does not allege a felonious intent, it is fatally defective. For the purposes of this particular case, we may assume the correctness of the contention that a felonious intent is an essential element in the offense of petit larceny. While it is a well-settled doctrine in this State that where á statute defines an offense, no essential element of the offense as defined by the statute can be oipitted from the indictment or information, it is not necessary, however, to use in an indictment or information the very words of the statute defining an offense; it is sufficient if the words used convey the same meaning. People v. St. Clair, 244 Ill. 444. Therefore, in determining the present contention, it is only necessary for us to decide whether the information in this case sufficiently alleges the felonious intent to steal.

The information charges, inter alia, that the plaintiff in error “did then and there wrongfully and unlawfully take, steal and carry away, contrary to the statute.”

In 36 Cyclopedia of Law and Procedure, p. 1258, we find the following: ‘ ‘ Steal or Stealing. As a noun, a criminal taking, obtaining, or converting of personal property with intent to' defraud or deprive the owner permanently of the use of it; a term which when used in connection with property which is a subject of larceny, is said to mean the felonious taking; the felonious taking and carrying away of the personal goods of another ; the wrongful or fraudulent taking and carrying away of personal property by trespass with a felonious intent to deprive the owner thereof, and convert the same to the taker’s own use; synonymous with/larceny’ or with ‘theft.’ As a verb, to take a man’s property from his custody with a felonious intent; to commit larceny; to take and carry away feloniously; to take without -right or leave, and with intent to keep wrongfully.” (The author of the above article cites many authorities in support of his text.) Theft is a popular word for larceny; Bouvier’s Law Dictionary, vol. 2, p. 1115. The word “steal” has a uniform signification, and in common as well as legal parlance means the felonious taking and carrying away of the goods of another. State v. Chambers, 2 Greene (Ia.) 308; State v. Boyce, 65 Ark. 82; People v. Urquidas, 96 Cal. 239; People v. Tomlinson, 102 Cal. 19. ‘ To steal a man’s property is to take it from his custody with a felonious intent.” State v. Fitzpatrick, 9 Houst. (Del.) 385. The word " steal ’ ’ means to take and carry away feloniously, without right or leave. State v. Smith, 31 Wash. 245; People v. Lopez, 90 Cal. 569. The word “steal” has a legal signification. To steal is to commit larceny. State v. Tough, 12 N. Dak. 425.

Therefore, if we assume that a felonious intent is an essential element in the statutory offense of petit larceny, it would seem clear, from the foregoing authorities, that the word “steal” in the present information sufficiently alleges the felonious intent, for the reason that the word “steal” ex vi termini imports a felonious intent.

The defendant in error contends that it is not necessary to allege in an information charging a misdemeaner that the act was committed feloniously. In support of this contention it cites the following cases: State v. Boyce, supra; Gardner v. State, 55 N. J. Law 17. In these cases it is held that it is not necessary in cases of petit larceny (even where the statute defines larceny as the felonious stealing, etc.) to charge that the taking, stealing, etc., was feloniously done, but the decisions are not predicated entirely upon that ground alone, for it is held in both cases that the word “steal” in the indictments in question sufficiently imported a felonious taking, etc. Unless it be held that our legislature intended by section 167 (J. & A. ¶ 3792) of the Code (the one that defines larceny) to make a felonious intent an essential element in both grades of larceny, the prevailing doctrine heretofore referred to in this opinion, a doctrine that is the product of the common-law practice, to the effect that the word “felonious” should not be used in an indictment or information charging a misdemeanor, would seem to apply to the present case. Under the general rule applying to the interpretation of statutes, section 167 should be read in connection with sections 168 and 279, in petit larceny cases, and when the three sections are considered together, there would seem to be much force in the contention of the defendant in error that, under our statute, a felonious intent is an essential element in grand larceny but not in petit larceny. A larcenous intent, that is an intent to steal, is clearly an essential element in petit larceny, but a felonious intent seems neither a necessary nor an appropriate averment in an indictment or information in a misdemeanor case. However, in the view that we have taken of the contentions of the plaintiff in error, we do not deem it necessary in this case for us to pass upon the contention of the defendant in error.

The judgment of the Municipal Court of Chicago will be affirmed.

Affirmed.


author: Mr. Presiding Justice Barnes

text:
    The Pullman Company, Appellee, v. The Vinegar Bend Lumber Company et al., on appeal of Vinegar Bend Lumber Company, Appellant.
    Gen. No. 19,993.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed January 5, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Appeal by The Vinegar Bend Lumber Company from a decree requiring it and other defendants in an inter-pleader suit to interplead. To the original bill appellant filed a sworn answer and served notice thereof on the complainant, and no replication thereto was filed. Later the complainant on leave given filed its amended bill of complaint waiving answers under oath, and issues were formed thereon by the filing of answers and replications, appellant not waiving any rights under said sworn answer.
    The pleadings showed that complainant was indebted in the sum of $1,222.56 for lumber which both appellant and one Joice claimed to have sold to it; that Joice assigned his interest in the money to the Old Colony Trust & Savings Bank; that the latter brought suit ■therefor against complainant in the name of Joice; that one Brooks, a creditor of appellant, summoned .complainant as garnishee in an attachment suit against appellant, in which Joice and the Bank intervened as claimants of the money, and in which was later filed a stipulation by which the several parties, except Brooks, agreed to enter appearance in this interpleader suit, where the issues should be tried.
    At the hearing the only proofs adduced were by the complainant, consisting of a transcript of the record of the proceedings in the attachment suit and the answer of complainant as garnishee.

      Abstract of the Decision.
    I. Stipulation, § 19

      —when pleading may he considered as evidence. Where a stipulation was entered into contemplating that the title to a fund which was at issue in a garnishment suit, should be submitted for adjudication in an interpleader suit, where a final decree should be entered, in effect each party waived any question as to the sufficiency of the bill and consented to interplead, wherefore one party could not contend that under sec. 29 of the Chancery Practice Act (Hurd’s R. S. ch. 22, sec. 29, J. & A. jf 909) its sworn answer was to be taken as true.
    2. Interpleader, § 2*—what' is nature of suit. In an interpleader suit the complainant’s office is widely different from that of the ordinary complainant in a suit in equity, and the answers of defendants may be read against one another.
    3. Interpleader, § 7*—when pleading sufficient. In an inter-pleader suit, where the complainant admitted its indebtedness for certain lumber which two parties claimed to have sold, allegations of one - of such parties that the complainant gave a written order for the lumber, that same was shipped to the complainant and that the latter knew it was purchasing the lumber from such interpleader, were mostly conclusions, and the answer did not set up facts showing liability upon an independent undertaking without reference to the liability to the other claimant.
    4. Interpleader, § 14*—what must he shown hy answer. In an interpleader suit, where the original bill showed that the debt or fund was claimed by several defendants, that complainant was not interested in it and that it emanated from a common source, it was unnecessary to set forth in detail the alleged title of defendants.

      At the close of the case, appellant moved to dismiss the several bills for want of equity, but the motion was denied and the decree requiring* defendants to interplead, and a deposit in court of the sum in controversy, was entered, whereupon this appeal followed.
    W. Knox Haynes and Michael Feinberg, for appellant.
    H. T. Wilcoxon, for appellee; William Burry, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

5. Interpleader, § 5 —when MU sufficient. A bill showing that1 a fund due for lumber sold was claimed by all of several parties against whom the bill demanded relief, that it had a common source in the lumber or sale thereof, that complainant was not interested therein and was indifferent among the complainants, contained sufficient elements essential to the equitable remedy of interpleader.

6. Interpleader, § 14*—when cross-Mil unnecessary. A cross-bill is unnecessary for the assertion and adjustment of a claim of one interpleading, the answer being sufficient.


author: Mr. Justice Gridley

text:
    William Sumner Smith, Defendant in Error, v. Harry Rosenwasser et al., trading as Rosenwasser Brothers, Plaintiffs in Error.
    Gen. No. 20,109.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Attachment suit by William Sumner,Smith against Harry Rosenwasser and Morris Rosenwasser, copartners, trading as Rosenwasser Brothers, in New York City, the plaintiff claiming that they owed him $156.96. Tucker & Hagen, a corporation, was served as garnishee. Subsequently the defendants appeared and entered into a recognizance, whereupon the attachment was released. Plaintiff’s claim was based upon the refusal of defendants to deliver him certain sandals, resulting in a loss' of profits because of his inability to resell the sandals. It appeared that the defendants refused to deliver the goods unless the plaintiff paid cash or procured somebody to guarantee his account for him, though they had contracted to allow him a certain time for payment. The case was tried beforé the court without a jury, resulting in a judgment against defendants for $156.96, whereupon this writ of error was brought.
    Abstract of the Decision.
    1. Sales, § 381

      —when buyer bound to reduce damages. Where a seller breached a contract whereby sandals were to be delivered to a purchaser, but the purchaser was notified of the refusal to deliver the goods unless he paid cash or obtained somebody to guarantee his account, and such purchaser could have obtained similar sandals and reduced his damages, it was the duty of such purchaser to so reduce his damages, and only nominal damages were recoverable.
    2. Sales, § 376*—what measure of damages for breach of contract. In an action for breach of contract in failing to deliver chattels or other commodities, where the purchase price has not been paid, the measure of damages is the difference between the contract price and the market value of the property at the time stipulated for delivery.
    Culver, Andrews & King, for plaintiffs in error.
    Willis Melville, for defendant in error; Ernest C. Reniff, of counsel.

      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.


text:
    City of Chicago, Plaintiff in Error, v. James Cullen, Defendant in Error.
    Gen. No. 20,133.
    1. Appeal and error, § 782

      —what is nature of MU of exceptions. A hill of exceptions is the pleading of the party presenting it, and to authorize a reversal of the judgment, prejudicial error must be shown to have occurred at the trial.
    2. Appeal and error, § 1265*—what wiU "be presumed on appeal. In cases at law the presumption is in favor of the correctness of the trial court’s rulings unless their incorrectness is made to affirmatively appear.
    3. Appeal and error, § 1034*—when Appellate Court will not take judicial notice of ordinance. Section 54 of the Municipal Court Act as amended in 1907 (Hurd’s R. S. ch. 37, sec. 317, J. & A. jf 3371), providing that the Municipal Court shall take judicial notice of all general ordinances of the City of Chicago, relates to the procedure of the Municipal Court and does not require the Appellate Court to take judicial notice of such ordinances, and such practice would destroy uniformity in the procedure of the Appellate Court, since under established rules of practice the court could not take judicial notice of such ordinances in cases taken up from the Circuit or Superior Courts.
    4. Appeal and error, § 1034*—what Appellate Court does not take judicial notice of. The Appellate Court cannot take judicial notice of the rules of the Municipal Court.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 5, 1915.
    William H. Sexton and James S. McInerny, for plaintiff in error; Ulysses S. Schwartz, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.

On May 16, 1913, the plaintiff, City of Chicago, filed the following statement ,of claim in the , Municipal Court of Chicago:

“Plaintiff’s claim is for a penalty not exceeding $100 for a violation by defendant of section 1541 of the Chicago Code of 1911, in that the defendant did, pn ■ to-wit, the 1st day of January, 1913,. keep open a certain saloon, barroom or tippling house, at to-wit, 344 E. 31st street, within the said city, during the nighttime,' between the hours of one o’clock A. M. and five o’clock 'A. M., and did within the said place sell intoxicating liquors between the said hours.”

The defendant, James Cullen, entered Ms appearance and waived a trial by jury, and on August 7,1913, the cause was tried before the court, resulting.in'the court finding the defendant not guilty and entering a . judgment on the finding.

- From the stenographic report of the proceedings at the trial, certified by the trial judge as being correct, it appears that two witnesses on behalf of the City each testified, in substance, that they went into the saloon or barroom at No. 339 East 31st street in the 'City of'CMcago, and there purchased beer of the bartender at 1:45 A. M. on the morning of January 1,1913. The defendant testified, in substance, that his saloon . on the morning in question was located at No'. 341 East 31st street; that his cafe was located at No. 339 - East 31st street; that at one o’clock on said morning he personally locked the doors of his saloon and closed ' the saloon and bar, and that he “closed up' the cafe at two o’clock or a little after.” In said stenographic report it is stated that the above “is all the evidence offered or heard on the hearing of the above entitled cause.”

- It is here urged by counsel for the City -that the judgment should be reversed because the finding and ■ judgment are against the weight, of the evidence, in that it clearly appears that the defendant was guilty of a violation of said section 1541 of the Chicago Code of 1911.

Nowhere in the stenographic report is it shown what the provisions of said section of said Code are. “A bill of exceptions is the pleading of the party presenting it, and to authorize a reversal of the judgment prejudicial error must be shown to have occurred at the trial. In cases at law the presumption is in favor of the correctness of the trial court’s rulings unless their incorrectness is made to affirmatively appear.” Kiesewetter v. Knights of Maccabees, 227 Ill. 48, 52; People v. Drainage District No. 3, 235 Ill. 278, 280. Section 54 of the Municipal Court Act, as amended in 1907 (J. & A. ¶ 3371), provides, inter alia, that the Municipal Court shall take judicial notice of “all general ordinances of the City of Chicago.” In City of Chicago v. Williams, 254 Ill. 360, 365, it was held that said section relates to the procedure of the Municipal Court;. and it was said that “the fact that the statute in question does not require the appellate tribunal to take judicial notice of the ordinance is no reason why the" act is invalid as applied to the municipal court”; and it was further said, it being conceded in that case that there was an ordinance of the City prohibiting the offense charged against Williams and that Williams violated said ordinance: “We have no occasion to examine the ordinance, and hence there is no necessity for us to determine whether we would judicially take notice of it or whether it would have to be brought to our attention by some other method.” In the record before us in the present case it does not appear to be conceded that section 1541 of said Chicago Code prohibits the acts charged in the statement of claim to have been done by the defendant, or that the defendant violated said section of said Code. And, in our opinion, this appellate court cannot take judicial notice of what the provisions of said section are. Illinois Cent. R. Co., v. Ashline, 171 Ill. 313, 315; City of Chicago v. Tearney, 187 Ill. App. 441. And, said section not appearing in the stenographic report, we cannot say, even admitting for the sake of the argument only that the facts as stated by plaintiff’s witnesses were true, that the defendant was guilty of any offense, or that the trial court committed an error in entering the judgment.

It is the law that this court cannot take judicial notice of the rules of practice of the Circuit or Superior Courts of Cook county. Anderson v. McCormick, 129 Ill. 308, 314; Bonney v. McClelland, 138 Ill. App. 449, 454. Section 20 of the Municipal Court Act, as amended in 1907 (J. & A. ¶ 3332), contained the provision that the Supreme Court and this court, in cases brought to them from the Municipal Court by appeal or by writ of error, shall take judicial notice of the rules of practice from time to time in force in said Municipal Court. But our Supreme Court, in the case of Sixby v. Chicago City Ry. Co., 260 Ill. 478, has held that, by reason of the provisions of section 29 of article VI of the Constitution, said section 20 is void, and that, inasmuch as this appellate court, in all eases coming from any court except the Municipal Court, cannot under established rules of practice take judicial notice of the rules of the trial court, to allow this court to take judicial notice of the rules of the Municipal Court would destroy uniformity in the procedure and practice in this court.

If it be argued that when a judgment of a nisi prius ' court is presented to an appellate tribunal for review, such appellate tribunal should take judicial notice of all things of which said nisi prms court is required to take judicial notice (Fisher v. Charles Levy Circulating Co., 182 Ill. App. 393, 399, decided prior to the filing of the opinion iii the Sixby case, supra), we think it is a sufficient answer to say that, inasmuch as under established rules of practice this court cannot take judicial notice of ordinances of the City of Chicago in cases coming to this court from the Circuit and Superior Courts, to allow this court to take judicial notice of such ordinances in cases coming from the Municipal Court would also destroy uniformity in the procedure and practice in this court.

Finding no reversible error in the record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Charles Enberg, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,145.
    Municipal corporations, § 1234

      —when notice of suit must he alleged. Where a statement of claim in a fourth-class suit commenced in the Municipal Court against a city to recover for personal injuries fails to allege the giving of notice of the accident to the city as required by section 2 of the Act of 1905 (Hurd’s St. 1912, p. 1290, ch. 70, J. & A. 6190) it is defective, and an amended statement alleging the giving of such notice but filed more than one year after the accident is open to the plea of the statute of limitations.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 5, 1915.
    Rehearing denied January 16, 1915.
    John E. Erickson, for plaintiff in error.
    Willliam H. Sexton and N. L. Piotrowski, for defendant in error; David R. Levy, of counsel.

      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.

On November 27, 1912, Charles Enberg, plaintiff, commenced an action of the fourth class in tort in the Municipal Court of Chicago against the City of Chicago.. In his statement of claim plaintiff alleged, in substance, that his claim was for damages on account of personal injuries sustained by him on June 24,1912, at Kinzie street and the river in said City, as a result of the negligence of the bridge tenders and. servants of the defendant in lifting or raising the bridge, crossing the river at said Kinzie street, while plaintiff was upon and crossing said bridge, whereby he sustained a fall from the bridge and was severely injured, etc.

In 1905 the legislature passed an act entitled “An Act concerning suits at law for personal injuries and against cities, villages and towns.” Hurd’s St. 1912, p. 1290, ch. 70. (J. & A. ¶¶ 6189 et seq.) Section 1 of said act provides, in substance, that no such suit at law. shall be brought in any court within this state by any person unless the same be commenced “within one year from the time such injury was received or the cause of action accrued.” Section 2 provides, in substance, that any person, about to bring any such suit at law in any court, shall, within six months from the date of injury or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney, if there is a city attorney, and also in the office of the city clerk, a statement in writing, giving certain particulars, mentioned in the section, of the accident. Section 3 provides, in substance, that if the “notice” provided for by section 2 be not filed as provided,-then any such suit “shall be dismissed and the person to whom any such cause of action accrued for any personal injury should be forever barred from further suing.”

Plaintiff’s said statement of claim did not contain any allegation to the effect that notice, as provided in section 2 of said act, had been given to the City. On October 15,19Í3, more than one year after the happening of the accident as alleged, plaintiff, by leave of court, filed an amended statement of claim, containing substantially the same allegations as the original statement and the additional allegation that “notice of the said accident and injuries was served upon the defendant, as required by statute, on to-wit, the 15th day of August, A. D. 1912.”

To this amended statement of claim the City filed an affidavit of merits in which it was stated, inter alia, that the City was not liable because plaintiff’s amended statement of claim alleges a new cause of action and is subject to the statute of limitations, etc.

It appears from the statement of facts, signed by the judge and contained in the clerk’s transcript, that on December 6, 1913, the parties appeared by their respective counsel, and counsel for the City moved the court to dismiss the cause, stating that he had previously notified plaintiff’s counsel that upon the hearing he would raise the objection, as stated in the affidavit of merits, that plaintiff’s amended statement of claim alleged a new 'cause of action and was barred by the statute of limitations; that plaintiff’s counsel had requested him to raise said objections before the trial; and that both parties had agreed that said objections be then considered by the court and decided. Thereupon argument was had, and on December 8, 1913, the court stated that the motion of the City would be allowed, and that for the purpose of having the record in proper shape for an appeal the following order would be entered, to wit: “Plaintiff demurs to defendant’s plea of the statute of limitations. Plaintiff’s demurrer overruled. Plaintiff elects to stand by his demurrer. Motion of plaintiff in arrest of judgment for costs against the plaintiff overruled. Judgment against plaintiff for costs.” It further appears from the clerk’s transcript that on December 8, 1913, the following proceedings were had : “Now comes the defendant in this cause and moves the court to dismiss this suit out of this court, which motion the court sustains.”

It is here assigned as error that the court erred in overruling plaintiff’s demurrer to defendant’s plea of the statute of limitations, and in dismissing the suit and entering judgment against plaintiff for costs. It is argued that because this is a fourth-class suit commenced in the Municipal Court and because of the provisions of sections 3 and 40 of the Municipal Court Act (J. & A. ¶¶ 3315, 3352), the decision in the case of Walters v. City of Ottawa, 240 Ill. 259, is not applicable. In that case the declaration in a personal injury-suit, commenced in the Circuit Court of La Salle county against the City of Ottawa, failed to aver that the notice or statement required by section 2 of said act of 1905 was given as therein required, and it was held that such declaration stated no cause of action, and that an amendment to the declaration, supplying such averment, filed more than one'year after the injury, was open to the plea' of the statute of limitations. In the present case plaintiff’s original statement of claim did not contain such an averment as to such a notice, and his amended statement of claim supplied the missing averment, but the amended statement was not filed until more than one year after the happening of the accident and when plaintiff received the injuries complained of. We are of the opinion that the same rule should be applied in the present case. As said by this court in Devine v. Metropolitan West Side El. Ry. Co., 162 Ill. App. 629, 632: “We are not prepared to hold that it is not necessary that the statement of claim, filed in the Municipal Court in cases of the fourth class, should state a cause of action. Nothing in the Municipal Court Act justifies the assumption that it was intended to abolish the necessity of stating a cause of action in this class of cases.”

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    J. M. Hoyt, Defendant in Error, v. Earl J. Walker, Plaintiff in Error.
    Gen. No. 20,171.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by J. M. Hoyt against Earl J. Walker to recover of him as indorser the balance due on the following promissory note:
    “Chicago, Nov. 1st, 1911.
    On demand after date we promise to pay to the order of J. M. Hoyt ($1,000) one thousand and no/100 dollars, payable at-, value received with interest at the rate of 6 per cent per annum. Four days’ notice agreed upon.
    Industrial & Historical Pageant Corporation,
    By Laurence Clark, Pres.”
    The note was indorsed by “Laurence Clark,” “H. H. Hoyt, Jr.,” “Earl J. Walker,” and also had the following indorsement: “Jan. 11/12, $120 paid on principal, J. M. H.” The cause was tried before the court without a jury, resulting in the court finding the issues against the defendant and assessing plaintiff’s damages at $986.29. Judgment against defendant was entered on the finding, from which judgment defendant brought error.
    Miller, Starr, Packard & Peckham, for plaintiff in error; Charles L. Cobb, of counsel.
    Eugene L. Garey and Archie J. Deutschman, for defendant in error; Frank D. Fulton and John M. Rankin, of counsel.

      Abstract of the Decision.
    Appeal and error, § 1401—whew finding' supported hy evidence. In an action against an indorser on a promissory note, held that the finding and judgment against such indorser was amply supported by the evidence, there being proper presentment and demand for payment on the maker and notice of dishonor to the indorser, and the evidence did not show a material alteration of such note by adding words as to certain days' of notice after the note was indorsed., , .

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Warren E. Colburn and Fletcher A. Tinkham, trading as W. E. Colburn & Company, Defendants in Error, v. Commercial Security Company, Plaintiff in Error.
    Gen. No. 20,195.
    (Not to be reported in full.)
    .Error to the Municipal Court of Chicago; the Hon, Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Action in tort in the- Municipal Court of Chicago by Warren B. Colburn and Fletcher A. Tinkham, trading as W. E. Colburn & Company, and carrying on the Merchants Exchange Bank, against the Commercial Security Company, a corporation, to recover $120 of the defendant and also to recover other amounts aggregating the sum of $45. The cause was tried before the court without a jury. At the conclusion of the hearing the court announced that the plaintiffs were not entitled to recover any of the amounts aggregating $45, but as to the amount of $120 found the defendant guilty as charged in plaintiff’s statement of claim. Judgment was entered on the finding' and defendant brought error.
    Abstract of the Decision.
    I. Appeal and error, § 1403

      —what sufficient to support finding. Where a statement of claim was for money collected by the defendant with notice of the plaintiff’s right thereto under a conditional contract of sale of a piano, and the defendant’s affidavit of merits admitted the collection, and alleged that the plaintiff elected to sue in trover for the then value of the contract, and obtained a judgment therefor which was paid, and such affidavit only made an issue of law that the plaintiffs were estopped from claiming the $120, and such theory was further evidenced by admissions in open court by the counsel for defendant, the admissions were sufficient to support a finding and judgment against the defendant, though no other evidence was introduced at the trial.
    2. Election op remedies, § Í3*—when suit not barred. In an action to recover money collected by a defendant with notice of the plaintiffs! right thereto under a conditional -contract of sale of a piano, plaintiffs were not estopped from bringing their action by the fact that a prior action in replevin for the possession of the contract had been brought, and because plaintiff- afterwards elected to proceed in trover for the value of the contract, since when plaintiffs commenced, their action in replevin they could not have sued for the undesignated money paid on the contract, and since, under the facts, a separate right of action existed as to such money.
    Reference should also be had to the case of Colburn v. Commercial Security Co., 172 Ill. App. 510, where the parties were the same.
    John T. Booz, for plaintiff in error.
    H. M. Matthews, for defendants in error.

      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.


text:
    Lina Walper et al., Plaintiffs in Error, v. Andrew Malkewicz, Defendant in Error.
    Gen. No. 20,214.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Lanklobd and tenant, § 453

      —what sufficient to show surr render o/ premises. The fact that repairs are made hy a lessor after a lessee has moved away from the premises is not sufficient as an acceptance of the premises and a surrender.

      Error to the Municipal Court of Chicago; the Hon. Ebank H. Gbaham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed January 5, 1915.
    Statement of the Case,
    Action of the fourth class in the Municipal Court of Chicago by Lina Walper, John Walper and Rudolph Walper, heirs of Jacob Walper, deceased, against Andrew Malkewicz on a written lease. It appeared that certain premises were leased for three years to the defendant, at a total rental of $936, payable monthly in advance at the rate of $26 per month, and that during the last year the defendant moved away from the premises and failed to pay eight months’ rent. The defendant contended that the lease was can-celled and terminated. The case was tried before the court without a jury resulting in a judgment in favor of the defendant, whereupon the plaintiffs brought this writ of error.
    John B. Fruechtl, for plaintiffs in error.
    Frank H. Novak, for defendant in error.

      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. Landlord and tenant, § 301*—when landlord entitled to rent. Where evidence showed the signing of a written lease, that the lessee moved away from the premises and failed to pay rental for the last eight months of his term, and the evidence failed to show that the lease was cancelled, the lessor was entitled to recover the rental due under the lease.


text:
    Morris Friedland, Defendant in Error, v. Samuel Isenstein, Plaintiff in Error.
    Gen. No. 20,227.
    1. Broker, § 36

      —when broTcer entitled to compensation. Evidence held to show that a person employed a real estate broker to sell certain property, that such broker in good faith undertook the employment and was the procuring cause of the sale, though not present when it was consummated, wherefore he was entitled to commissions.
    2. Brokers, § 5*—when license necessary. If an ordinance declares it to be unlawful for a person to act as a broker without a license, and prescribes a penalty for its violation, an unlicensed broker cannot recover commissions, even though the ordinance does not declare the contract of employment void.
    3. Brokers, § 5*—when license sufficient. Where a broker’s license is issued to a partnership, and one of the partners succeeds to the business of the partnership upon dissolution of the firm and continues business individually at the same location, he is to be considered a licensed broker.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed January 5, 1915.
    Rehearing denied January 16, 1915.
    Gustav E. Beerly, for plaintiff in error; Lewis Rinaker and Roy S. Gaskill, of counsel.
    Roman G. Lewis, for defendant in error.

      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.

Morris Friedland, plaintiff, on January 19, 1914, recovered a judgment for $1,000 against Samuel Isenstein, defendant, in the Municipal Court of Chicago, for commissions as a real estate broker. The defendant by this writ of error seeks to "reverse the judgment. The cause was tried before the court without a jury.

The plaintiff in his statement of claim alleged in substance that, being a licensed real estate broker, he procured one B. Weinstein as a purchaser for defendant’s property, situate at Nos. 3254-60 W. Madison street, Chicago, and that said property was sold to said Weinstein for a consideration of $40,000, and that he claimed a commission of $1,000, no part of which sum had been paid him. The defendant in his "affidavit, of merits alleged, in substance, that plaintiff was not'the procuring cause of said sale, and that at the time the sale was made, in July, 1913, plaintiff was not a duly licensed real estate broker under the provisions of sections 192-198 of chapter 15 of the Revised Municipal Code of Chicago,'and that defendant was not indebted to plaintiff in any sum.

On the trial, it was not disputed that in July, 1913, the defendant sold the property to Weinstein and received therefor," in cash and another piece of real estate, the equivalent of $40,000, but the evidence was conflicting as to whether or not plaintiff was the procuring cause of the sale. Plaintiff testified, in substance, that during the year 1913 he was in business as a real estate broker, with offices at No. 6l3 Ashland Block, Chicago,.and was also an attorney at law; that prior to March 1, 1913, defendant listed with plaintiff several pieces ■ of real estate for sale, including the property in question on West Madison street; that early in March plaintiff submitted the property in question to said Weinstein who expressed a willingness to consider purchasing same on a basis of part cash and exchanging a smaller piece of property owned by him ; that plaintiff shortly thereafter asked defendant to call at his office, which the latter did, and plaintiff told defendant of his conversation with Weinstein, and requested defendant to at once go with one Weinshenker and look at the smaller piece of property, owned by Weinstein, which Weinstein had suggested exchanging. Weinshenker testified that he was present in plaintiff’s office at the time, and that he and defendant immediately went and viewed said Weinstein property. Plaintiff further testified that he saw defendant at the latter’s house on the same evening and they talked over terms of the proposed transfer, and that defendant told plaintiff he would get $1,000 as soon as the deal was completed; that shortly thereafter plaintiff again called on Weinstein and informed him of the terms on which defendant had said he was willing to make the trade; that on March 10th he sent defendant a registered letter (copy of letter and original registry receipt were introduced in evidence) advising defendant that he had submitted defendant’s property to Weinstein and was negotiating with him; that subsequently he continued his negotiations; and that later, in July, 1913, he learned that the deal had been consummated between the parties when he was not present. The defendant, while he admitted that he talked with plaintiff early in March regarding the sale of the property in question and that plaintiff came to his house occasionally during the months of May and June, testified to the effect that one Goldberg, a real estate broker, was the procuring cause of the sale and that he paid Goldberg a commission. He denied ever having agreed to pay plaintiff a commission of $1,000 when the deal was completed. He admitted being in plaintiff’s office early in March and going with Weinshenker to view certain property but stated that the property they looked at was not the Weinstein property, afterwards transferred to him in the consummation of the deal, but was another piece of property. Goldberg, a witness for defendant, testified that he first spoke to Weinstein about the Isenstein property in April, 1913 (which was subsequent to the time that plaintiff first presented the same to Weinstein), and that after the deal was consummated he received a commission of $300 from defendant, and also a further commission of $200 for subsequently selling for defendant the property received from Weinstein when the deal in question was consummated. Weinstein, a witness for defendant, testified that he first looked at the Isenstein property shortly after plaintiff first spoke to him about the same.

After careful examination of the testimony of the various witnesses, we cannot agree with the first contention of counsel for defendant, viz., that the finding and judgment are manifestly against the weight of the evidence. On the contrary we think that the evidence tends to show that the defendant employed the plaintiff to negotiate a sale of defendant’s property valued at $40,000, that plaintiff in good faith undertook said em-. ployment and was instrumental in bringing defendant and Weinstein together, whereby the sale to Weinstein was afterwards made, and that, although plaintiff was not present when the -sale was actually consummated, he was nevertheless the procuring cause of the sale.’ Under all the circumstances we think' that he is entitled to the commissions claimed. Hafner v. Herron, 165 Ill. 242; Henry v. Stewart, 185 Ill. 448, 453; Pridmore v. Wilson, 159 Ill. App. 343, 346; Gould v. Ricard Boiler & Engine Co., 136 Ill. App. 322, 331.

It is further urged by counsel for defendant that plaintiff cannot recover because he, individually, was not a duly licensed real estate broker during- the year 1913, and at the times when the sale was being negotiated and when consummated. During the trial sections 192 to 198 inclusive, of chapter 15, of the Chicago Code of 1911, were introduced in evidence. Section 192 provides that it shall be unlawful for “any person or corporation” to engage in the business or act in the capacity of a broker, within the city, without first obtaining a license therefor, and that the written application for such license shall state “the name of the person or corporation and the location of the place or places of business for which such license is desired.” Section 193 provides that if, after the issuance and delivery of a license, “any change shall he made in the place or places of business covered thereby no business shall be carried on in such new location until a notice shall have been given in writing to the city collector.” Section 195 defines a real estate broker as “one who is engaged for others in negotiating contracts relative to real estate.” Section 197 provides that any person “employed by a person or corporation licensed as a broker, who shall himself engage in the business or act in the capacity of a broker,” shall be required to take out a license. Section 198 provides for a penalty by fine for “any person or corporation violating any of the provisions of this chapter.” There was also introduced in evidence a license of the city of Chicago, signed by the mayor and attested by the city clerk, dated January 2, 1913, and expiring December 31, 1913, by which “permission is hereby given Fox & Friedland to conduct the business of General Broker at No. 613 Ashland Blk., in said City, * * * subject to the Ordinances of said City.” The evidence also showed that plaintiff, during January, 1913, and prior thereto, was in partnership with a man named Fox, under the firm name of Fox & Friedland; that the firm was engaged in business as brokers, with offices at No. 613 Ashland Block, Chicago; that said copartnership was dissolved on February 1,1913, and that thereafter plaintiff alone continued said brokerage business at the same place; and that after said dissolution plaintiff obtained no other license during the year 1913, but continued to act as a real estate broker under said license so issued to said firm. It is the law that if a statute or ordinance declares it to be unlawful for a person to act as a broker without a license and prescribes a penalty for its violation, an unlicensed broker cannot recover upon the contract for commissions, even though the statute or ordinance does not, in terms, declare the contract void. Douthart v. Congdon, 197 Ill. 349, 353.

It is contended by counsel for defendant that where a broker’s license is issued,-under the provisions of said chapter 15 of the Chicago Code of 1911, to a partnership in the firm name for the conducting of a brokerage business at a particular place, and one of the partners succeeds to the business of the partnership upon dissolution of the firm and continues that business individually at the same location, but does not take out a new license in his individual name, the latter cannot recover commissions for services rendered as broker after said dissolution and before the expiration of said license so issued to said firm. We are of the •opinion that under such circumstances such broker is •to be considered as a licensed broker under the provisions of said Chicago Code of 1911. Our attention ■has not been directed by counsel to any Illinois case where the question has been considered. In the case of City of St. Charles v. Hackman, 133 Mo. 634, it appeared that the ordinance of the City of St. Charles provided that: “No person, firm, corporation or association of persons” shall open or keep a meat shop or market place in said city without having first obtained a license, for which the sum of $50 per year shall be •paid; that any “person” violating the"provisions of the section shall be deemed guilty of a misdemeanor and upon conviction shall be*fined; and that every such license shall contain the name of the “person” in whose favor it is issued, and ‘ ‘ shall designate the location where the business is to be carried on, which location shall not be changed without the consent of the mayor endorsed on such license, but such license shall not be transferable or used for the benefit of any person other than the one to whom it shall have been issued. ’ ’ It further appeared that a license to keep a meat shop for one year at a location named was issued on June 6, 1892, to Langstadt & Hackman, who then were copartners; that on August 19 Langstadt retired and the partnership was dissolved; that Hackman then carried on the meat shop at the same place until June 6, 1893, without taking out a new license in. his own name, and that action was brought against him for an alleged breach of the ordinance. The court held that the firm license was a sufficient license for Hackman to conduct the business at the same location after said dissolution, saying (p. 643): “Looking at the purpose of the tax and the terms of this ordinance it would seem that a license to two persons to carry on a certain business for a year at a certain place should naturally be interpreted to include the right of one of them to so carry on that business. A license to a firm of two would ordinarily be understood to be a license to one of the firm, on the general principle that the greater includes the less.” See also United States v. Glab, 99 U. S. 225; Spielman v. State of Maryland, 27 Md. 520; Hinckley v. Germania Fire Ins. Co., 140 Mass. 38; United States v. Davis, 37 Fed. 468.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    James Holec and Frank Holec, trading as Holec Brothers, Plaintiffs in Error, v. Kate Beranek, Defendant in Error.
    Gen. No. 19,529.
    (Not to be reported in full.)
    Abstract of the Decision.
    Assumpsit, action op, § 93

      —when person entitled to recovery for labor performed. In an action for labor and material in erecting mason work for a building, held that recovery should have been allowed for extra work and for a portion of a balance due on the contract which was substantially performed, and a finding and judgment in favor of the defendant was contrary to the evidence.
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Action by James Holec and Frank Holec, trading as Holec Brothers, against Kate Beranek to recover $486.87. The action was on a written contract wherein the plaintiffs, for $1,070, agreed to furnish labor and material and to erect mason work for a certain building, the plans being furnished by architects employed by the defendant. The plaintiff’s claim was for $300, being a balance due on the contract, and $190.03 for extra work. The case was tried before the court without a jury and the issues were found in favor of the defendant, whereupon the plaintiffs brought error.
    Charles J. Michal, for plaintiffs in error.
    F. J. Karasek, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Gladys Linn, Defendant in Error, v. United Brotherhood of Carpenters and Joiners of America, Plaintiff in Error.
    Gen. No. 20,152.
    (Not to be reported in full.)
    Abstract of the Decision.
    Insurance, § 788

      —when use of intoxicants precludes recovery. In an action to recover a funeral benefit, held that the greater preponderance of evidence showed that the plaintiff’s' intestate died from the effects of the excessive use of alcoholic liquors, and under the constitution of defendant’s society, plaintiff was not entitled to benefits, wherefore a' verdict in favor of the plaintiff was manifestly wrong.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    ¡Statement of the Case.
    Action by Gladys Linn against the United Brotherhood of Carpenters and Joiners of America to recover a funeral donation or benefit of two hundred dollars, plaintiff being the widow of Robert Linn, who was a member of defendant Brotherhood. Defendant claimed that the death of Linn was caused by intemperance or his own improper conduct; that he died of delirium tremens and that under the constitution of the Brotherhood he was not entitled to any funds. The case was tried before the court with a jury and a verdict was returned in favor of plaintiff for two hundred dollars, upon which judgment was entered, whereupon the defendant brought error. .
    Frank Foster, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Crescent Fuel Company, Defendant in Error, v. David Bernstein and Lena Bernstein, Plaintiffs in Error.
    Gen. No. 20,180.
    (Not to be reported in full.)
    Abstract of the Decision.
    Judgment, § 190

      —when judgment against■ coparty erroneous. In an action for goods sold and delivered, a judgment against, two defendants is erroneous where there was no evidence showing the indebtedness of one of such. defendants.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Suit by Crescent Fuel Company against David Bernstein and Lena Bernstein to recover for coal sold and •delivered. The case was tried before the court without a jury and plaintiff recovered a judgment of $120.20, whereupon the defendants brought error.
    Aaron Soble, for plaintiffs in error.
    Deming & Jarrett, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Ed. V. Price & Company, Appellant, v. St. Louis Southwestern Railway Company, Appellee.
    Gen. No. 20,202.
    (Not to be reported in full.)
    Abstract of the Decision.
    Carriers, § 93

      —what evidence improper to show shipment. In an action against a carrier for failure to deliver a trunk, evidence of a witness that he had investigated the records of defendant and found no entries of the shipment was inadmissible as it did not answer the testimony of the plaintiff or tend to answer it, it appearing that defendant’s negative .evidence referred to other dates than that on which the plaintiff shipped the trunk.
    Appeal from the Superior Court of Cook county; the Hon. Wiixiam E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Rehearing denied January 16, 1915.
    Statement of the Case.
    Action by Ed. V. Price & Company, a corporation, against St. Lonis Southwestern Railway Company, a corporation, to recover the value of a trunk of samples of clothes. It appeared that J. R. Bowman was a traveling salesman for the plaintiff and that he delivered the trunk to defendant for shipment to Chicago, at Onalaska, Arkansas, and that the goods were never received by the plaintiff. A judgment was rendered for the defendant and the plaintiff appealed.
    Gann, Peaks & Townley, for appellant.
    Jeffery & Campbell, for appellee; Herbert J. Campbell, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    John B. DeVoney and Otto Price, Defendants in Error, v. Howard Cooper, Plaintiff in Error.
    Gen. No. 20,216.
    (Not to be reported in full.)
    Abstract of the Decision.
    Landlord and tenant, § 73

      —what agreement does not modify lease. In an action of forcible detainer, evidence that the lessor entere'd into an agreement with the lessee whereby the latter, in consideration of being deprived of part of his premises, was to occupy such premises without paying rent while certain alterations were being made was erroneuosly excluded, since such agreement was not a modification of the lease.
    Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Statement of the Case.
    • Action in forcible detainer by John B. DeVoney and Otto Price against Howard Cooper for the possession of a third floor flat leased to the defendant for a period of two years at a rental payable in monthly instalments of twenty dollars each. At the trial a verdict was rendered in favor of the plaintiffs, a motion for new trial was denied and judgment was rendered on the verdict, whereupon defendant brought error.
    Walter J. Miller and Walter L. Wenger, for plaintiff in error.
    I. B. Perlman, for defendants in error; M. A. Milkewitch, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    George Ehrat, trading as George Ehrat & Company, Plaintiff in Error, v. V. Marrone and R. Lofaro, trading as Marrone & Lofaro, Defendants in Error.
    Gen. No. 20,243.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed January 5, 1915.
    Statement of the Case.
    Suit by George Ehrat, trading as George Ehrat & Company, against V. Marrone and E. Lofaro, trading as Marrone and Lofaro, arid their attorneys, Edward L. England and Elbert C. Ferguson, to restrain the prosecution of a suit in the Municipal Court brought by Marrone and Lofaro against the complainant.
    The complainant alleged that Marrone and Lofaro were insolvent and were nonresidents, and set up a claim against them in excess of the claim of said Marrone and Lofaro. An injunction was recommended by a master in chancery and entered, and the defendants move to dissolve the injunction. Pending a decision on the motion the defendants filed a general and special demurrer to the bill. Such demurrer was sustained, the injunction dissolved and the bill dismissed for want of equity, whereupon the plaintiff brought error.
    Edward J. Kelley, for plaintiff in error.
    John C. Burchard, for defendants in error Elbert C. Ferguson and Edward L. England.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 177 —when bill shows offer to do equity. A bill to restrain the collection of a demand by a suit, alleging that the defendants are nonresidents and are insolvent, is not demurrable on the ground that the complainant does not offer to do equity when such complainant sets up a claim in excess of any amount due the defendants.

2. Injunction, § 177*—when bill not demurrable. A bill to restrain a suit to collect a certain demand, and setting up a claim in excess of that of the- defendants, held not demurrable in failing to allege that the loss sustained by the complainant was due to defendants’ negligence, it appearing that such loss was due to a failure to insure goods as instructed by the complainant when shipped.

3. Injunction, § 174*—who are proper parties. In a suit to restrain certain defendants from prosecuting an action to collect a claim, on the ground that they were nonresidents and insolvent, the attorneys for such defendants were proper parties.

4. Set-one and becoupment, § 1*—when court of equity may cause set-off. A court of equity may under special circumstances, interfere and cause a set-off where a court of law can afford .no relief.

5. Injunction, § 194*—what are requisites of bill. Insolvency is a distinct equitable ground of set-off, and in a bill to enjoin the collection of a debt by nonresidents who are insolvent, setting up a claim in excess of that sought to be collected by such nonresidents, it is not necessary to allege that the individual members of der .fendant firm are insolvent.

6. Injunction, § 194*—when bill for set-off need not show liquidated demand. In a suit to enjoin the prosecution of an action to collect a debt by nonresidents and setting up a claim in excess of that sought to be collected by such nonresidents, it is not necessary that the complainant’s demand should be liquidated by a judgment, when the insolvency of the defendants is admitted.


author: Mr. Presiding Justice Brown

text:
    S. F. Svenson and Harold M. Swensen, Defendants in Error, v. Lucy Roth and Paulina Hockstadter, Plaintiffs in Error.
    Gen. No. 18,566.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 26

      —when transcript' of record insufficient. Where, on a writ of error to the Municipal Court of Chicago, the transcript of the record which was filed in sections, does not disclose the contents of the statement of claim’ and does not contain the matter necessary for the Appellate Court to consider in passing on the merits of the controversy, the finding and judgment of the trial court will not be interfered with.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge,' presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed January 25, 1915.
    Rehearing denied February 8, 1915.
    Statement of the Case.
    Action by S. F. Svenson and Harold M. Swensen against Lucy Both and Paulina Hockstadter to recover balance due on contract for the painting and interior furnishing of a house.
    To reverse a judgment for plaintiffs, defendants prosecute error.
    Henry Roth, for plaintiffs in error.
    Monroe Fulkerson, for defendants in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.