text:
    Fred Miller Brewing Company, Appellant, v. George Jones and Jacob Portz, Jr., Appellees.
    Gen. No. 19,920.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 333

      —when breach of contract not justified. Evidence held to show a breach of contract under which a brewery loaned two persons a sum of money and certain furniture, it being agreed that such persons should sell only the heer manufactured by such brewery, and the breach of such contract was not justified by evidence showing that on two occasions when beer was ordered, someone at the brewery told such persons that they would have to wait for the delivery of their order.

      Appeal from the Circuit Court of Cook .county; the Hon. Jesse A.- Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Statement of the Case.
    A ■ judgment by confession for $1,064.30 against George Jones and Jacob Portz, Jr., in favor of the Fred Miller Brewing Company was entered on a narr. and cognovit. Upon motion by both defendants leave was given to plead to the declaration, the judgment to stand as security, whereupon the defendants filed a plea of general issue. At the trial the jury returned a verdict for the defendants, and judgment being entered the plaintiff appealed.
    ■ Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Arthur C. Marriott, of counsel.
    Coburn & Bentley and William J. Bryant, for appellees.

      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 Smith

delivered the opinion of the court.

2. Evidence, § 173 —when evidence of telephone conversation admissible. Evidence of a telephone conversation with an agent of plaintiff is erroneously admitted where it is not shown who answered the call, that he was known to the witness or recognized as an agent of the plaintiff, or authorized to speak for such plaintiff.

3. Principal and agent, § 225*—who has burden of proving authority of agent. The burden of proof of authority of an agent is on the party dealing with such agent.

4. Principal and agent, § 240*—when evidence of agent admissible to bind principal. Evidence of an agent is not admissible to bind his principal where his authority is not shown.

5. Witnesses, § 209*—what cross-examination improper. Where a witness’ testimony on direct examination was limited solely to identification of signatures on a judgment note, questions asked on cross-examination as to the witness’ duties, were improper.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    John Chrystal, Appellee, v. John S. Level, Appellant.
    Gen. No. 19,926.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    A judgment by confession was entered on a judgment note for fourteen hundred and forty dollars made by John S. Level and David H. Craig payable to John Chrystal. Afterwards the judgment was opened and the defendants given leave to plead, whereupon they filed pleas of. the general issue, failure of consideration and want of consideration. At the trial a judgment was entered for the plaintiff and the defendant Level appealed.
    Abstract of the Decision.
    Burns and notes, § 50

      —when judgment note not void for want or failure of consideration. Where a judgment note was given in settlement of a lawsuit and also in consideration of a balance due on two promissory notes which were surrendered and marked paid, there was a good consideration for the judgment note; and in an action on such judgment note it could not he contended that there was want of consideration or failure of consideration.
    Rankin, Howard & Donnelly, for appellant.
    Charles C. Spencer, for appellee.

      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:
    Elizabeth Morrison, Executrix, et al., v. George I. O’Brien. On appeal of William Sullivan, Appellant, v. Austin State Bank, Appellee.
    Gen. No. 19,941.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanash, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Rehearing denied January 5, 1915.
    Statement of the Case.
    The proceedings, issues and facts in this litigation up to the time of the filing of the bill of review herein are set out fully in Austin State Bank v. Morrison, 133 Ill. App. 339.
    Upon the filing of the bill of review by the Austin State Bank in pursuance of such decision, issues were duly formed and the cause referred to a master. The findings of such master fully sustained the bill of review. And' a decree was entered in favor of the Bank finding that such Bank was the sole owner of the warrants issued to the treasurer of the town of Cicero, that the amount of the warrants had been paid to the receiver, Zimmer, of the firm of J. J. Morrison & Co. & O’Brien, and that the Bank was entitled to recéive from Zimmer the sum of $2,208.50, being the proceeds of the warrants less the receiver’s costs of $760.70, leaving a balance due of $1,447.80.
    Abstract of the Decision.
    1. Appeal and error, § 1236

      —when appellant cannot complain of decree. Where certain complainants abandoned an original bill for an accounting and dissolution of a partnership, and prosecuted their suit for the sole purpose of determining whether a hank was entitled to certain warrants purchased from a third person who had obtained them from a member of the partnership, they could not be heard to claim, as a basis for a reversal of decrees entered on a bill of review, that there was no proof by which the court could determine the share of a member of the partnership in its assets.

      The decree entered on the same day in favor of George I. O’Brien found that the bill of complaint in the original cause should be dismissed for want of equity; that George I. O ’Brien should receive from the receiver the sum of $808.80 and the sum of $534.21, less his share of the receiver’s costs, and that the balance of $798.63 was the amount in the hands of the receiver and represented the interests of George I. O’Brien in the effects of the copartnership firm of J. J. Morrison & Co. & O’Brien. The decree also found that O’Brien’s interest was assigned to J. B. O’Connell and ordered that O’Connell recover the sum of $798.63 from the receiver and $544.38 from the original complainants. Prom such decrees William Sullivan, one of the original complainants, appealed.-
    Edwin C. Crawford, for appellant.
    Castle, Williams, Long & Castle, for appellee.
    F. A. McDonnell, for George I. O ’Brien.

      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 Smith

delivered the opinion of -the court.

2. Appeal and error, § 484 —when master’s report must he objected to. An appellant who makes no objections to a master’s report or exceptions thereto, raising the question of want of proof on an issue presented by the original bill, although ruled to make proof on such bill, cannot raise the question for the first time on appeal.

3. Equity, § 582*—what relief is proper on hill of review. Where decrees entered on a bill of review sought to terminate a receivership of a partnership by dismissal of the original bill under which the receiver was appointed, it was proper and equitable to require proceeds of warrants in the hands of the receiver to be paid to a bank from which the warrants were received, and it was also equitable and proper to decree that money received from a partner be returned to such partner or his assignee, after deducting a share of the expenses of the receiver.

4. Dismissal, nonsuit and discontinuance, § 38*—when hill for partnership accounting will he dismissed. It is equitable and proper to dismiss a bill for partnership accounting where no evidence is offered supporting the bill or where the evidence leaves the matter in such a state that it is impossible for the court to state an account.

5. Equity, § 431*—when exceptions to master’s report are necessary. An appellant who files no exceptions to a master’s report recommending the return of proceeds and moneys is bound thereby.

6. Equity, § 473*—when right of intervenor in action not affected hy original hill. In an action for a partnership accounting, where a bank intervened and claimed to be entitled to proceeds of warrants" purchased from a third person, after such person had obtained such warrants from one of the partners for services rendered, the right of the bank was not affected by the accounting and it was not required to enter upon proofs as to such accounting.

7. Appeal and error, § 493*—when appellant cannot complain of decree. Where the right of a partner to moneys in the hands of a receiver was not questioned by partners seeking a dissolution and accounting, and they abandoned their claim to an accounting from such partner, they could not complain of a decree awarding the money to the partner.


text:
    W. W. Kimball Company, Appellant, v. Samuel Polakow and Virginia Volini, Appellees.
    Gen. No. 19,952.
    1. Chattel moetgages, § 3

      —what is nature of chattel mortgage. The chattel mortgage was unknown to the common law, it being the rule that all sales and pledges of personalty were void unless possession accompanied and went with the title or to the pledgee.
    2. Chattel mortgages, § 1*—how statute is construed. A chattel mortgage is valid only when the requirements of the statute have been strictly complied with, and the statute being in derogation of the common law is to be construed strictly.
    3. Chattel mortgages, § 46*—how mortgage must he acknowledged and recorded. A chattel mortgage not acknowledged and recorded as prescribed by statute is invalid as to third persons.
    4. Chattel mortgages, § 55*-—when acknowledgment does not comply with statute. A chattel mortgage not acknowledged by the owner in person, but acknowledged by his attorney in fact, is not acknowledged in compliance with the statute and is invalid as to a person who claims to own the property as a purchaser.
    Appeal from the Superior Court of Cook county; the Hon. Thomas N. Jett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Abraham Privat and William S. Corbin, for appellant; William S. Corbin, of counsel.
    Simeon Straus and Ira E. Straus, for appellee Virginia Volini.

      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.

This appeal is from a decree of the Superior Court sustaining the demurrer of Virginia Volini, appellee, to the bill of W. W. Kimball Company, appellant, to foreclose a chattel mortgage upon a pipe organ in the building known as the “Douglas Park Auditorium.” The chattel mortgage was made by Samuel Polakow, then the owner of the building. It was signed by him in person, but was not acknowledged by him in person. It was acknowledged by one B. H. Murphy, as attorney in fact for Polakow, under and by virtue of a power of attorney empowering him to acknowledge the mortgage. No other power was given. Copies of the chattel mortgage and power of attorney are attached to the bill as exhibits and made a part thereof.

The bill alleges that Polakow by deed conveyed the real estate, “together with certain furniture and furnishings then in said building to Virginia Volini; and she now claims to be the owner of said pipe organ by virtue of said deed. * * * That Virginia Volini took possession of premises and now holds said pipe organ and claims same to be an appurtenance to said building.”

By these averments of the bill the ownership of the building by appellee is set up by purchase from Polakow under and by virtue -of the deed. The bill does not question the title of appellee to the real estate including the building. It simply asks for a foreclosure of the chattel mortgage. Appellee demurred to the bill and the court sustained the demurrer and dismissed the bill for want of equity.

By the demurrer to the bill, the question of the validity of the chattel mortgage was squarely raised, for all the facts connected with its execution, even to the exact form of acknowledgment, were set forth, leaving no room for construction or intendment.

The contentions of appellant are that the bill shows on its face that it was the intention and agreement of appellant and Polakow that the organ and appurtenances should not be attached to or become a part of the freehold ; that appellee purchased only the real estate, and that the mortgage, if good as between appellant and Polakow, is good as to appellee; that a chattel mortgage being good as between the parties to it without acknowledgment is equally good against all persons who are neither purchasers of the mortgaged chattels nor creditors of the mortgagor, and have no interest in the property; and, lastly, that the acknowledgment of the chattel mortgage by an attorney in fact for the mortgagor was valid.

On the other hand, appellee contends that chattel mortgages were unknown to the common law; that only by virtue of the statute have they any existence, and they exist only when the statutory requirements have been complied with; that the statute does not authorize the execution or acknowledgment of chattel mortgages by anyone but the owner in person, and, hence, the chattel mortgage of appellant is invalid.

The chattel mortgage, as we know it, was unknown to the common law. At the common law all sales and pledges of personal property were void unless possession accompanied and went with the title or to the pledgee. Frank v. Miner, 50 Ill. 444, 447. It is not debatable that a chattel mortgage is a creature of the statute, and that it is valid only when the requirements of the statute have been strictly complied with; and, further, that the statute being in derogation of the common law is to be construed strictly. Porter v. Dement, 35 Ill. 478; Harding v. Thuet, 124 Ill. App. 437, 442; Second Nat. Bank of Monmouth v. Thuet, 124 Ill. App. 501-504. A chattel mortgage not acknowledged and recorded as prescribed by the statute is invalid as to third persons, although it may be effective between the parties to it.

We find no provision in the Chattel Mortgage Act, chapter 95, B. S. (J. & A. fifí 7576 et seq.), authorizing or empowering any attorney in fact to do any of the things required of the owner by the act to make a valid chattel mortgage; nor do we find any authority conferred on the owner to acknowledge a chattel mortgage by his attorney in fact. We hold, therefore, that the mortgage signed by Polakow and not acknowledged by him. in person, but acknowledged by his attorney in fact, was not acknowledged in compliance with the provisions of the statute and is invalid as against appellee, who is charged by the bill as claiming to own the property as a purchaser.

Apparently this question has never before been directly raised. We may, therefore, legitimately support our conclusion thereon by reasoning by analogy from the Statute; of 1833, providing for the recording of town plats, and the construction given the provisions of the act prior to the Statute of 1874, section 2, ch. 109, E. S. (J. & A. ff 8518), entitled “Plats,’:’ which provides that: ‘ The plat having been completed, shall be certified by the surveyor and acknowledged by the owner of the land, or Ms attorney duly authorised in the same manner as deeds,” etc. The words “or by his attorney duly authorized” were added by the law of 1874. The "statute prior to 1874 was silent as to the acknowledgment by an attorney in fact, just as our Chattel Mortgage Act is silent. It was held under the Act of 1833, that an-attorney in fact was not authorized to acknowledge such plats, and that a plat so acknowledged would not vest the legal title of the streets in the corporation. Gosselin v. City of Chicago, 103 Ill. 623; Earll v. City of Chicago, 136 Ill. .277; Thomsen v. McCormick, 136 Ill. 135; City of Mt. Carmel v. Shaw, 155 Ill. 37, 42; City of Alton v. Fishback, 181 Ill. 396; Ryerson v. City of Chicago, 247 Ill. 185.

Acknowledgment of a conveyance, where the acknowledgment is necessary to its validity, has always been held to be a part of the execution. It is a part of the execution of a chattel mortgage. The execution of a mortgage must be one act and cannot be divided. x The decree is affirmed.

Affirmed.


text:
    William E. Mason, Executor, Appellee, v. Susan Kobliska et al., on appeal of James H. Hooper and Ona A. Hooper, Appellants.
    Gen. No. 19,970.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 943

      —when party cannot object to recp/rd. On appeal from a foreclosure decree, a contention that no-' evidence is contained in the record showing a tax sale or deed/on the mortgaged property, warranting foreclosure cannot be sustained where it appears that the appellee was not afforded an opportunity to supply such defect, and where a transcript of additional parts of the record was filed subsequent to the filing of briefs showing the tax sale.

      Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Rehearing denied January 5, 1915.
    Statement of tlie Case.
    Bill for foreclosure by William E. Mason, executor, against Susan Kobliska and others, alleging as a ground for declaring the whole indebtedness due that taxes legally levied were not paid and that the premises were sold for said taxes, and that there had been no redemption from the sale. The usual form of a foreclosure decree was entered upon a master’s report recommending such decree, and James H. Hooper and Ona A. Hooper appealed.
    James H. Hooper, pro se.

    A. G. Dicus, for appellant Ona A. Hooper.
    Charles E. Pope, for appellee.

      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.

2. Mortgages, § 394*—what is sufficient election to declare whole-debt due. The determination of a holder of notes to file a bill for the foreclosure of a trust deed for the entire indebtedness, and the preparation and filing of such bill, is a sufficient election to declare the whole sum due, and to entitle him to maintain the bill.


text:
    Elmer W. Jarnecke, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 19,979.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Elmer W. Jarnecke against the Chicago Consolidated Traction Company for personal injuries. There were four trials of the case, including the trial on review, and there were two appeals prior to the present appeal. See Jarnecke v. Chicago Consolidated Traction Co., 150 Ill. App. 248, 175 Ill. App. 424. In the opinion filed in the second appeal is a general statement of the pleadings and evidence.
    John E. Kehoe and Frank L. Kriete, for appellant; W. W. Gurley and John R. Guilliams, of counsel.
    Emery S. Walker, for appellee.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1734 —when former decision is law of case. A holding on a prior appeal that evidence failed to sustain a charge of negligence is not binding on a subsequent appeal where the evidence is materially different.

2. Master and servant, § 161*—what duties of master cannot he delegated. The duty of inspection of appliances is on the master and cannot be delegated.

3. Master and servant, § 123*—what are duties as to safe place of work. A master is bound to furnish a servant with a safe place in which to work, and noncompliance with this duty is not one of the ordinary risks assumed by the servant

4. Master and servant, § 123*—what is extent of master’s duty as to place of work. The duty of the master to furnish a safe place of work is continuing, and if the place- is. made unsafe by reason of the master’s negligence without the servant’s knowledge, the master is liable for the injury.

5. Master and servant, § 447*-—when servant may rely on care of master. A servant may assume that a master has provided a safe place of work, unless he has notice of the danger or the unsafe condition is obvious, in which case he assumes the risk.

6. Master and servant, § 714*—what is question for jury. In an action for injuries sustained by a servant, the question whether wire on a street car was out of order when such servant took charge of the car was for the jury, the defect not being apparent, and since .the evidence was sufficient to sustain a finding of negligence the. verdict would not be interfered with.

7. Master and servant, § 777*—when instruction not misleading. In an action for personal injuries, an instruction that the jury was not bound to consider the evidence evenly balanced when twp •witnesses contradicted each other, but that the surrounding facts might be considered, was not erroneous as misleading or as invading the province of the jury.

8. Master and servant, § 807*—ivhen instruction as to assumed risk not erroneous. In an action for personal injuries, an instruction that a servant is not bound to inspect appliances but may ■assume that they are safe, and that such servant is- only bound to take notice of such defects as actually come to his knowledge, oj would be disclosed by ordinary care, and- applying such rules to the evidence, was not misleading or inapplicable.

9. Master and servant, § 790*—what facts' may he assumed in instruction. In an action by a servant for personal injuries, where there was no controversy that a defect in a street car existed at the time of the injury, such defect could he assumed to exist in an instruction as a fact.

10. Damages, § 110*—when verdict not excessive. A verdict of five thousand dollars for personal injuries held not excessive, or the result of passion of prejudice, or improper argument of counsel.


text:
    Otto Bergman, Defendant in Error, v. The Empire Tea Company, Plaintiff in Error.
    Gen. No. 20,005.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Animals, § 43

      —when evidence shows negligence in management. Evidence held to warrant a finding that a driver of a horse and wagon was guilty of negligence in placing the horse in a dangerous place, under an elevated railroad track, and taking the bridle bit out of the mouth of the horse and leaving it unhitched and unfettered while he was engaged on some errand at the wagon.

      Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Cdurt • at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action for injuries to a horse and buggy by Otto Bergman against The Empire Tea Company, a corporation. A judgment was rendered in favor of the plaintiff, and the defendant brought error.
    Charles W. Stiefel, for plaintiff in error; John B. Heinemann, of counsel.
    Coburn & Bentley, 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.

2. Animals, § 43*—when evidence sufficient to show cause of injury. Evidence held to show that a collision due to a horse running away was the cause of the loss of another horse which died shortly after such collision.


text:
    Jacob Hartman et al., trading as Hartman Brothers, Defendants in Error, v. Western Cold Storage Company, Plaintiff in Error.
    Gen. No. 20,037.
    1. Trover and conversion, § 31

      -—when demand on public warehouseman sufficient. In an action against a public warehouseman for conversion of property, the demand for the property must be made either by the holder of the receipt or the depositor of the goods, accompanied with an offer to satisfy the warehouseman’s lien, an offer to surrender the receipt properly indorsed, and a readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman. (Hurd’s R. S. 1913, p. 1897, par. 248, sec. 8, J. & A. If 9007.)
    2. Trover and conversion, § 32*—when denial of defense erroneous. In an action against a public warehouseman for conversion of property, the refusal to allow the defendant to file an additional defense setting up its claim for lien, was error when the motion was made before the trial, since, if the plaintiffs were surprised, they could have taken a continuance.
    3. Trover and conversion, § 32*—when defendant has burden of proof. In an action against a public warehouseman for conversion of property, the defendant had the burden of sustaining a defense of a claim for lien.
    4. Trover and conversion, § 47*—when measure of damages not shown. In an action against a public warehouseman for conversion of a carload of onions, there was no competent evidence as to the measure of damages where one witness testified that the onions were worth fifty cents a bushel, but the evidence did not show how many bushels there were, and where another witness testified that there were about five hundred sacks, worth fifty cents a sack, but there was no evidence as to the kind, quality or condition of the onions.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Culver, Andrews & King, for plaintiff in error.
    Samuel F. Knox, for defendants in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

An action was brought by Hartman Brothers, defendants in error, against the Western Cold Storage Company, plaintiff in error, in the Municipal Court of Chicago, to recover the value of a carload of onions.

The record shows the following facts: April 4,1913, there was placed in storage with the plaintiff in error by Peters Brothers a carload of onions, consisting of 504 bags, and a receipt for the onions was issued to Peters Brothers, showing that the onions were held for the account of Peters Brothers by the Western Cold Storage Company. The receipt was marked as nonnegotiable, as required by law.

April 22, 1913, Peters Brothers made a demand in writing on the plaintiff in error signed “Hartman Brothers, by Peters Brothers, Agents,” for the immediate delivery of the onions. The demand was not accompanied by an offer to return the warehouse receipt for cancellation, and the plaintiff in error refused to deliver to Hartman Brothers the onions stored by Peters Brothers, claiming that it had a lien on the onions for moneys due to the plaintiff in error from Peters Brothers, and on the refusal to deliver, the action was brought to recover the value therefor on April 22, 1913. The demand made was not signed by Hartman Brothers or any of the members of that firm, but was signed by Peters Brothers as agents. The action was for conversion of the property, and it was incumbent upon Hartman Brothers to show a proper and legal demand upon the Storage'Company, plaintiff in error, before they could recover. As the defendant was a public warehouseman and the statutes governing its action prescribed what a legal demand should be and contain, and that the demand must be made either by the holder of the receipt or the depositor of the goods accompanied with (1) an offer to satisfy the warehouseman’s lien; (2) an offer to surrender the receipt properly indorsed; and (3) a readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman. Hurd’s B. S. 1913, p. 1987, par. 248, sec. 8 (J. & A. H 9007). The evidence in the case fails to show that any such demand was made and fails to show that at any time the defendants in error offered to return or surrender the warehouse receipt. A warehouseman would not be authorized under the statute to give up the goods until the warehouse receipt is returned and cancelled according to the statute; for, under the provisions of the statute, if the property had been given up without taking up and cancelling the receipt, the warehouseman would be liable to any one who purchased the receipt either before or after the goods had been delivered.

We think the court erred in refusing to allow the plaintiff in error to file an- additional defense setting up its claim for a lien upon its motion to that effect. The motion was made before the trial was entered upon and should have been allowed. If the plaintiffs were surprised, they could have taken a continuance to investigate the same. It was an affirmative defense and the burden was upon the plaintiff in error to sustain the same, and in furtherance of justice the motion should have been allowed.

No competent evidence was offered in the cause as to the proper measuré of damages. While the evidence of Hartman was that onions were worth fifty cents a bushel, the evidence in the record does not show how many bushels .there were' in this lot of onions, and it would, therefore, be impossible to arrive at the amount of the judgment which was rendered in this case. The evidence of Peters was that they were worth fifty cents a sack and that there were about 500 sacks. There was no evidence as to the kind, quality or condition of the onions. It does not appear that either of the witnesses knew the condition or quality of the property.

The judgment is reversed.

Reversed and remanded.


text:
    Abraham Madenberg, Defendant in Error, v. Solomon Ritman and L. Feldman, Plaintiffs in Error.
    Gen. No. 20,070.
    (Not to be reported in full.)
    Error to the' Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Abraham Madenberg against Solomon Ritman and L. Feldman, a partnership, for forty-five dollars claimed to be a balance due on account of wages. A judgment being rendered in favor of the plaintiff, defendants brought error.
    Samuel Micon, for plaintiffs in error.
    Victor L. Huszagh, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 968

      —when record is insufficient. On appeal from a judgment for a balance due on account of wages, the statement of facts is insufficient when it does not show all the evidence before the trial court, the record showing evidence of a book of entries which are not contained in the statement of facts.
    2. Appeal and error, § 1772*—when judgment mil he reversed. A judgment of the trial court will not be reversed, unless it is contrary to the law and the evidence, or unless the judgment resulted from errors in the trial court directly affecting matters in issue between the parties.

      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:
    Charles H. Brown Paint Company, Defendant in Error, v. C. A. Erickson & Brothers, Plaintif in Error.
    Gen. No. 20,112.
    (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.
    Affirmed.
    Opinion filed December 22, 1914.
    Rehearing denied January 5, 1915.
    Statement of the Case.
    Action for merchandise sold and delivered by-Charles H. Brown Paint Company, a corporation, against C. A. Erickson & Brothers, a corporation. The affidavit of plaintiff showed a claim for $50.45, and defendant’s affidavit of merits stated that the claim was paid except a balance of $7.95, and that some of the material delivered was unfit for use, whereby the defendant sustained damages. From a judgment for the plaintiff, defendant brought error.

      Abstract of the Decision.
    1. Principal and agent, § 131

      —when payment to agent does not bind principal. Evidence of payments to an agent is inadmissible where the agent’s authority to receive payments is not shown.
    2. Sales, § 401*-—when damages for breach of warranty are not shown. In an action for goods sold and delivered, where no actual damages are shown by reason of defective and unfit material, such defense is not established.
    John E. Erickson, for plaintiff in error.
    Baker & Holder, for defendant in error; W. W. Hoover, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    H. D. Kellogg, Defendant in Error, v. Interstate Independent Telephone & Telegraph Company, Plaintiff in Error.
    Gen. No. 20,140.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobeison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by H. D. Kellogg against Interstate Independent Telephone & Telegraph Company, a corporation, on four coupons issued by defendant in accordance with the provisions of a deed of trust or mortgage given to secure the same.
    A motion to strike defendant’s affidavit of merits was granted, and when the defendant elected to stand by its affidavit an order of default was entered, and after hearing evidence the damages were assessed at one hundred dollars, and judgment was entered therefor. To reverse such judgment, defendant brought error.
    Abstract of the Decision.
    1. Mortgages, § 390

      -—when action on coupons may he maintained. In an action on coupons issued in accordance with a deed of trust or mortgage, where the statement of claim for the plaintiff was filed on two coupons, and the defendant filed an affidavit of merits that the trust deed prohibited proceedings by bondholders independently of the trustee, and the plaintiff moved to strike the affidavit of merits from the files, and pending a decision of the motion filed an amended statement of claim covering two additional coupons, whereupon the motion to strike was granted, and defendant electing to stand by its affidavit damages were assessed on default, there was no reversible error in the proceedings.
    . 2. Mortgages, § 407*—what defenses are available in action on coupons. In an action on coupons issued in accordance with a deed of trust or mortgage, an affidavit of merits setting up the defense that the trust deed prohibits proceedings by bondholders independently of the trustee is properly stricken.
    Fred A. Dolph and William H. Gallagher, for plaintiff in error.
    Cavender, Kaiser & Wermuth, 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:
    Michael P. Gauer v. Edward C. Voltz et al. Joseph F. Jene, Appellant, v. George Victor Haering, Appellee.
    Gen. No. 21,063.
    (Not to he reported in full.)
    - Interlocutory appeal from the Superior Court of Cook county; the'-Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Bill by Michael P. Gauer to foreclose a trust deed which was .first lien on certain premises, George Victor Haering being a defendant to the original bill. Joseph' P. Jené purchased the equity of redemption after the bill was filed and became a party to the suit later. Other parties to the original bill were unknown owners of a third mortgage note and various persons who at one time or another had owned the equity of redemption or who had an interest therein when the bill was filed.
    The case was referred to a master, and on his report a decree was entered directing sale. The property was then sold to the first mortgagee for the amount of his claim. After the sale of the second mortgagee, Haering, filed a “cross-bill,” praying for a receiver and that -rents and profits be applied to pay the second mortgage, as provided by such mortgage. . Jené then filed a petition setting up ownership of the equity of redemption and his right to the rents and profits. He was permitted to intervene and plead and demurred to the so-called cross-bill. From an order appointing the receiver as prayed, Jené appealed.
    Laird Bell, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Receivers, § 10

      —when pleading is mere petition for receiver. A pleading filed by a second mortgagee for the appointment of a receiver and for rents and profits, after the sale of the premises under a foreclosure decree of a first mortgage, which does not ask for an accounting or foreclosure, is a mere motion paper or petition.
    2. Receivers, § 10*—what muet he shown to warrant appointment of receiver. A receiver will not be appointed upon a mere petition, since a receivership must be ancillary to some other relief, and there must be some' pleading upon which the petitioner will probably be entitled to specific equitable relief.

      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.


author: Mr. Presiding Justice

text:
    Frank J. Burns et al., Appellees, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,824.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed.
    Opinion filed April 15, 1914.
    Rehearing denied October 7, 1914.
    Statement of the Case.
    Petition "by Frank J. Burns and others against the Illinois Central Railroad Company to enforce an attorney’s lien. One Joe Lococo and his uncle employed petitioners to prosecute a claim against the defendant for personal injuries sustained by Lococo, and after a disagreement between the petitioners and the uncle the petitioners ceased to act and the matter was placed in the hands of another. The petitioners notified defendant by letter that they would expect a reasonable compensation in case of settlement. Thereafter the defendant settled with' Lococo but. his uncle procured another attorney to start suit. In the suit Lococo recovered a verdict for six thousand dollars, which was paid. Petitioners then filed the above mentioned petition for an attorney’s lien and a decree was entered in their favor for two hundred dollars, fo reverse the decree, defendant appeals.
    Abstract of the Decision.
    1. ' Appeal and error, § 1002

      —when sufficiency of evidence t.g show party was not an attorney not preserved for, review. On ap: peál from a decree awarding an attorney’s lien, defendants cannot raise the question that there was no proof to show that one of the petitioners was an attorney where such issue was not raised by answer to the petition.
    2. Infants, § 21*—right to contract for. attorney’s, serv.ic.es., .Attorney’s services are necessaries for which a minor,' or his next friend, may make a binding agreement to pay a reasonable compensation.
    > 3. Attorney and client, § 53*—evidence sufficient to show employment hy minor. Evidence held sufficient to show the employment of attorneys by a minor, wherb the minor lived at his uncle’s house- and-the uncle engaged the attorneys, and afterwards one óf the attorneys' had several conversations with the minor and his uncle' at the latter’s house.
    4. Attorney and client, § 146*—sufficiency of notice for lien. Service of a notice for an attorney’s lien by mail is insufficient, since personal service of notice is required.
    A former appeal was before the Supreme Court, on the ground that, a constitutional question was involved, in Burns v. Illinois Cent. R. Co., 258 Ill. 302.
    Hunter & Schneider, for appellant; John G. Drennan, of counsel.
    Frank J. Burns, for appellees.

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

   Mr. Presiding Justice

Whitney delivered the-opinion of the court.


author: Mr. Presiding Justice Carnes

text:
    Elizabeth Severy (nee McDougall) and Ernest Severy, Defendants in Error, v. Charles G. McDougall et al., Plaintiffs in Error.
    Gen. No. 5,830.
    1. Appeal and ebbob, § 395

      —when objections to master’s report not saved. A party will not be heard on review to make objections to the master’s report which he did not bring to the attention of the trial court.
    2. Interest, § 43*—when only legal rate may be charged. As against their cotenants, tenants'in common with entire charge and control of the premises, receiving the rents and profits, are entitled to only legal interest on amounts paid by them to discharge incumbrances.
    3. Partition, § 72*—allowance for improvements. In an action for partition and an accounting, a decree allowing defendants for certain improvements placed on the land by them on the basis of cost thereof rather than on the basis of the difference in the market value of the land because of such improvements, held not erroneous where there was no sufficient evidence as to the market value of the land with and without the improvements, and the allowance appeared to be equitable.
    4. Partition, § 136*—when order of proceedings cannot be complained of on review. The fact that a decree of partition was entered and proceedings had thereunder before the decree for an accounting and proceedings thereunder, by which the interest of the parties in the improvements would be ascertained, cannot be complained of where such order of proceeding was expressly consented to by the party complaining.
    5. Appeal and ebbob, § 831*—term at which bill of exceptions must be talcen. In cases at law the bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose; and this applies whether the ruling excepted to is a final and appealable order or not.
    6. Appeal and ebbob, § 862*—certificate of evidence. The rule that in cases at law bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose, properly applies to the filing of a certificate of evidence.
    7. Appeal and error, § 86*—when motion for leave to file certificate of evidence properly denied. Denial of motion to grant leave and to extend the time to present a certificate of evidence, held properly denied where there is no means of preparing such certificate except to trust to the memory of some person that heard the evidence.
    8. Partition, § 69

      —scope of accounting. In an action between heirs for a partition and an accounting, the complainant is not entitled to a credit for money loaned to defendants.
    Dibell, J., took no part in this decision.
    Error to the Circuit Court of Iroquois county; the Hon. Prank L. Hooper and Hon. Dorrance Dibell, Judges, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Rehearing denied October 22, 1914.
    O. F. Morgan, Morris & Morris and Holdom, Manierre & Pratt, for plaintiffs in error.
    A. F. Goodyear and Ernest Severy, for defendants in error.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

John McDougall died intestate June 9, 1877, the owner of eighty acres of farm land, his homestead, incumbered by a mortgage debt of $1,600 bearing ten per cent, interest. He left surviving his widow, Mary McDougall, and their five children, three girls and two hoys, viz.: Elizabeth, Emma, Margaret and William J. and Charles G. There were some small debts and some personal property. There was no administration of his personal estate, and neither homestead nor dower was set off to the widow.

The family lived in the house on this land until about 1881, when .the daughter Emma married and ceased to reside in the family, and the daughter Margaret died intestate leaving as her only heirs her mother and brothers and sisters. The daughter Elizabeth taught school for several years but made her home with the family until 1888, when she was married. In 1890 the two sons and the mother removed from the premises. The mother died October 2, 1908, intestate, leaving her said surviving children as her only heirs. September 30, 1909, the daughter Emma, her husband joining, "conveyed to the three surviving children, Elizabeth, William and Charles, her title in the land, and assigned to them her interest in the rents and profits past, present and future. October 7, 1909, the daughter Elizabeth (Severy) filed this bill for partition making defendants her brothers William and Charles, and asking also for an accounting as to the payment of the mortgage debt and of the rents, profits, taxes and improvements, alleging that she had contributed to the payment of said items or some of them. There were other parties to the suit not necessary to mention here. Numerous pleadings were filed including a cross-bill by William and Charles, but we will hereinafter designate the complainant in the original bill, defendant in error here, as complainant, and William and Charles McDougall as defendants.

June 21, 1910, a decree of partition was entered, on the pleadings without proof, finding the title to the premises in Elizabeth, Charles and William, each an undivided third; and by consent of the parties all questions concerning the accounting were by that decree reserved to be heard at some future time, and determined with the same force and effect as though included in the partition decree. November 8, 1910, the commissioners reported the premises not susceptible of division and reported their value at $12,000. The report was approved by the court without objection, and January 14, 1911, "William and Charles purchased the land for $12,400 at the master’s sale, and in due course received a deed therefor. Meantime, on August 6,1910, the court entered a decree as to the accounting, on the pleadings and proof taken in open court, in which decree the court finds the issues for the complainant on the question of an accounting; finds the facts as to surviving widow and heirs, the residence of the family and the conveyance by the daughter Emma as above stated; finds that there has been rents and profits of the land and that William and Charles have received them all since the death of their father; that complainant has paid to William and Charles certain sums of money which she alleged was paid to contribute to the discharge of said mortgage and the expenses of the family; that William and Charles have paid taxes and for repairs, and claim to have paid certain sums for improvements; that the premises exceeded $1,000 in value at the time of the death of the father; that dower and homestead were never assigned; that William and Charles should account to the complainant, Elizabeth, for the rents, profits and use and benefits of said premises from the date of the death of their father to the time of taking of the account; that Elizabeth is entitled to four-fifteenths from June 9, 1877 to January 10, 1881, and to twenty-eight-ninetieths from January 10, 1881 to October 2, 1908, and to one-third from October 2, 1908 to the time of taking said account, subject to proper deductions for rents and profits, to which the widow is entitled on account of her estate of homestead, to the value of $1,000.

The court further finds that the defendants camiot he called upon to account, in this proceeding, for any personal property received which their father owned at the time of his death, and are not entitled to credit, in this accounting, for any of his debts which they have paid, except the mortgage indebtedness of $1,600, for the reason that such matters are not germane to the issues. And further finds that the complainant is not entitled to an accounting for any money loaned by her to the defendants and which was not applied by defendants to payment of said mortgage indebtedness, taxes, insurance or other expenditures for ordinary repairs upon said land for which an accounting has been allowed.

An order of reference to the master for an accounting in accordance with the above findings followed, directing the parties to produce before him evidence in relation thereto, and directing the master to credit the defendants with the proportionate share of the complainant, of moneys expended for ordinary and reasonable repairs necessary for the preservation and use of the property,—the costs of such repairs; and to credit them with such share of improvements, if any, constructed out of their own funds, on the basis of the-market value of the premises at the time of the sale without and with those improvements, provided if any such improvements were authorized by complainant, then the cost thereof shall be taken into account. There were other directions in the decree as to credits for payment by defendants of the mortgage indebtedness and other matters that will be hereafter mentioned, so far as they are questioned in the briefs.

The master proceeded to hear the parties on the accounting and, while he was so doing, William Mc-Dougall died testate February 4,1911. By appropriate proceedings of record his brother Charles, as executor of his will, was substituted in his stead as a party to this action, and three minor children, alleged to be beneficiaries named in the will, were brought into court and a guardian ad litem appointed for them, who answered and actively represented them thereafter. We do not find from the abstract of record what interest these minors received under the will.

The master stated the account and prepared his report-finding rents and profits received and disbursements made by defendants, which he filed, with the evidence taken by him, January 20, 1912, making extended tabulated statements as to the matters dealt with and concluding with the summary:

“Amount rent, issues and profits due com-
plainant ............................$4,980.25
Amount interest, taxes, mortgage, repairs,
improvements, etc., due defendants from'
complainant......................... 3,134.93
Balance due complainant from defendants. $1,845.32”

Before filing Ms report the master submitted it to the parties, and Charles Gf. McDougall in his own right, and as executor of the estate of his brother, presented twelve objections which the guardian ad litem copied and also presented in behalf of the minors. The master heard and overruled these objections. They were allowed to stand as exceptions, and so far, at least, as the adults are concerned presented the questions of fact, and the only questions of fact, that the court was required to pass upon in reviewing the master’s report.

In stating the account the master, as directed in the decree, divided the time into periods, found the value of the land at those different times and deducted $1,000, the homestead estate value, from the value of the land to ascertain the balance on which the heirs were entitled to rentals. The first five objections are each solely on the ground that the fair value of the land during those five periods was not so much as found by the master, but was $1,200, $1,400, $1,500, $1,600 and $1,800 respectively, and that deducting the $1,000 estate of homestead the master’s finding of yearly rentals was because of his overvaluation of the land excessive. The sixth objection charges erroneous computation of interest. The seventh charges that defendants are entitled to an allowance against the complainant for a full third of the amount of all payments made by the defendants on the mortgage debt and for repairs. (The master had allowed credits in proportion to the ownership in the land at the time the payments were made.) The eighth objects that the master did not act on that provision of the decree providing for valuing improvements made by defendants on the basis of increased value of the land. The ninth objects that the master did not charge complainant a full third of moneys paid for taxes and insurance. The tenth is a general objection that the report is vague, insufficient and incomplete. The eleventh charges that the master combined statements of improvements and repairs so that it is impossible to separate them and ascertain what the premises were worth with and without the improvements. The twelfth objection is general, that the amount found due is unjust and not warranted. The trial court on a hearing overruled the exceptions and entered a decree March 25, 1912, as recommended by the master, computing the interest on the amount found due from the defendants to the time of entering the decree.. The defendant Charles Mc-Dougall, in his own right and as executor, sued out a writ of error in the Supreme Court. There being no freehold involved the cause was transferred to this court. Severy v. McDougall, 259 Ill. 272. Defendants employed other counsel and by leave of this court additional briefs have been filed in which alleged errors of the trial court in affirming the master’s report are argued without much reference to the questions presented by the objections and exceptions to that report. It is hardly necessary to cite authorities that a party will not be heard on review to make objections to the master’s report which he did not bring to the attention of the trial court. Singer, Nimick & Co. v. Steel, 125 Ill. 426; and Barney v. Board Comr’s of Lincoln Park, 203 Ill. 397, are among the cases so holding.

The issues presented by objections and exceptions were: First. That the master at the different periods of years in which he stated the account of the rents chargeable to the defendants should have placed a lower value than he did on the land and should have deducted the $1,000 homestead estate value from that in getting a proportion of the entire rents to be charged to the defendants. We are of the opinion that the evidence sustains the master’s valuation. The next objection, that the master erred in computing interest on the basis assumed by him, we assume means only an error in figures. No complaint of any such error is made here. It is urged here that interest at ten per cent, should have been computed on the mortgage debt paid by the defendants. The decree did not so provide and we are of the opinion that they, as tenants in common, with entire charge and control of the premises, receiving the rents and profits thereof, were only entitled to legal interest on amounts so paid by them. The other objections all go to the supposed errors of the master in not charging the complainant a full one-third part of the aggregate amount found by the master to have been expended by defendants in repairs, improvements, etc., and in disregarding the directions in the decree as to difference in market value in the premises with and without improvements. We see no error in the master’s method of computation. After the father’s death complainant owned one-fifth of the land subject to the homestead right of her mother; afterwards, on the death of her sister, she owned a larger fraction; afterwards her mother died and her fractional interest was freed from the homestead deduction of $1,000; and then, just before this suit was begun, the interest of the other sister, not only in the land but also in the result of the accounting, was acquired by complainant and defendants (one-third each). We see no error in charging and crediting during each period according to the interest owned by the respective parties at the time. It is true that the master, had the proof required it, should have allowed defendants for certain improvements on the basis of the difference in the market value of the land because of such improvements, and the objections cover that question; but we are of the opinion that the master did not have before him any evidence on which he could intelligently base such an estimate, and that he therefore did not err in basing the account on the cost of improvements. There was a drainage ditch constructed in the neighborhood during the period in question. These lands were within the drainage district and no doubt much appreciated in market value by reason of the drainage improvement making it practical to drain the land, and improving the neighborhood in which it was located. There was some evidence that the lands were nearly valueless without the improvements and very valuable with them; but it is all based- on a theory that would make a building lot in a city of no value whatever before a building was placed upon it, on the ground that it was earning nothing. In such case, in the absence of any reasonable, reliable evidence as to the market value with and without improvements, justice is more nearly reached by allowing the tenant in common who erects a building, what he expended in so doing, and the master attempted to proceed on that plan. The defendants refused to state any account, and conclusions were reached in some instances without the most satisfactory basis, but we do not find that the master could reach a more satisfactory or equitable result on a rehearing.

Counsel in their argument state as objections to the master’s report:

1. That it was error to allow complainant full rental without some deduction on account of the occupation by the complainant and her sister of the premises for a time.

2. That it was error for the master to charge the defendants rental on the basis of value thereof because there was no showing that defendants excluded the complainant from joint occupation of the premises with them, and under such circumstances only rentals actually received can be recovered.

3. Under circumstances last mentioned it was error for the master to charge defendants with interest on the rents.

4. The court erred in refusing to permit the defendants to set off against the rent the expenses in conneotion with the care and maintenance of the mother of the parties. This objection goes also to the decree for accounting.

5. The master’s report is based in part on testimony of complainant as to her consenting to improvements and other matters not in denial of the testimony of the deceased defendant. It is not pointed out and we do not discover where any of these matters were brought to the attention of the trial court. It is also objected that the master in crediting the defendants with improvements, repairs, etc., deducted from the entire value of -the estate $1,000 as the homestead value, and that the widow’s homestead estate was not of the value of $1,000 but should have been ascertained by computing the value of her life estate in $1,000. Nothing was specifically charged to the homestead estate in the accounting. The defendants were relieved by the method pursued from accounting to complainant for profits derived year by year from that fractional part of the estate.represented by $1,000. It was fair, so far as we can see, to charge them on the same basis for taxes, repairs and other current expenses; but in so far as they fail to receive credit for any permanent improvement by reason of deducting $1,000 instead of some smaller sum as the value of the homestead that should contribute to the improvement, there may have been error. It is difficult to tell with any degree of certainty what would be the result of a recomputation treating the homestead, in so far as it should contribute to permanent improvements,' of less value than $1,000; and we do not find that this question was brought to the attention of the trial court. In the objections and exceptions filed the only reference to the value of the homestead is in the statement that it should have been taken by the master as $1,000 in the computation referred to in the objections.

It is urged that the matter did not allow defendants credit for improvements resulting from their labor on the premises, but confined their allowance to expenditures of money made by them for that purpose. The account as stated did make some allowance to the defendants for their labor in making improvements, and even if the master erred in that respect neither his attention nor the attention of the court was called to the matter by objection or exception.

It is suggested that it is the duty of a court of chancery to protect the rights of infants in suits there pending, and we are not unmindful of the law that imposes that duty on the court. It is true that the court should see that the guardian ad litem performs his duty and that no substantial interest of minors should be lost by the guardian’s failure to do so. The rule no doubt is that the court on its own motion will protect the rights of infants where they are manifestly entitled to some relief, although their guardian ad litem may neglect to claim it in their behalf. Mason v. Truitt, 257 Ill. 18. But in this case we do not know what the interest of the infants was; we simply know that they are beneficiaries named in the will of one of the defendants who died pending the accounting in this case; they may be entitled to the entire interest of the testator in the property in suit here, or it may all be required to pay his debts; the title may have been devised to them or to the executor in trust for them. Whatever their rights are they are of the same nature as those of Charles G-. McDougall personally, and he, with his personal interest as an individual coinciding with his interest as executor, appeared by counsel and acted for the infants. The court also appointed a guardian ad litem and allowed him a fee. We assume he was a competent lawyer. It hardly seems reasonable, with the property of an infant so represented and so protected, that a chancellor should be charged with a duty to investigate an extended report of his master, covering, many years and many items, for errors that could not be discovered and pointed out by the solicitors of the defendants or the guardian ad litem. Yet, if some error of a substantial nature did so occur that would result in sacrificing the interest of the minors, it is probably our duty to reverse and remand the case, to the end that the infants’ interests may be protected. We have examined this record with the view to determine, not only whether the chancellor erred in passing on matters presented to him, but also to ascertain if in the matter of the accounting there was such substantial error as should require this court to remand the case to protect the interests of the infant defendants, and we are of the opinion that substantial justice has been done in the accounting and that it is not in their interest that the cost and expense of another trial be incurred.

The principal objection urged to the decree'for partition is that it was entered on the pleadings, and under the allegations on which it is based it should have provided that the part of the premises on which defiendants had made improvements be set off to them, that they might in that way receive the benefit of their improvements in case of actual partition of the land. The decree did provide that the interests of the defendants might be set off to them jointly, so that had the commissioners found it practicable they could have set off to the defendants two-thirds of the land and to the complainant one-third. They reported that they could not so divide it, and we judge from the record that the land was incapable of actual division on any reasonable theory of the case. It is also said it was error to enter the decree of partition and proceed thereunder before the decree for accounting and proceedings thereunder, by which the interests of the parties in the improvements would be ascertained. The order of proceeding complained of did render it difficult, if not impossible, to make any proper decree of partition that should take into account the improvements, in directions as to the division of the land. But this order of proceeding was expressly consented to by the defendants in their agreeing to defer the matter of accounting for a future hearing and decree. They did not object to the report of commissioners, and acquiesced in the decree of sale entered thereon and purchased the premises at the sale made thereunder. We do not regard them as now entitled to question the decree in that respect, and do not see that they have been in anyway harmed by the omission of such provision in the decree.

As to the decree on accounting: Nearly two years after it was rendered, and after the master had taken and stated an account in accordance with its terms, and the court had entered its decree based on that account, but at the same term at which the last mentioned decree was entered, the defendant Charles G-. Mc-Dougall, in his own right and as executor, on June 8, 1912, moved the court for an order granting leave, and extending the time to July 1, 1912, to present a certificate of evidence on which the decree on accounting was entered. This motion was denied, and that action of the court is urged as substantial error. The decree overruling exceptions to the master’s report and ordering distribution in accordance therewith was rendered by a different judge of the circuit from the one that entered the decree on accounting. It seems unreasonable and unjust that defendants should apparently acquiesce in the decree on accounting, and the principles there announced, and participate in all proceedings thereunder until a final result was reached on computations based on the directions of that decree to the master, and then for the first time raise the question whether the evidence heard by the court, in the proceedings resulting in that decree, supported the findings of fact incorporated therein. It is familiar doctrine that in cases at law the bill of exceptions must be taken at the term at which the rulings excepted to were made, or within such time as the court may at that term have granted for that purpose; and this applies whether the ruling excepted to is a final and appealable order or not. Village of Franklin Park v. Franklin, 228 Ill. 591; Finch & Co. v. Zenith Furnace Co., 245 Ill. 586; People v. Strauch, 247 Ill. 220. No reason occurs to us why this rule should not apply to the filing of a certificate of evidence; but, be that as it may, it does not appear that any certificate of evidence was prepared or offered, or that the evidence was taken in shorthand. It may be that the court in denying this motion knew that there was no means of preparing a certificate of evidence except to trust to the memory of some person that heard it, and that he could not pass on such certificate aided by anything but his personal recollection as to what occurred at a prior term. If such was the condition of affairs the motion was properly denied.- Saratoga European Hotel & Restaurant Co. v. Mossler, 76 Ill. App. 688, and authorities there cited. Presumptions must be indulged in favor of rather than against the action of the court. We are also inclined to hold, under the authority of DeGrasse v. Gossard Co., 236 Ill. 73, and the cases there cited and reviewed, that the decree was final in the sense that an appeal might have been then taken; and it is only on the claim that it was not, that counsel urge error in refusing leave to file a certificate of evidence.

Having determined that the court did not err in refusing leave to file a certificate of evidence, the findings of fact in the decree on accounting cannot be questioned, as indeed they could not now be questioned here if the court had erred in so ruling. The only relief we could give would be to remand the case that an effort might be made to get a certificate of evidence in the record that would enable some court in the future to determine whether the findings were warranted. The findings in the decree are conclusive on many of the questions argued here, as, for instance, the right of the defendants to credit for support of their mother. That was an issue presented by the pleadings, as well as an issue whether there was an agreement between the defendants and the other interested parties that they should not be charged rent in consideration of their keeping up a home for the family. Failing to get a provision in the decree in their favor on these questions, it is to be assumed no evidence was furnished to support their contentions as to those matters.

The defendant in error has assigned cross-errors: That the court erred in not allowing her credit for the payment of a part of the mortgage incumbrance; in not allowing her credit for money paid to the defendants ; that the court erred in fixing rental values and costs of improvements. The master did not allow her credit for moneys of hers that went into the defendants’ hands, on the theory that it was a loan and could not be taken into account in this proceeding. The evidence warranted that conclusion, and we are not disposed to disturb the findings of the master as to the other items in question. It was the somewhat familiar case of the death of the father owning a little personal property and a small farm and owning a considerable debt. The family all took hold together to earn a living and pay off the debts, with no account kept of the amount each contributed to that purpose. The mother kept house when she was able and when she was not she was aided by other members of the family. The boys did their best on the farm, and in this case they prospered exceedingly, paid the debts, improved the land, made money and the brothers purchased other lands for themselves. In such a case it is impossible to arrive at accurate results. No two competent masters in chancery would place the same valuation on each of the numerous items that they were required to find from the evidence. The master in this case may have got some items too high and some too low, but we are satisfied that he has reached as accurate a result and as equitable a conclusion as is possible in such a case.

The decrees are affirmed.

Affirmed.

Me. Justice Dibell took no part in this decision.


text:
    Patrick J. Ryan et al., Appellees, v. Michael C. Hayes, Appellant.
    Gen. No. 5,851.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Rehearing denied October 8, 1914.

      Certiorari denied by Supreme Court • (making, opinion final).
    Statement of the Case.
    Bill by Patrick J. Ryan and Catherine Bums, as administratrix of the estate of J. Prank Tyrrell, deceased, against Michael C. Hayes and others to foreclose a trust deed which on its face secured a note for $6,000 and two notes for $12,500 each. The bill alleged that the $6,000 note was the property of plaintiffs and that the two other notes were the property of other party defendants. Defendant Hayes answered admitting the execution of the notes and trust deed but denying any present indebtedness therein, and averring that there was no consideration for said notes except $3,000 received by him on said $6,000 note. He filed a cross-bill alleging usury and fraud. Issues were presented by the pleadings and the cause submitted to a master in chancery. The master made a report recommending a decree dismissing the cross-bill and granting the relief prayed in the original bill. From a decree entered on the finding with certain modifications, defendant Hayes appeals.

      Abstract of the Decision.
    1. Judgment, § 471

      —when not res adjudícala as between co-parties. A decree In a former suit is not res adjudicata as between codefendants where under the pleadings in such suit such rights could not be finally adjudicated.
    2. Attorney and client, § 91*—application of law protecting client in dealings with attorney. The law protecting a client in his dealings with his attorneys concerning property which is the subject-matter of the litigation has much less application to cases in which the questions are not concerning matters in which the attorneys have superior knowledge and in which the client naturally trusts his lawyers, but are concerning business propositions of which the client knows more than his attorneys and in which he would naturally exercise his own judgment.
    3. Attorney and client, § 92*—when contract with client as to attorneys' fees are unfair. Evidence held sufficient to sustain a finding that attorneys in dealing with their client acted in good faith in contracting for attorneys’ fees which appeared excessive for the services performed,' it appearing that the compensation was not to be payable in money but of property of doubtful value.
    4. Appeal and error, § 1512*—when irregular acts of court harmless. Action of chancellor after overruling exceptions to the master’s report in changing on his own motion, some of the findings and striking out some of the allegations in the pleadings, held irregular but not prejudicial.
    Whitney, J., took no part in this decision.
    Alanson C. Noble and Quin O’Brien, for appellant.
    Philip S. Brown, William F. Weiss and George W. Field, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


author: Me. Presiding Justice Carnes

text:
    Bettie D. Kelly, Appellant, v. Stary M. Hakes, Appellee.
    Gen. No. 5,922.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Replevin, § 124

      —sufficiency of evidence. In replevin to recover possession of a mare and two colts, evidence held sufficient to sustain a finding that each of the parties owned a half interest in the colts.
    Appeal from the County Court of Woodford county; the Hon. Arthur C. Fort, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed with finding of facts.
    Opinion filed July 31, 1914.
    Rehearing denied October 8, 1914.
    Statement of the Case.
    Beplevin by Bettie D. Kelly against Stary M. Hakes to recover possession of a mare and two colts. Upon a trial without a jury the court found that plaintiff was entitled to possession of the mare and the defendant entitled to the possession of the colts. The court entered judgment on the findings apportioning the costs between plaintiff and defendant and ordered a writ of retorno hdbendo for the "return of the colts. To reverse the judgment, plaintiff appeals, and the defendant assigns cross-errors that the court erred in awarding possession of the mare to plaintiff and in apportioning the costs, and in taxing any costs against defendant.
    James L. Hicks, for appellant.
    Orman Ridgely, for appellee.

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

   Me. Presiding Justice Carnes

delivered the opinion of the court.

2. Replevin, § 17*—right of action as between tenants in common. A part owner of a chattel cannot maintain replevin therefor as against his co-owner in possession.

3. Replevin, § 163*-—costs. The general rule that the prevailing party is entitled to costs is not applicable in replevin cases where the plaintiff fails to recover all the property replevied.

4. Appeal and error, § 1032*—questions not raised for review. The manner of apportioning costs is not presented for review where the only argument on appeal goes to the right to make an apportionment.


author: Mr. Justice Dibell

text:
    Henry A. Klein, Appellee, v. Fred C. Stubbe, Appellant.
    Gen. No. 5,916.
    1. Chattel mortgages, § 7

      —transactions in nature of. If a bill of sale and contract are in the nature of a chattel mortgage they will be so considered.
    2. Evidence, § 339*—when parol evidence rule inapplicable. The rule excluding parol evidence to vary a written instrument has no application where a stranger to the instrument seeks to show that it does not express the full and true character of a transaction; and where a stranger is thus free to vary or contradict a written instrument, his adversary, although a party to it, is free to do likewise.
    3. Chattel mortgages, § 202*—when mortgagee not liable for debts of mortgagor. Where a chattel mortgagee, holding a bill of sale and contract in the nature of a mortgage, takes over a mortgagor’s property and business, he does not become liable for the mortgagor’s debts, although the mortgage may have been ineffective, because of lack of possession, as against a judgment creditor of the mortgagor.
    Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed with finding of facts.
    Opinion filed July 31, 1914.
    Rehearing denied October 8, 1914.
    J. J. Ludens, for appellant.
    Charles H. Woodburn, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On September 26, 1912, an agent of Henry A. Klein sold a quantity of liquor to John Mammen, who was at that time conducting a saloon at No. 113 East Third street, in the city of Sterling, Illinois. Part of this liquor consisted of a barrel of whisky, which was to be paid for in in four months. When the agent called to collect for the whisky at the expiration of the period of four months, Fred C. Stubbe was running the saloon, and upon Stubbe’s refusal to pay for the whisky, Klein brought suit against him therefor before a justice of the peace and recovered a judgment, from which Stubbe appealed to the City Court of Sterling. There the cause was tried without a jury and Klein again had judgment against Stubbe, from which defendant below appeals.

It appears from the evidence that in August, 1912, prior to the sale of this whisky,. John Mammen borrowed about twenty-eight hundred dollars from the Pabst Brewing Company and obtained the signature of Stubbe as surety on his note for that amount. To secure Stubbe, appellant here, in that transaction, Mammen gave a bill of sale to Stubbe of the saloon fixtures and everything connected with the business, and then, as a part of the same transaction, entered into a contract with appellant by the terms of which Mammen was to conduct the business for appellant, pay all bills and retain any balance there might be as his own profits. The saloon license was, by petition of Mammen, transferred by the city council of Sterling to Stubbe and remained in his name until February, 1913, when appellant sold the business to a third party and the license was transferred again. The evidence further shows that this bill of sale and contract were, in fact, in the nature of a chattel mortgage. Appellant never took possession of the business or chattels mentioned in the bill of sale until January, 1913, when Mammen left town and turned everything over to appellant, who then for the first time took charge of the business and conducted it until it was sold again a month later.

Appellee contends that parol evidence cannot be heard to show that the bill of sale involved herein was executed with any other intention than appeared on the face of the instrument, and the decision of the court below seems to have been based upon that theory. This may be the law applicable to actions between the parties to the instrument, but it has no application in actions between a party to the instrument and a third person. The rule excluding parol evidence to vary or contradict a written instrument has no application in controversies between a party to the instrument on the one hand and a stranger to it on the other, for the stranger, not having assented to the contract, is not bound by it and is therefore at liberty, where his rights are concerned, to show that the written instrument does not express the full and true character of the transaction; and where the stranger to the instrument is thus free to vary or contradict it by parol evidence, his adversary, although a party to the instrument, must be equally free to do so. 17 Cyc. 749. In the case at bar, appellee, not being a party to the bill of sale and contract, could have introduced oral evidence to vary or contradict those written instruments, and therefore appellant, although a party to both of said instruments, must be given the same privilege.

In this state of the proof we find Mammen owning, controlling and operating this saloon, merely subject to the incumbrance to appellant; we find the agent of appellee selling goods to Mammen, in the belief that Mammen was operating the saloon, as he was, doing business with and giving credit to Mammen and looking to Mammen alone for his pay; and we find appellee in that attitude towards Mammen until February, 1913, when his agent ascertained that appellant had come into possession of the premises and business. The fact that appellant was so in possession of the business in February, 1913, cannot make him responsible for the debts of Mammen, contracted in September, 1912, when Mammen was operating the saloon and owned the business. There is no evidence of any fraud practiced upon appellee or his agent either by Mammen or by appellant. Under the undisputed evidence, Mam-men was the owner of the saloon in September, 1912, just as appellee supposed him to be, and appellant was merely a chattel mortgagee out of possession, holding a bill of sale of certain property merely as security. The act of appellant in taking over the property and business in January, 1913, could not make him liable for the former debts of Mammen. It is entirely possible that his chattel mortgage was invalid because of his lack of possesion, and that, had appellee sued Mam-men and obtained judgment against him, he could have made that judgment ont of’ the property named and described in the bill of sale. But those questions are not raised in this proceeding.

The judgment is reversed.

jReversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that appellant is not liable to appellee for the purchase of the merchandise for which appellee brought this suit.


text:
    Pearl Berry, Appellee, v. Edwin W. Berry, Appellant.
    Gen. No. 5,936.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Husband and wife, § 267

      —when decree for separate maintenance will not be disturbed. Where a decree for separate maintenance is entered upon conflicting evidence, it will not be disturbed on review, if there is sufficient evidence to support complainant’s contention.
    2. Husband and wife, § 249*—solicitors’ fees not excessive. An allowance of fifty dollars for solicitors’ fees in an action for separate maintenance is held not to be excessive, there being no question as-to the court’s right to make such an allowance.
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Rehearing denied October 8, 1914.
    Statement of the Case.
    Action by Pearl Berry against Edwin W. Berry for separate maintenance. From a decree for separate maintenance and for solicitors’ fees and costs of suit and custody of a child three years of age, defendant appeals.
    Upon the question of issuing a writ of ne exeat in a divorce case to secure the payment of alimony, the court cited the following authorities: Mac Kenzie v. Mac Kenzie, 141 Ill. App. 126; Denton v. Denton, 1 Johns ch. (N. Y.) 364, 441, and cases cited.
    Heydecker & Jorgenson and E. V. Orvis, for appellant.
    H. C. Coulson and R. F. Fowler, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Ne exeat, § 8*—when objection to power of court to issue not preserved for review. Where an appeal bond does not recite an appeal from a distinct order for a writ of ne exeat, which was not questioned in the trial court, the question whether the issuance of such a writ was beyond the powers of the court because not within the letter of the statute was not saved for review.

Whitney, J., took no part in this decision.


text:
    William Leonard et al., Plaintiffs in Error, v. Joseph Garland et al., Defendants in Error.
    Gen. No. 5,877.
    1. Dbainage, § 47

      —when bill will not lie to restrain acts of commissioners. In an action to restrain a board of commissioners for a drainage district from making payment on a contract for drainage tile, and to restrain them from using in the improvements any tile not in accordance with the contract, held the bill was properly dismissed, as the court was without jurisdiction to review the exercise of the board’s discretion in passing upon the work accepted and in settling for the same in the absence of any showing of fraud, the evidence tending to indicate that the question was one on which intelligent men, charged as were the commissioners, with the duty of passing upon the work, might honestly differ.
    2. Municipal cobporations, § 250*—discretionary power of board of public works. Board of public works having charge and superintendence of public improvements, given by law a discretion in letting contracts and in passing upon the character of the work and in settling for the same, are not within the control of a court in the exercise of such discretion so that a court will not hear proofs and attempt to determine whether the discretion is wisely exercised or not in a given case.
    3. Dbainage, § 43*—powers of commissioners. The law giving a board of commissioners for a drainage district power to contract for and pass upon the character of the work and to settle for the same necessarily requires that it exercise judgment and discretion in determining whether the work is done according to contract, as well as in letting the contract; and in supervising and settling for work, the commissioners do not act merely as ministerial officers.
    4. Dbainage, § 47

      —power of commissioners to settle for improvement. In the absence of proof of fraud it is immaterial whether a board of commissioners of a drainage district shows intelligent care and attention in passing upon and settling for drainage improvements, although there may he cases where the intelligence is so great that fraud will he presumed, or where the work accepted is so different from that contracted for as to make an improvement of an entirely different character and description, such as to require relief in equity.
    Error to the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Butters & Armstrong, for plaintiffs in error.
    C. S. Cullen, D. L. Donovan and John Garland, for defendants in error; B. F. Lincoln, 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 Carnes

delivered the opinion of the court.

Plaintiffs in error, William Leonard and others, hereinafter called complainants, are owners of land in a drainage district organized under our Farm Drainage Act. Defendants in error, hereinafter called defendants, are the commissioners of that district, and a company that furnished and laid tile in the drainage ditch under a contract with the commissioners. This suit began by a bill for injunction filed by the complainants in which it was averred that the commissioners had fraudulently conspired with the company to pay it more than four thousand dollars of the public funds for worthless tile that the company was installing in the ditch in violation of the contract under which the work was done, and praying that the commissioners be restrained from making payments on the contract, and that the defendants he restrained from using' in the improvement any tile not in accordance with the contract. The defendants answered the bill and the chancellor on a hearing on the pleadings and affidavits denied a temporary injunction and dismissed the bill. The complainants prosecuted an appeal to this court where the decree was affirmed, and then a writ of error to the Supreme Court where the judgment of this court and the decree of the Circuit Court were reversed and the cause remanded to the Circuit Court. The case is reported under the title of Leonard v. Garland, in 157 Ill. App. 355, and reversed in 252 Ill. 300, and the opinions may be read for a more complete statement of the matters involved.

The case was reinstated in the Circuit Court and tried on the pleadings and evidence of witnesses heard in open court, resulting in a decree dismissing the bill for want of equity, and the case is brought here by writ of error.

Much oral testimony was heard by the chancellor, in large part directed to the question whether the tile furnished was in accordance with the specifications of the contract. There was no proof of any corrupt agreement between the commissioners and the company, or that the commissioners had made or attempted to make any personal profit in the transaction, but there was a sharp conflict of evidence on the question whether the tile was of the kind and character specified; and had it been the duty of the court to weigh that evidence and control the judgment and discretion of the commissioners on that question, we would deem it necessary to fully discuss the proofs and the weight which, in our judgment, should be given to the various items of evidence. But under our view of the law it is sufficient to say that there was much apparently credible evidence supporting each contention, and therefore we presume the question was one on which intelligent men charged, as were these commissioners, with the duty of passing upon the work, might honestly differ.

There is no contention that the commissioners were not authorized to contract and settle with the company for the tile, and we think it clear that the law giving them that power and imposing upon them that duty necessarily required them to exercise judgment and discretion in determining whether the work was done according to the contract, as well as in letting the contract ; though complainants contend here that after the contract was let the commissioners were acting as ministerial officers in supervising and settling for the work, and that a case is made by showing to the satisfaction of the court that they accepted tile inferior to that contracted for without further showing a fraudulent intent, and Gage v. Springer, 211 Ill. 200, is cited in support of that contention. We think that case, when read with others hereinafter noted, is authority only that public officers charged with duties similar to those under consideration here are subject to the control of courts if they attempt to substitute, as they did in that case, 1 ‘ an improvement of an entirely different character and description” from the one contracted for. The facts of this case do not bring it within that rule.

It has long been settled law in this State that boards of public works having charge and superintendence of public improvements, and given by law a discretion in letting contracts and passing upon the character of the work, will not be controlled by a court in the exercise of that discretion, and that courts will not hear proofs and attempt to determine whether the discretion is wisely exercised or not. Kelly v. City of Chicago, 62 Ill. 279, is an early case where the doctrine was applied to the letting of a contract, and that case has been followed in later cases involving the same question, and complainants’ counsel say that the rule is limited to cases of discretion exercised in letting a contract. Bnt in Fitzgerald v. Harms, 92 Ill. 372, the question arose as to the power of the court to interfere with the action of a board of commissioners in settling for work done by a contractor in erecting a courthouse, and the court said the board was intrusted with power to examine and settle all accounts against the county, and that the court would not stop to inquire whether the claim of the contractor was meritorious or not; that commissioners clothed by the law with certain powers, as long as they keep within their jurisdiction although they may err in judgment, cannot be interfered with by the courts unless fraud be shown; that the only remedy is in the hands of the taxpayers in a judicious use of the ballot at the polls to defeat incompetent men. This case is cited and followed in County of Coles v. Goehring, 209 Ill. 142. In the opinion there is found a very full discussion of the powers and duties of courts in the supervision of public officers in the discharge of their duties in contracting for and supervising public improvements; and in People v. Kent, 160 Ill. 655, where the court found neither favoritism nor fraud as a matter of fact, and said none is to be inferred as a matter of law, it was held that in the absence of fraud courts have no right to interfere with the exercise of official judgment and discretion vested in a public officer. To the same effect is Johnson v. Sanitary Dist. of Chicago, 163 Ill. 285.

In the absence of proof of fraud it is immaterial whether the record shows want of intelligent care and attention on the part of the commissioners or not. Cases may be imagined where the negligence is so great that fraud would be presumed, or where the work accepted is so different from that contracted for as to make an improvement of an entirely different character and description, and in such cases a court of equity might grant relief. But on this record the- default of the commissioners, if they were negligent or erred in judgment, is beyond the power of a court of equity to remedy.

The decree is affirmed.

Affirmed.

This case was considered and decided at the October term, 1913, and the preparation of the opinion has been delayed by the sickness arid death of Mr. Presiding Justice Whitney, to whom the case had been assigned to write the opinion.