text:
    August Kieper, Appellee, v. American Coal & Supply Company, Appellant.
    Gen. No. 19,297.
    1. Accord and satisfaction, § 4

      —-when check not accepted as full payment. In an action to recover the contract price of wood of which the defendant refused to accept delivery, held under the facts of the case that plaintiff’s acceptance of a check from defendant could not be considered as having been received in full payment of plaintiff’s demand.
    2. Saies, § 330*^when instruction authorising recovery of contract price misleading. In an action to recover the contract price of wood sold to defendant on his refusal to accept delivery, an instruction given for plaintiff which, in effect, told the jury that if they believed from the evidence that at. the time plaintiff received defendant’s directions not to deliver the balance of the wood, plaintiff was able, ready and willing to deliver the same, then plaintiff was entitled to recover the full contract price less payments and cost of hauling, held misleading where there was evidence showing that plaintiff had sold some of the undelivered wood.
    3. Courts, § 100*—jurisdiction of County Court. County Court is not without jurisdiction to hear a cause and enter a judgment by reason of the fact that an additional count in the declaration claimed that defendant owed plaintiff more than $1,000, it appearing that the summons served on defendant stated the claim to be for $1,000, and the ad damnum clause in plaintiff’s original declaration the damages were also placed at $1,000, and it not appearing that the ad damnum was increased in amount.
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 21, 1914.
    Statement by tbé Court. On September 27, 1912, August Kieper commenced an action in assumpsit in the County Court of Cook county against the American Coal & Supply Company, a corporation, defendant. The original declaration consisted of the common counts. The ad damnum was $1,000. The writ which was served on the defendant also stated that the damages claimed by the plaintiff was $1,000. On November 7, 1912, by leave of court, plaintiff filed an additional count, in which it was alleged, in substance, that on August 22, 1911, plaintiff and defendant entered into a written contract (a copy of which was appended to the count and marked “A”) by which plaintiff agreed to “cut, haul and deliver” to defendant “500 cords of four foot, good, sound maple and birch wood, f. o. b. cars at Florence Station, Wisconsin, for the sum of $3.25 per cord, shipments to commence as soon as the sleighing conditions would permit but not earlier than December 1, 1911, and defendant agreed to pay for said wood the said sum per cord, payments to be made for each car as received by defendant; that plaintiff delivered to defendant 204 cords of said wood which were accepted by defendant; that plaintiff was “ready, willing and able to deliver” the balance of the wood, viz., 296 cords, but that defendant “refused to accept said wood and directed plaintiff not to ship said wood;” that the total purchase price of said wood was $1,625 and that defendant paid to plaintiff on account of said wood the sum of $39 on January 16, 1912; $156 on February 10th; $200 on March 5th; and $158.08 on May 13, 1912, or the total amount of $553.08; and “plaintiff says there is now due and owing to plaintiff from defendant the sum of $1,071.92, wherefore he brings suit.” The defendant filed a plea of the general issue and gave notice of a claim of set-off or recoupment in the amount of $109.92, and also of the defense of accord and satisfaction, in that on, towit, May 13, 1912, plaintiff “accepted of the defendant $158.08 in full satisfaction and discharge of the said several promises and of ail the sums in said declaration mentioned.” The case was tried before a jury who returned a verdict in favor of plaintiff, assessing plaintiff’s damages at the sum of $871.92, upon which verdict the court entered judgment against the defendant. Plaintiff seeks by this appeal to reverse the judgment.
    The material facts as disclosed from the evidence are as follows; Shortly after the written contract mentioned in the declaration was executed, - plaintiff commenced cutting wood on “his place,” which was some distance from Florence Station, and during the fall of 1911 and the succeeding winter about 1,200 cords of wood were cut. Prior to February 23, 1912, plaintiff had cut, hauled and shipped to defendant 204 cords of maple and birch wood. This wood had been loaded at Florence Station into cars—17 in number with about 12 cords in each car. About this time, plaintiff received from defendant a letter, dated February 23, 1912, as follows: “Please do not ship any more wood. The plant whom we have been supplying has shut down, and asked us to stop shipping. Please be governed accordingly.” Plaintiff testified, in substance, that after he received this letter he ceased making any further shipments of wood to defendant; that at this time, in addition to the 204 cords of wood already shipped to defendant, he had hauled and piled near the side track at Florence Station, 96 cords which he had intended, prior to the receipt of said letter, to ship to defendant under said contract; that “some of the wood is on the ground there yet,” but how much he could not say, as he had sold some of it; that.at the time of the receipt of said letter he had received $195 from defendant as a payment on account, that he subsequently received from defendant a check for $200 on or about March 5, 1912, and a check for $158.08 on or about May 13, 1912, both of which checks he cashed, and that all of these payments amounted to the total sum of $553.08; that it cost him $1 per cord to haul the wood from where it was cut to the railroad track, but that he had not at any time hauled the balance, 200 cords, of the 500 cords mentioned in the contract to the railroad track at Florence Station, on defendant’s account. The defendant introduced in evidence a letter by plaintiff to defendant, dated March 6, 1912, in which plaintiff wrote in part: “I received your letters. Thank you very much for the check, * * * When you notified me that I should ship no more wood I had lots piled alongside of the track. I sold some to Kramer Bros, at Iron Mountain and got about six cars left. Could you use it now or a month from now without docking. Its the same kind of wood as I have shipt to you.” Defendant’s witness, C. J. Boedeker, general manager of the defendant company at Chicago, testified that on May 13,1912, he mailed to plaintiff a check of the defendant, payable to plaintiff’s order for $158.08, and that with the check he inclosed a statement of account and a letter to plaintiff written by the witness in longhand. The check was introduced in evidence, on the back of which appeared the signature of plaintiff and indorsement showing that the check had been paid through the Chicago ClearingHouse. Nowhere on the check v^ere there any words “in full,” or “in full of account,” or words of similar import. Plaintiff, while on the stand, testified that when he received this check he also received a statement but was not sure that he received a letter. The statement was produced by the defendant on notice, but the court refused to admit the same in evidence. The letter was not produced and the witness Boedeker, testified that he had not kept a copy of the same. The court allowed him to testify as to its contents as follows: “I wrote and told him that we enclosed a statement of his account and called his attention to the shortages and debit charges, which added together with the check, * * balanced his account in full.” The statement, which was refused admission, is contained in the bill of exceptions. It purports on its face to be a statement of account between plaintiff and defendant, in which defendant charges itself with the shipments of the 204 cords of wood to the amount of $663, and credits itself with previous payments aggregating $395, and with certain “shortages” and other “allowances” (itemized) aggregating $109.92, and with “check herewith” of $158.08, making the total credits also the sum of $663. Nowhere on the statement are there any words to the effect that the said check is “in full” or “in full of account.” The defendant also introduced in evidence a letter, dated May 20, 1912, from plaintiff to defendant, in which plaintiff wrote, in part: “I received the check for $158.08 as a part payment on what you owe me. I see you try to dock $109.92, which you have no right whatever to do. If the wood did not suit you, you had no business to take it. * * * If you want to settle with me for $75, I will call it square. * * * I will wait till May 28th to get the $75 and if I don’t get it by that time then I will give it to a lawyer.”
    Edward J. Kelley, for appellant.
    Julius C. Greenbaum, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

It is contended by defendant’s counsel that the acceptance by plaintiff of defendant’s check of May 13, 1912, for $158.08, satisfied plaintiff’s entire demand, and, hence, the judgment cannot be sustained. Counsel cites the cases of Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244, and Snow v. Griesheimer, 220 Ill. 106. Under the facts as disclosed by the evidence, and even considering the statement (not admitted by the court) which was inclosed with the check we cannot say that the check in question was offered under such circumstances as to amount to a condition that, if accepted by plaintiff, it was to be received in full payment of plaintiff’s claim or demand, or that the acceptance of said check by plaintiff should be given the effect contended for. The facts of the present case are different in essential particulars from the facts in the cases cited.

It is also urged that, under the theory of recovery adopted by plaintiff and in view of the testimony of the plaintiff, the court erred in giving to the jury the following instruction:

“The jury are instructed if they believe from the evidence that the plaintiff and defendant entered into a contract for the purchase and sale of 500 cords of Afoot, good, sound maple and birch wood, at the agreed price of $3.25 per cord, and if the jury further believe from the evidence that plaintiff delivered to the defendant 204 cords of wood of the kind and quality specified in the contract, and received for said wood the sum of $553.08, from the defendant, and if the jury further believe from the evidence that the plaintiff was able, ready and willing to deliver to said defendant the balance of said wood under said contract, amounting to 296 cords, but that the defendant directed and requested the plaintiff not to deliver or ship said 296 cords, then the jury are instructed that the plaintiff is entitled to recover from the defendant the value of said 204 cords, less whatever sum or sums are shown by the evidence to have been paid by the defendant to the plaintiff, and the further sum of $3.25 per cord for the remaining 296 cords, less whatever sum or sums it would have cost the plaintiff to deliver said 296 cords to the railroad track as shown by the evidence, but not more than the sum of one thousand ($1,000.00) dollars. Provided you further believe that no compromise proposition was made and accepted. ’ ’

In Bagley v. Findlay, 82 Ill. 524, 525, it is said (italics ours):

“When a vendee of goods, sold at a specific price, refuses to take and pay for the goods, the vendor may store the goods for the vendee, give him notice that he has done so, and then recover the full contract price, or he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery, * * * or the vendor may, giving notice to the vendee, proceed to sell the goods, in their then condition and quantity, to the best advantage, and recover of the vendee the loss, if the goods fail to bring the amount of the contract price.”

In Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 80, it is said (italics onrs):

“It is well settled that where one party repudiates the contract and refuses longer to he hound by' it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter case the contract would be continued in force for that purpose.”

In Osgood v. Skinner, 211 Ill. 229, 239, it is said (italics ours):

“If there has been no delivery of personal property, the seller who has offered performance on his part may consider the property as the purchaser’s, and may either sell it and sue for the unpaid balance of the price, or may hold it subject to the call or order of the purchaser and recover the whole price. * * * The seller often chooses to retain the title to the property and recover the difference between the value and the contract price, but if the property remains in his hands he is not obliged to consider it as his own.”

In the case of Alvey-Ferguson Co. v. Ernst Tosetti Brewing Co., 178 Ill. App. 536, 543, it was said in an opinion of this court:

“The Supreme Court of Illinois, however, has several times held that the giving of a notice by the vendee to stop performance, or a notice that the vendee will refuse to accept the goods sold if tendered, does not, per se, create a breach of the contract, except at the election of the vendor. In such cases it is held that the vendor may elect to treat the notice as a breach of the contract and sue at once for damages occasioned thereby, but he is not bound to do so. He may, if he prefers, elect to keep the contract alive notwithstanding such notice, being ready and able at all times, in snch case, to perform Ms part of the contract.”

In the present case, plaintiff, by the written contract, agreed to “cut, haul and deliver on board cars” at Florence Station 500 cords of wood for $3.25 per cord, and it appears from the evidence that when he received defendant’s letter of February 23, 1912 directing him not to ship any more wood, he had already shipped 204 cords to defendant, and that 96 other cords had been hauled to Florence Station and were piled near the sidetrack ready for shipment, and that the balance, 200 cords, had not yet been taken out of the woods where said cords had been cut. Under the additional count of the declaration, plaintiff sought to recover the full contract price of the 500 cords, less payments received, and the case was prosecuted on that theory. It further appears that plaintiff, upon the receipt of the letter of February 23rd, ceased making any further shipments of the wood but it does not appear that he notified defendant that he elected to “keep the contract alive for the benefit of both parties,” or that he took any steps to store or properly protect the undelivered cords of wood for defendant notifying the latter that he had done so, or that he advised defendant that the undelivered cords were “subject to the call or order” of defendant. On the contrary, it appears from plaintiff’s letter of March 6th that plaintiff wrote defendant that he had sold some of the wood “to Kramer Bros, at Iron Mountain,” that he had about “six cars left” (about 72 cords), and inquired if the defendant could use the same then or within a month. This certainly does not tend to show that plaintiff was “at all times himself ready and able to perform.”

We are of the opinion that, under the facts in evidence, the giving of the instruction above set forth constituted error prejudicial to the defendant. The instruction was misleading. It in effect told the jury that if they believed from the evidence that at the time plaintiff received defendant’s directions not to deliver the remaining 296 cords, plaintiff was able, ready and willing to deliver said 296 cords, then plaintiff was entitled to recover the full contract price, less payments and the cost of hauling the unhauled cords, even though subsequently and at all times plaintiff was not able to deliver said remaining 296 cords. By this instruction the jury, in considering the same in connection with the testimony, might have inferred that plaintiff might recover of defendant the full contract price, less payments and said cost of hauling, even though plaintiff, after receiving defendant’s said directions, had himself sold some of the undelivered cords of wood and did not consider said cords as belonging to the defendant and subject to its call or order. Because of the giving of this instruction we think the judgment must be reversed and the cause remanded for a new trial.

And in view of this decision it may not be out of place for us to say that we do not think that the County Court was without jurisdiction to hear the case and enter a judgment, as urged by counsel for defendant. The argument is, that by section 95 of chapter 37 of the Illinois Statutes (J. & A. jf 3131), the County Court is given jurisdiction in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the “amount claimed or the value of the property in controversy shall not exceed $1,000,” and that it appears from plaintiff’s additional count that plaintiff claimed there was due and owing him by the defendant “the sum of $1,071.92,” which is an amount in excess of the jurisdiction of said court. It is to be noticed that in the writ of summons served upon the defendant the damages claimed by the plaintiff were stated to be $1,000, and in the ad dammum clause in plaintiff’s original declaration the damages were also placed at $1,000, and it does not appear that this ad damnum was increased in amount. If the plaintiff thought that at the time he brought suit defendant owed him more that $1,000, it was his privilege, if he chose to release and forgive a part of the debt. Raymond v. Strobel, 24 Ill. 114, 115; Carpenter v. Wells, 65 Ill. 451; Ellis v. Snider, Breese 336. When he brought suit in said County Court he claimed damages in the sum of $1,000, the limit of the court’s jurisdiction. In 1 Cyc. 763, the ad damnum is said to be “that part of the plaintiff’s pleading in which he alleges the amount for which he claims recovery.” And the jurisdiction of the County Court depends upon the amount claimed by the plaintiff. Young v. Mueller Bros. Art. & Mfg. Co., 124 Ill. App. 94, 96; Hull v. Webb, 78 Ill. App. 617, 619; People v. Summers, 16 Ill. 173, 174. And in all actions sounding in damages, as assumpsit and tort, the amount claimed is to be ascertained by the ad damnum. Cole v. Hayes, 78 Maine, 539, 541; Hapgood v. Doherty, 8 Gray (Mass.) 373, 374; Walcott v. Holcomb, 24 Ill. 331; Wright v. Smith, 76 Ill. 216.

The judgment of the County Court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    The People of the State of Illinois for use of Chicago Title and Trust Company, Administrator, Appellant, v. Henry Harms and Wilhelm Ross, Appellees.
    Gen. No. 19,209.
    1. Insane person, § 31

      —liability of sureties on. conservator’s bond for performance of duties in administering ward’s "éstate. Sureties on the bond of a conservator are liable for the faithful performance by the conservator of the new duties imposed upon him by the amendment of 1895 to section 9, chap. 86, R. S., J. & A. V 7293, authorizing a conservator on death of his ward to administer the estate without further letters of administration.
    2. Insane person, § 28*—effect of statute authorizing conservator

      to administer ward’s estate. Amendment of 1895 to section 9, chap. 86, R. S., J. & A. If 7293, authorizing a conservator on death of his ward to make final settlement and distribution of the estate without further letters of administration, held not to create a new office but to simply provide for the performance by the conservator of certain new duties.
    3. Official bonds, § 44

      —when sureties not discharged by change of principal’s duty by subsequent laws. A surety on an official bond is not discharged by subsequent laws that change or add to the duties of the office to which the bond relates, so long as the imposed duties are fairly appropriate and germane to the office; and the fact that the subsequent -legislation tends to greatly increase the duties of the office will not change the responsibility of the surety, so long as the new duties are of the same kind as those that pertained to the office at the time of the signing of the bond.
    4. Official bonds, § 44*—when new duties imposed by statute on conservator are germane to the office. The new duties imposed upon a conservator by the amendment of 1895 to section 9, chap. 86, R. S., J. & A. If 7293, held fairly appropriate and germane to the office of conservator and not to essentially change the nature and character of the office so that sureties on the official bond of the conservator would not be liable for the faithful performance by the conservator of such additional duties.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 21, 1914.
    Statement by the Court. This is an action of debt, brought in the name of the People of the State of Illinois for the use of the Chicago Title and Trust Company, administrator de bonis non of the estate of George W. Savage, deceased, appellant (hereinafter called the plaintiff) against the appellees, Henry Harms and Wilhelm Boss (hereinafter called the defendants), as sureties upon the bond of Millard F. Biggie, as • conservator of the estate of George W. Savage, a distracted person.
    To an amended declaration filed, the defendants, on October 13, 1910, filed sundry pleas. A stipulation was then entered into between the parties and an order was then entered making the stipulation a part of the record, whereby, in order to simplify the pleadings, it was stipulated that the plaintiff should have the right to introduce, under the pleadings as they then stood, any and all such competent evidence to maintain the action on said bond as could or might be introduced under any proper pleadings which plaintiff might have filed in such action, and that the defendants, under such stipulation, should have the right to introduce, under the pleadings as they then stood, any and all such competent evidence to maintain their respective defenses as they could or might have introduced under any proper pleadings which they could or might have filed to such action. The bond in question is the bond of Millard F. Biggie, given as conservator of the estate of George W. Savage, a distracted person, and is signed by the defend-' ants, Harms and Boss, as sureties. It bears date January 11, 1889, the date of Biggie’s appointment as such conservator, and is in the penal sum of $25,000. It is an ordinary conservator’s bond, conditioned, among other things, as follows: “And pay over and deliver all the estate, title papers and effects remaining in his hands, or due from him on such settlement, to the person or persons lawfully entitled thereto.” Biggie continued to act as conservator from the date of his appointment until the death of Savage, which occurred on December 18, 1899, during which time Biggie filed from time to time his annual accounts as such conservator. The last of said accounts filed by him prior to the death of Savage was filed December 11, 1899, at which time he admitted having a balance on hand of $250.95. Three days prior to the death of Savage, on December 15, 1899, Biggie, as conservator, consummated a sale of real estate and received therefor the sum of $2,032. On August 4, 1902, Biggie filed in the Probate Court of Cook county an account covering the period from December 11, 1899, the date of his last annual account, to December 18, 1899, the date of Savage’s death, in which account he charged himself with the sum of $250.95, balance on hand at date of his last account, and also with the said sum of $2,032. He credited himself with certain moneys paid for insurance, cost and expenses of sale of real estate, etc., amounting in all to $119.20, leaving a net balance in his hands on the date of Savage’s death of $2,163.75.
    On January 14, 1903, an order was entered by the Probate Court, in which it is recited that Biggie, conservator, presented his final account with his ward (filed August 4, 1902) showing a balance due the Ward’s estate of $2,163.75, and ordering that said account be approved and recorded and that said conservator be discharged. The order further recited “that said conservator, Millard F. Biggie, who is now acting as administrator of said deceased ward’s estate, file herein an inventory as such administrator within five days from this date.” On October 17, 1902, Biggie, “conservator acting as administrator,” filed in the Probate Court an inventory of the real and personal estate belonging to the estate of Savage, in which Biggie charges himself, as “conservator acting as administrator,” with said sum of $2,163.75^ also with goods and chattels to the value of $108.75.
    On February 2, 1903, an order was entered in the Probate Court approving said inventory of Biggie, “conservator acting as administrator,” and ordering the same recorded. On October 30, 1907, Biggie, “conservator acting as administrator of the estate of George W. Savage, deceased,” filed in the Probate Court an account in which he charges himself, as “conservator acting as administrator,” with said sum of $2,163.75, and credits himself with certain moneys paid out for funeral expenses of the deceased, widow’s award and other items amounting in all to $1,491, the account showing a balance on hand of $867.86. This account is sworn to by Biggie and is the last one filed by him.
    Biggie, “conservator acting as administrator,” upon the death of Savage, proceeded to administer upon the estate of Savage. He caused the goods and chattels to be appraised, the widow’s award to be fixed, attended to the payment of the funeral expenses of the deceased, paid the widow’s award and certain claims against the estate, and was still in office at the, time of his death, August 20, 1908.
    The case was submitted to the court without a jury. The court found the issues for the defendants and entered judgment against the plaintiff for costs, from which finding and judgment the plaintiff has perfected this appeal.
    Dent & Jackson, for appellant.
    Gail E. Deming and Julius H. Geweke, 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 Scanlan

delivered the opinion of the court.

It is admitted that Millard F. Biggie, at the time of his death, had in his possession a considerable sum of money belonging to the estate of George W. Savage, a distracted person, and that said sum of money has not been paid and delivered over to those entitled thereto. The position of the defendants, who are the sureties of Biggie as conservator of said estate, is, that when Biggie, the conservator (under the amendment to section 9, chapter 86, B. S., J. & A. ft 7293), assumed the duties of administering on the estate of his deceased ward, he then had in his possession all of the moneys of the said ward for which he could be justly chargeable at that time, and that they, the sureties, are not responsible under the law for the conduct of Biggie after he assumed the said administration duties. The plaintiff contends that the sureties are bound by the conduct of Biggie after he assumed the said duties. The trial court held with the defendants in their construction of the law and entered a finding and judgment in their favor, and the plaintiff has prosecuted this appeal to reverse this judgment. The trial court found from the evidence introduced that Biggie, at the time he assumed the said administration duties, then had in his possession all of the funds of the estate for which he could be justly chargeable at that time, and that the moneys now due and owing from Biggie to the estate were converted by Biggie after he had assumed the said administration duties. The plaintiff strenuously contends that the evidence proves conclusively that Biggie converted the moneys that he now owes the estate, prior to the time that he assumed the said administration duties. In the view that we have taken of this case, it will not be necessary for us to pass upon this contention of the plaintiff.

At the time the defendants signed the bond of Biggie, viz.: January 11, 1889, section 9, chapter 86, B. S. (J. & A. fí 7293), entitled Lunatics, Idiots, Drunkards and Spendthrifts,” provided as follows:

“Such conservator shall, at the expiration of his trust, pay and deliver to those entitled thereto all the money, estate and title papers in his hands as conservator, or with which he is chargeable as such, in such manner as shall be directed by the order or decree of any court having jurisdiction thereof.”

On January 7, 1895, the legislature amended this section by adding thereto the following:

“Whenever any lunatic, idiot, drunkard or spendthrift shall die, seized or possessed of any real or personal estate, then such conservator shall have full power and authority under the letters issued to him or her to make final settlement and distribution of the estate of said deceased ward without further letters of administration, in such time and manner as is required by law of administrators of the estate of deceased persons: Provided, this shall not apply to non-resident conservators. ’ ’

The defendants contend that by virtue of this amendment to section 9, Biggie, on the death of Savage, December 18, 1899, became “conservator acting as administrator” of his deceased ward’s estate, and that thereupon it became his duty as conservator to at once turn over to himself as “conservator acting as administrator,” all moneys and properties belonging to said estate that were then in his hands as conservator, and that he performed this duty, and that the sureties on Ms bond as conservator were then and thereby absolved from responsibility for Ms future conduct. The plaintiff contends that the amendment in question simply provides that at the death of a ward the office of conservator shall continue until the ward’s estate is settled in the same way in which the estates of other deceased persons are settled and without letters of administration. In other words, the defendants contend that the amendment to section 9 created a new office for the conservator on the death of his ward, while on the other hand the plaintiff contends that the amendment simply provided for a continuation of the original trust with certain additional duties attached thereto. If a new and independent office was created by the amendment it will be, of course, conceded that the defendants were not responsible for the conduct of Biggie in his administration of the new office.

In the case of Lang v. Friesenecker, 213 Ill. 598, the Supreme Court had occasion to consider the meaning and intent of section 9 of chapter 86 as approved March 26, 1874, and also the 1895 amendment to the same. We quote from the opinion of the court (italics ours):

“We see no reason why the matter, contained in the amendment of 1895 to section 9 of chapter 86, cannot be regarded as germane to the subject matter contained in the original section 9 as it stood in 1874. The amendment merely provided that, where the insane person should die, the conservator should proceed to make final settlement of his estate without further letters of administration, and in such manner as was required by law of administrators. The original section stated what the conservator was to do at the expiration of his trust, and the amendment simply provided that, at the death of the ward, that trust should continue until the ward’s estate should be settled in the same way in which the estates of other deceased persons are settled, and without new letters of administration. The amendment had relation to the duties of the conservator just as the original part of the section had relation to such duties.”

It will be noted as a circumstance tending strongly to support the contention that the legislature did not intend, by the amendment, to create a new office, that the amendment does not provide for the giving of a bond by the conservator after the death of the ward. The defendants argue that this was an oversight on the part of the legislature. We cannot indulge in any such presumption. Neither can we presume that the legislature intended that on the death of a distracted person, the moneys and the personal property of the said person should pass from the hands of his conservator, under bonds, to the hands of another official, not under bonds.

In support of their position that Biggie had two offices, conservator and “conservator acting as administrator,” and that the sureties on his bond as conservator are not responsible for his conduct while acting in the position of “conservator acting as administrator,” the defendants cite certain cases, the more important of which we will now notice.

In the case of Bell v. People, 94 Ill. 230, Jackson Frick was administrator of the estate of James Evans, deceased, and he was also guardian of Mary E. Evans, the daughter of the said deceased, and his sole heir. A bond for each office was given but with different sets of sureties. Frick died, and he then owed, either as said administrator or said guardian, the sum of $5,797.14. The Supreme Court held that, under the facts in the case, Frick owed the amount as guardian and that therefore the sureties on his bond as guardian were responsible for the said amount.

In the case of People v. Huffman, 182 Ill. 390, the court held, that “where one is appointed to an office, such as executor, administrator or guardian, as to which certain duties are prescribed by statute and for the performance of which he is required to give a bond with security, it is a general rule that when that officer is further required to discharge official duties which are special in their nature and for the faithful performance of which he is required to give a special bond, in the absence of any declaration in or provision of a statute that the general bondsmen shall be liable for the faithful discharge of the special duty no liability can be held to attach for which they would be liable on their general bond.” In this case, one Joseph Wilson was appointed executor of the last will of Isaac Wilson, and he gave a bond as such executor. Subsequently it became necessary under the will for the executor to sell certain real estate belonging to the estate. The statute requires that a special bond be given by the executor when real estate is to be sold. The court held that the executor in the matter of the sale of the real estate was not discharging a duty as executor but a duty as trustee under the will, and that the sureties of the executor under the bond given by him when he was appointed to said position were not liable for the conduct of the executor acting as trustee in the matter of the sale of the real estate.

In the case of Weir v. People, 78 Ill. 192, it appears that one Jacob Bitzer, Jr., died intestate, leaving personal property, and one Krafft was appointed administrator of the estate and gave his bond in the usual form. The sole heir of the intestate was his father, Jacob Bitzer, Sr., who, after the death of the son, also died leaving a last will and testament, and appointing the said Krafft executor. Krafft qualified and acted as such. He gave a bond for this office with sureties different from those that had signed his bond as administrator. No account was ever rendered by Krafft of his acts and doings as administrator of the estate of Jacob Bitzer, Jr. The question for the court to decide was whether, under the facts of the case, the sureties on the administrator’s bond were responsible for the payment of the residuary part of the personal estate of Jacob Bitzer, Jr., to the legatees under the will of Jacob Bitzer, Sr. That case, like that of Bell v. People, supra, and People v. Huffman, supra, presents a case of one individual holding two separate and distinct offices with separate sureties for each office, and none of these cases, in our opinion, is in point.

The counsel for the defendants admit that “it is undoubtedly true that any person becoming surety on a conservator’s bond, since the amendment of 1895 went into effect, would be liable for the acts of his principal, after the death of his ward and while he was acting as administrator.” It seems to us that this statement of the counsel is, in effect, an admission that the amendment did not create a new office, but only added certain new and additional duties to the office of conservator. After a careful consideration of the question, we have reached the conclusion that the amendment to section 9 did not create a new office, and that it simply provided for the performance by the conservator of certain new duties. In our judgment, the language of the amendment will permit of no other reasonable conclusion.

The defendants further contend that (assuming that the amendment did not create a new office) their undertaking was that of sureties, under the law as it existed at the time of the making of the instrument, and that this undertaking or contract could not be changed by any subsequent act of the legislature, and that the amendment" to section 9 increased the duties and extended the term of the conservator, and that consequently they are not bound under their obligation for any conduct of Biggie occurring after he commenced his duties under said amendment.

It must be borne in mind that the duties of a conservator are not assigned or regulated by contract, but by law. The conservator occupies a public office and the bond given by him is an official bond. Chapter 103, Hurd’s B. S. (J. & A. fifí 7884 et seq.) As between private parties, the law is that any alteration in the obligation or contract, in respect of which a person has become a surety, without the consent of the latter, extinguishes his obligation and discharges him. The reason for this rule is that the surety has never made the contract upon which it is sought to charge him, the alteration in the contract having been made without his consent. The defendants are contending that the same rule is applicable to official bonds.

“In the absence of express provisions in the bond to the contrary, a surety at the time of executing an official bond is presumed to contemplate subsequent changes and additions in the duties of the office to which the bond relates which do not essentially change the nature and character of the office, and to contract with reference to such changes and additions. But he is not presumed to contract with reference to subsequently imposed duties which are not fairly appropriate and germane to the office unless the words of his undertaking or the law in force at its date by a fair and reasonable construction bring such duties within its provisions.” Am. & Eng. Ency. of Law, Yol. 27, p. 542.

“The sureties of an officer upon his official bond are liable for the faithful performance of all duties imposed upon such officer, whether by laws enacted previous or subsequent to the execution of the bond, which properly belong to and come within the scope of the particular office, and not for those which have no connection with it, and cannot be presumed to have entered into the contemplation of the parties, at the time the bond was executed.” Governor v. Ridgway, 12 Ill. 19; Compher v. People, 12 Ill. 290; Smith v. Peoria County, 59 Ill. 425; Ramsay’s Estate v. People, 197 Ill. 585; People v. Vilas, 36 N. Y. 459. “If the sureties in the official bonds of persons holding offices created by laws, were to be discharged by every change of the laws relating to their duties, it would in these days of ever frequent change be to little purpose to trouble the officers to obtain sureties.” Governor v. Ridgeway, supra, p. 18.

The legislature has the power, at any and all times, to change the duties of officers, and the continued existence of this power is known to the officer and his sureties. A legislative alteration of the duties of an officer do not discharge his sureties, so long as the duties remain appropriate to the office. People v. Vilas, 36 N. Y. 461-464.

Almost innumerable authorities might be cited in support of the proposition that the surety on an official bond is not discharged by subsequent laws that change or add to the duties of the office to which the bond relates, so long as the imposed duties are fairly appropriate and germane to the office; and the fact that the subsequent legislation tends to greatly increase the duties of the office will not change the responsibility of the surety, so long as the duties imposed are those of the same nature or kind as those that pertained to the office at the time of the signing of the bond.

The important question to determine in this case is, did the amendment to section 9 impose duties upon the conservator that were not fairly appropriate and germane to the office? Counsel for the defendants contend that it did. In support of this contention, a number of cases are cited. We will briefly refer to the more important of these.

In the case of Governor v. Lagow, 43 Ill. 134, certain persons were appointed by an act of the legislature, assignees, to wind up the affairs of the Bank of Illinois at Shawneetown, and they were allowed by the act four years in which to discharge the duties assigned them. The legislature afterwards, and with-, out the consent of the assignees’ sureties, extended the time for the winding up of the- affairs of the bank two years. The court in its decision held that as the sureties had only undertaken to be responsible for the acts of the assignees for a period of four years, they could not be held liable for the acts of their principals during the period of the extended time. The case of People v. Toomey, 122 Ill. 308, and several other like cases cited by counsel for the defendants (but not specifically referred to by us), are similar in principle to the last mentioned case. The defendants in the present ease became sureties for the conservator, not for a definite period of time, but for the life of the conservatorship, having the right to withdraw from the bond in the manner prescribed by statute. At the time they signed the bond it was, of course, impossible to tell what the duration of the life of the conservatorship would be. The court, in the case of Governor v. Lagow, supra, takes occasion to reaffirm the doctrine announced in the case of Governor v. Ridgway, supra. Counsel for the defendants cite the case of People v. Tompkins, 74 Ill. 482. In that case the sureties signed the official bond of a State grain inspector. At the time of the signing of the bond it was not the duty of the inspector to collect and take care of any moneys; After the signing of the bond the duty of collecting and taking care of certain fees was imposed by law upon the inspector. The Supreme Court held that when the sureties signed the bond of the inspector they had no reason to anticipate that he would thereafter be given by law the power of collecting and controlling moneys, and that therefore “it follows it cannot be held within the contemplation of the parties in executing the bond that they were assuming any liability on that account.” In the present case, the conservator had the right to collect moneys; in fact all the moneys that came into the possession of Eiggle were received by him prior to the death of his ward.

We have carefully considered all of the cases cited by the counsel for the defendants in support of their contention that the duties imposed upon the conservator by the amendment to section 9 were not fairly appropriate and germane to the office, and in our judgment none of the cases cited support the contention of, counsel.

It is clear from a reading of the amendment to section 9 that the legislature intended, by that act, to merely continue the office of conservator. It is also apparent that the lawmakers of - the State were of the opinion that the additional duties imposed upon the conservator by the amendment were fairly appropriate and germane to the office, else they would have provided for the giving of a new bond by the conservator before he commenced upon the duties imposed upon him by the amendment. In this connection it must be borne in mind that, no matter how varied or onerous the new duties imposed upon the conservator by the amendment may be, the sureties will not be discharged from further responsibility for the acts of the said official, provided the new duties are fairly appropriate and germane to the office. To excuse the sureties, the new duties must essentially change the nature and character of the office.

The office of a conservator, under our laws, is a most important one. Some idea of its numerous and varied duties and the fiduciary character of the position may be gathered from a reading of chapter 86, Hurd’s R. S., J. & A. 7246 et seq. The duties of a conservator, when he administers upon the estate of his deceased ward, under the amendment to section 9, are of a very much more restricted kind. As conservator, before the death of his ward, it is his duty to maintain and keep up the interests of his ward; in a certain sense, he stands in the shoes of his ward. After the death of the ward it is his duty, under the amendment, to close up the estate and to account to the proper parties for his stewardship. The amendment puts no additional estate into the hands of a conservator; it merely gives him the additional power to close up an estate that he already has the possession and control of. The same court has jurisdiction of the conservator before and after the death of his ward. Counsel for the defendants urge that the amendment increases the life of the office. Under the law, prior to the amendment in question, the conservator was required at the expiration of his trust to “pay and deliver to those entitled thereto all the moneys, estate and title papers in his hands as conservator, or with which he is chargeable as such, in such maimer as shall be directed by the order or decree of any court having jurisdiction thereof.” It will be noticed that no definite time is fixed in which the conservator is to pay and deliver over. Prior to the amendment in question, in case a contest arose as to who had the right to administer on 'the estate of a deceased ward, the office of the conservator might have been continued indefinitely. The conservator, upon the death of his ward, and during the said contest, could not abandon the estate, but it would be his duty to take care of it until he was ordered by the court to deliver it up to those entitled to it. It has been determined by our Supreme Court in the case of Lang v. Friesenecker, supra, that the amendment to section 9 gives the conservator of an insane or distracted person the first right to administer the estate of his deceased ward. The amendment, therefore, tends to fix more definitely the possible life of the conservatorship. While the case of Lang v. Friesenecker, supra, does not control the question as to whether the duties imposed by the amendment were fairly appropriate and germane to the office, it has some bearing on the question. In that case, the appellants contended that the amendment to section 9 was unconstitutional, for the reason that it contravened that part of section 13 of article 4 of the Constitution of 1870, which reads as follows: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” The position of the appellants was that the amendment to section 9 conferred duties upon the conservator that were not germane to the duties imposed by the original section. The Supreme Court held that the duties conferred upon the conservator by the amendment had relation to the duties of the office of a conservator, and that the matter contained in the amendment was germane to the subject-matter of the original section.

Counsel for the defendants insist that the conservator, Biggie, after the death of his ward, filed a just and true account in the Probate Court, as “conservator acting as administrator,” in which account he charged himself, as “conservator acting as administrator,” with all the funds belonging to the ward, and that the Probate Court approved this account, and that thereby (counsel contend) the sureties on his bond were released from any liability for the future acts of Biggie. We cannot subscribe to this contention. Assuming that Biggie intended, by his said conduct in filing the account in question, to assume the duties of a new office, nevertheless, we hold that his said action and the action of the court in approving said account did not have the legal effect of creating a new office; nor did it have the effect of releasing the sureties from responsibility for the future conduct of Biggie. It would be unreasonable to hold that the mere act of the conservator in charging himself, as “conservator acting as administrator,” with the money chargeable against him as conservator would effect a discharge of the sureties in this case, nor can we hold that the action of the court in approving the said account would produce such a result. As the legislature did not intend by the amendment to create a new office on the death of the ward, the said action of Biggie and the said action of the court cannot produce a result contrary to the intent of the amendment. We hold that the account in question amounted to no more than an account of Biggie as conservator.

As was said by Mr. Justice Trumbull in the case of Governor v. Ridgway, supra, it is not the policy of the law to allow sureties in the official bonds of persons holding offices created by law to be discharged by every change of the laws relating to the duties of these officials. Many of the states have passed statutes to the effect that every official bond is obligatory upon the principal and sureties thereof for the faithful discharge of any duties which may be required of such official, by any law passed subsequently to the execution of such bond, although no such condition is expressed in the bond. Many of the upper courts have held that the sureties in official bonds must take cognizance of the fact that the ever changing circumstances of the country require legislative action, modifying and changing from time to time the duties of public officers. Nor can it be said that such a rule is a serious peril to sureties on the bonds of public officials in this State. Under section 10, chapter 103, Hurd’s B. S. (J. & A. 7893), whenever a surety upon the official bond of any public officer desires to be released from such bond, he may speedily do so by taking a few simple steps to bring about this result. At the time the sureties on the bond in' the present case signed the instrument, section 15 of chapter 103, Hurd’s B. S. (J. & A. ft 7901), was in full force and effect. By this section a surety on the bond of a conservator is given the right, at any time, to be released from any further liability upon such bond. The amendment to section 9 was passed June 7,1895, but was not in force and effect until July 1, 1895. The defendants in this case are presumed to know of the passage of this act. It clearly apprised them that new duties had been imposed upon conservators, and that an additional or new bond was not required of a conservator for the faithful performance of these new duties. The sureties in the present case allowed the conservator to perform the new duties and they did not see fit to exercise their right to withdraw from the bond. Biggie continued to act as conservator until his death, August 20, 1908. In view of all the circumstances, can it be fairly said that the duties imposed upon the conservator by the amendment were imposed without the knowledge and consent of the sureties?

After a full and careful consideration of the question, we have arrived at the conclusion that the duties imposed upon the conservator by the amendment to section 9 were fairly appropriate and germane to the office of a conservator and that they did not “essentially change the nature and character of the office.” It is admitted that Biggie did not pay and deliver to those entitled thereto all the moneys in his hands belonging to the estate of Savage, deceased. The sole defense of the defendants in the lower court was that Biggie at the time he assumed the duties imposed upon him by the amendment had in his hands all the moneys belonging to the estate of his deceased ward, and that this fact absolved the sureties on his bond from responsibility for his future conduct. The trial court adopted this view of the law and entered judgment for the defendants. In this he erred. We are satisfied that, under the law and the admitted facts in the case, the defendants are responsible to the plaintiff for whatever sum the said Biggie may be indebted to the estate of Savage, deceased.

The judgment of the Circuit Court of Cook county will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Gertrude Petersen Storm, Plaintiff in Error, v. Cigar Makers’ International Union of America, Defendant in Error.
    Gen. No. 19,223.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Rehearing denied June 8, 1914.
    Statement of the Case.
    Action by Gertrude Petersen Storm against Cigar Makers’ International Union of America to recover for death benefits claimed by plaintiff to be due her from defendant by reason of the death of her brother, Christian Petersen, who in his lifetime was a member in good standing of the defendant Union. To reverse a judgment in favor of the Union, plaintiff prosecutes error.
    Christian Petersen became a member of the Union on July 9, 1892, and was a member in good standing at the time of his death, December 6, 1906. Plaintiff, at the time of his death, lived in Chicago and she claims she did not hear of his death until December, 1908. On December 24,1908, she made a claim in writing to the defendant Union. The present suit was commenced on March 5, 1912.
    When Christian Petersen became a member of the Union all that was issued to him was a membership card and due book in words and figures as follows:

      11 Cigar Makers’ International Union 68310
    Union No. 14 of Chicago 651
    Initiated July 9, 1892, M. C. Petersen
    A. E. Abeloff, President.
    H. G-. Hauok, Pin. Sec’y.”
    At this time, the constitution of the said Union then in force provided inter alia, for a death benefit in words and figures as follows:
    “ARTICLE X.
    Section 1. That upon the death of a member who shall have been such for one year the sum of $50 shall be paid toward defraying funeral expenses of said member to the nearest of kin or such person or persons as have the burial of said deceased member in charge; but if such member should not have any person to take charge of said funeral, the President of the local union shall take charge of the burial of said deceased member; provided however, that said member has not been at the time of his death disqualified by any of the conditions prescribed by the laws of the International Constitution.
    Section 2. That upon the death of a member who has been such for five consecutive years the sum of $200 shall be paid by the International Union to his wife or nearest of kin, or legatee, and that upon the death of a member of ten consecutive years the sum of $350 shall be paid to the wife, nearest of kin or legatee ; and that upon the death of a member of fifteen years standing $550 shall be paid as provided above. This sum 'shall include the $50 provided for funeral expenses in section 1.”
    Abstract of the Decision.
    Insurance, § 859

      —when claim for death benefits barred by Five-year Statute of Limitations. The contract between a member of a Union and the Union in this case held an oral one and therefore governed by the Five-year Statute of Limitations.
    Joseph O. McKiernan, for plaintiff in error; John J. Sonsteby, of counsel.
    Eugene Clifford, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Gertrude M. Seehausen, Appellee, v. Oscar Seehausen, Appellant.
    Gen. No. 19,243.
    (Wot to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Petition by Oscar Seehausen praying to have a decree of divorce in favor of Gertrude M. Seehausen, his divorced wife, modified with respect to the weekly allowance which the decree required the husband to pay during the life of the wife and so long as she remained unmarried. The allowance to be paid per week was fifty dollars, which was decreed to be in fnll satisfaction of permanent alimony and in lieu of all dower and homestead rights, claims and demands of the wife by virtue of the marriage. The court sustained a special demurrer to the petition and the petition was dismissed for want of equity. To reverse the order, petitioner appeals.
    Abstract of the Decision.
    1. Divobce, § 110

      —jurisdiction to modify decree awarding weekly allowance in lieu of alimony. Where a court grants a divorce in favor of the wife and the decree ordered that in lieu of permanent alimony the husband should pay a certain weekly allowance to the wife for life and so long as she remains unmarried, the court has power thereafter to modify the decree on petition of the husband showing that the circumstances and needs of the parties have materially changed since the entry of the decree.
    2. Divoboe, § 108*—when petition for reduction of weekly allowance presents prima facie case. Where a petition by a divorced husband to have a decree of divorce modified, by reducing the amount of the weekly allowance ordered to be paid to the divorced wife in lieu of permanent alimony, alleged that since the time the decree was entered his business had failed and he was without employment and had no property of any kind and that the divorced wife was the owner of a farm and amply able to care for herself out of her personal estate, held that the petition stated a prima facie case for relief and that the court erred in sustaining a special- demurrer thereto and dismissing the petition.
    Stein, Mayer & Stein, for appellant.
    No appearance for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The Merchants’ Loan and Trust Company, Administrator, Appellant, v. Stella Pease Hulette, Executrix, Appellee.
    Gen. No. 19,257.
    (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 March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Statement of the Cáse.
    Proceeding for the allowance of a claim against Stella Pease Hulette, executrix of the last will and testament of Arthur B. Pease, deceased, in favor of The Merchants’ Loan and Trust Company, administrator with the will annexed of the estate of Joseph H Willets, deceased. It appeared that Willets for a number of years had from time to time turned over sums of money to Arthur Pease to be invested in notes secured by trust deed and that Pease had so invested the money and had failed in his lifetime to account to Willets for the proceeds of the notes. The Probate Court allowed the claim as a seventh class claim and on appeal to the Circuit Court the claim was allowed as of the same class. The claimant, contending that the claim should have been allowed as a claim of the sixth class, appeals.
    McCulloch & McCulloch, for appellant.
    Harris F. Williams and Chytraus, Healy & Frost, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Executors and administrators, § -326 —when claim, against estate does not belong to sixth class. A claim against an estate for the proceeds of notes secured by trust deeds, where the money had been turned over to the deceased in his lifetime for such investment, held properly allowed as a seventh class claim instead of a sixth class claim for the reason that the facts did not establish an express or technical trust.

2. Executors and administrators, § 326*—word “trust” in statute relating to classification of claims construed. The word “trust” in clause 6 of section 70, ch. 3, Hurd’s R. S., J. & A. V 119, relating to the administration of estates, applies only to technical or express trusts and has no application to trusts which the law implies as growing out of contracts.

3. Costs, § 67*—when statutory damages for prosecuting appeal for delay not alloioable. Statutory provisions relating to appeals prosecuted for delay will not be enforced where it appears that the appeal was argued in good faith, and the court cannot say that the appeal was prosecuted for delay.


text:
    Charles Ford Langworthy, Appellant, v. Stella Pease Hulette, Executrix, Appellee.
    Gen. No. 19,258.
    (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 March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    The parties conceded that the decision in this case is controlled by the decision in Merchants’ Loan & Trust Company v. Hulette, reported on page 161, ante. For the reasons stated in the opinion in that case, the judgment is affirmed. ■

      McCulloch & McCulloch, for appellant.
    Harris F. Williams and Chytraus, Healy & Frost, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    James Ryan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,280.
    (Bot to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Action by James Byan against City of Chicago to recover damages claimed to have been sustained by plaintiff as the result of personal injuries received by him from a fall on a public sidewalk on Grand avenue in the City of Chicago. It appeared that the sidewalk where the injury occurred consisted of five flagstones, each about five ft. by ten ft., that there was a complete break across the middle of one of the stones so that each half sloped towards the break, that the sidewalk at one end of the break was about two inches below the general level of the walk and that at the other end of the break it was about four inches below the general level. The accident happened when it was dark and there was a brisk wind. Snow had fallen and was still falling at the time of the accident, and all depressions on the sidewalk had been covered by the snow. Plaintiff while walking along the sidewalk at such point struck his foot in the deep end of the break and tripped and fell heavily to the sidewalk, striking on his right leg, his right thigh and his right side and sustained serious injuries. From a judgment in favor of plaintiff for $12,700, defendant appeals.
    Abstract of the Decision.
    1. Municipal cobpobations, § 1223

      —retroactive effect of statute requiring notice to city of personal injuries. Section 7, ch. 70, Hurd’s R. S., J. & A. f 6190, providing for notice to the City of personal injuries, held not to apply to injuries sustained before the act went into effect.
    2. Municipal cobpobations, § 1063*—when pedestrian not negligent as matter of law. Where a pedestrian knows of the defective condition of a sidewalk and walks thereon, his doing so with such knowledge is not negligence per se as a matter of law.
    3. Appeal and ebeob, § 1241*—when party cannot complain of his adversary’s instructions. A party cannot complain of instructions given for his adversary where his own instructions given are chargeable with the same fault.
    4. Municipal cobpobations, § 1084*—defenses in suit for injuries resulting from defective sidewalk. In an action against a City for personal injuries alleged to have been caused by failure of the City to keep a sidewalk in good and safe repair, a defense that the City is not liable unless the method and plan of construction was dangerous, as a matter of law, cannot be considered.
    William H. Sexton and N. L. Piotrowski, for appellant; David R. Levy, of counsel.
    Aaron R. Eppstein, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Harry O. Whitlock, Appellee, v. Jessie Nickerson Whitlock, Appellant.
    Gen. No. 19,288.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Divorce, § 46

      —when finding that wife was guilty of adultery sustained by the evidence. On bill by the husband for divorce charging the wife with adultery, a finding of the chancellor that the wife was guilty of adultery held sustained by the evidence.
    2. Divorce, § 17*—what does not constitute recrimination. Where it appears that the party seeking a divorce on the ground of extreme and repeated cruelty has been guilty of adultery, she will not be granted a divorce and the fact that the husband has been guilty of extreme and repeated cruelty is not a sufficient recriminatory defense to a bill by him for divorce on the ground of adultery.

      Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Bill by Harry 0. Whitlock against Jessie Nickerson Whitlock for divorce charging defendant with having committed adultery with a certain person named in the bill. Defendant filed a cross-bill for divorce charging complainant with extreme and repeated cruelty. Answers were filed to said bill and cross-bill by the respective defendants thereto, denying the material allegations therein. The chancellor found defendant guilty of the charge of adultery and a decree was entered granting complainant a divorce and dismissing the cross-bill for want of equity. From the decree, defendant appeals.
    David K. Tone, for appellant; William E. and Lewis F. Mason, of counsel.
    Short, Davis & Rust, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


author: Per Curiam.

text:
    City of Chicago, Defendant in Error, v. Attilio Braggio, Plaintiff in Error.
    Gen. No. 20,226.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 21, 1914.
    Rehearing denied June 3, 1914.
    Statement of the Case.
    Motion by City of Chicago to strike from the record the statement of facts filed by Attilio Braggio on an appeal from a judgment of the Municipal Court. It appeared from the transcript of the record that the action was brought to recover a penalty for the violation of an ordinance of the City of Chicago forbidding the sale of cigarettes to minors, that personal service was had upon the defendant, that a verdict was returned finding the defendant guilty and assessing a' fine of twenty-five dollars, that a judgment was entered on the verdict on January 13, 1914, and that on February 13, 1914 the judge, before whom the case was tried, signed and placed on file a correct statement of facts.
    Cairoli Gigliotti, for plaintiff in error.
    W. H. Sexton and J. S. McInerney, for defendant in error.

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

   Per Curiam.

Abstract of the Decision.

1. Municipal Court of Chicago, § 26 —when statement of facts may he stricken. On writ of error to reverse a judgment of the Municipal Court, the statement of facts may be stricken from the record on motion of the defendant in error, where the record does not show that application for such statement was made within thirty days after the entry of the judgment and it affirmatively appears that the statement was not signed by the judge or placed on file by him until thirty-one days after the judgment was entered.

2. Municipal Court of Chicago, § 26*-—computation of time for making application for statement of facts. Where the thirty days allowed by section 23 of the Municipal Court Act, J. & A. j[ 3335, within which to make application for a statement of facts, expires on Lincoln’s birthday, such day must be included in the computation where it does not fall on Sunday.

3. Time, § 1*—when Lincoln’s birthday is not to be excluded in computing time. Section 1, ch. 131, Hurd’s R. S., J. & A. j[ 11102, providing that “the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, then it also shall be excluded,” does not permit Lincoln’s birthday to be excluded as a last day unless it falls on Sunday, since the statute making that day a holiday has reference only to negotiable instruments.


author: Mr. Presiding Justice Baker

text:
    Delta & Pine Land Company, Appellee, v. Silas W. Sherwood and Arthur F. Stillson, Administrators, Appellants.
    Gen. No. 19,301.
    1. Interpleader, § 18*—when interpleader not required to pay interest during litigation. On bill of interpleader, held that the court properly refused to compel complainant to pay interest on the fund during the litigation, where the fund had been deposited in a bank under an order of the court and the bank allowed and the parties in interest received interest at the rate of three per cent.
    2. Interpleader, § 19*—when order as to costs of accounting before master proper. On bill of interpleader, held that the order as to the costs of accounting before the master was proper.

      3. Interpleader, § 19

      —solicitor’s fees. On bill of interpleader, the interpleader cannot be allowed solicitor’s fees.
    4. Costs, § 52*—right to allowance of attorney’s fees. A court cannot allow solicitor’s fees in the absence of a statute authorizing it.
    5. Appeal and error, § 1197*—when allowance of solicitor’s fees in a former decree cannot he questioned. On appeal from a decree entered on a bill of interpleader, held that appellants could not question the allowance of solicitor’s fees to the interpleader in a former decree, where such decree was final and had been appealed from, but the appeal was dismissed for failure to file a transcript of the record.
    6. Equity, § 453*—conclusiveness of consent decree. Parties consenting to a decree on a bill of interpleader allowing the interpleader solicitor’s fees cannot be heard to question its propriety.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Modified and affirmed.
    Opinion filed May 25, 1914.
    Steere & Steere and Edwin White Moore, for appellants.
    William S. Elliott, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the administrators of Henry F. Benton and the executor of the will of Susan D. Benton from a decree in a suit begun by the filing by appellee of a bill of interpleader February 19, 1903. George 0. Benton in June, 1902, a short time before his death, transferred to his brother Henry F., 950 shares, to Alfonso L., a brother, 50 shares, and to Charles W- Ward as trustee for his daughter, the granddaughter of George C. Benton, 1000 shares of the capital stock of the Delta and Pine Land Company. The persons to whom the stock was so transferred each question the validity of the transfers other than the one to himself, the widow of George C. Benton questioned the validity of all of the transfers, and each gave notice to the corporation not to pay dividends to any of the other parties. The corporation then filed the hill of interpleader making the persons to whom stock had been transferred, the executor and the widow of George C. Benton, defendants. The complainant in the bill was a Mississippi corporation, the owner of lands in that State which it was selling for part cash and part interest bearing notes and distributing the money and notes received for land sold among its stockholders as dividends. The bill alleged that December 31, 1902, the directors declared a dividend of $32 per share, $10 in cash and $22 in mortgage notes of third parties; that complainant was willing to pay the dividends on said shares of stock to the persons lawfully entitled to receive the same, and offered to bring the same into court, as the court might direct. The differences between the defendants were all compromised and adjusted. Alfonso L. Benton filed a disclaimer.

This appeal presents for our consideration three questions:

First. Should complainant be compelled to pay interest on funds in its hands during the litigation?

Second. Did the court properly order that the costs of the reference, exclusive of the costs made in the petition of Shedd for compensation, be paid, one-fourth by the executor of Susan D. Benton and three-fourths by the administrators of Henry F. Benton, they being the unsuccessful contestants in said matter, and the proportions of one-fourth and three-fourths being the respective proportions of their interests in the fund involved in the accounting?

Third. Did the court err in allowing $1,250 to the complainant for its solicitor’s fees?

June 29, 1903, on motion of the defendants other than Henry F. Benton, and against his objection, it was ordered that “the complainant deposit the money and notes alleged in the bill of complaint herein in the Federal Trust and Savings Bank, to be held by said bank subject to the order of the Court.” September 22, 1904, an order was entered in the cause reciting that an additional dividend amounting to $21,569.19 had been declared by complainant since the order of June 29, 1903, was made; that the parties to the suit desired that the money be deposited in a responsible bank that was willing to pay interest thereon until the termination of the suit, and ordering by agreement of parties that complainant deposit with said Federal Trust and Savings Bank all cash dividends on the stock in controversy then in the hands of complainant. A similar order was made March 5, 1905, as to an additional dividend of $4,938.20. July 7, 1905, a decree was entered reciting that the Federal Trust and Savings Bank was then the American Trust and Savings Bank, and that it appeared to the court that the complainant had from time to time deposited in said bank the. dividends declared, “subject to the further order of the court,” and it was ordered that complainant deposit in said American Trust and Savings Bank all future dividends on said shares of stock. The complainant deposited in the banks mentioned in the orders all the cash dividends declared by it, and was paid and accounted for interest thereon at the rate of three per cent. The money collected on notes it deposited in the bank and took for each deposit a certificate of deposit, on which it was also paid and accounted for interest at three per cent. The orders were not carefully drawn, the money was to be deposited in the bank subject to the order of the court, but in whose name was not stated. The treasurer of complainant told the officers of the bank that the money was deposited subject to the order of the court and gave the bank a copy of the orders. . Complainant had no other account with either of said banks, and the money was kept separate from the funds of complainant. No part of the money deposited was withdrawn until the court ordered it withdrawn after the controversy between the defendants had been adjusted.

We think the court properly refused to compel complainant to pay interest on the funds so deposited, on which the banks allowed and the parties in interest received interest at the rate of three per cent.

We also think that the order as to the costs of the accounting before the master was proper.

In Chapin v. Dake, 57 Ill. 295, the Fifth National Bank of Ckieag’o drew and delivered to the payee two drafts on a New York bank for $1,000 each, payable to the order of Dake. Dake indorsed and delivered the drafts to Donaldson, who delivered the same to Chapin and Gore. Dake filed a bill against Donaldson, Chapin and Gore and the Fifth National Bank to have the indorsements cancelled and the drafts delivered to him on the alleged grounds that the drafts were lost by him by gaming and subsequently came into the hands of Chapin and Gore as indorsers. The bank filed a cross-bill of interpleader. The court on the final hearing decreed that the bank pay into court for the use of Dake the sum of $2,000, less $100 for solicitor’s fees, and that on making such payment it should be released from all liability on the drafts. From this decree an appeal was taken to the Supreme Court. In the opinion in that court it was said: “On the cross-bill of the Fifth National Bank, it should not have been allowed $100 solicitor’s fees, but only its costs. It should have paid an additional $100 into court.” The rule that an interpleader cannot be allowed solicitor’s fees is clearly stated in the case cited, and the rule so stated has not been modified by any subsequent decision of the Supreme Court. The rule in this State is that the court cannot allow a solicitor’s fee in the absence of a statute authorizing it to do so. This was the rule in partition cases before the statute of 1869. Adams v. Payson, 11 Ill. 26; Eimer v. Eimer, 47 Ill. 373; Campbell v. Campbell, 63 Ill. 502. See also Constant v. Matteson, 22 Ill. 546; Wilson v. Clayburgh, 215 Ill. 506; Modern Woodmen of America v. Conner, 129 Ill. App. 652.

The practice of allowing to an interpleader solicitor’s fees has been common in the courts of this county, but on the authority of Chapin v. Dake, supra, we hold that there is no authority for making such allowance.

There were three allowances of solicitor’s fees to the interpleader in this case. The first, of $500, was made in the' decree entered July 7, 1905. This was a final decree declaring the right as between complainant and the defendants, directing complainant to file a statement of dividends declared and deposits made, and to deposit in the American Trust and Savings Bank all future dividends, and directing that the defendants interplead and adjust their several claims as between themselves. The decree directed that complainant’s costs, including a solicitor’s fee of $500, be paid to complainant out of the fund in its possession. From this decree, Henry F. Benton appealed to this court and his appeal was dismissed for failure to file a transcript of the record. Benton v. Delta & Pine Land Co., 129 Ill. App. 341. We think that the appellants cannot on this appeal question the allowance of solicitor’s fees made in the decree of July 7, 1905.

The allowance of $250 for solicitor’s fees to complainant was made in the decree entered November 11, 1007. On the same day this order was entered:

“Upon agreement of all parties, it is ordéred that the American Trust & Savings Bank be authorized and empowered to pay to the Delta & Pine Land Co. the sum of $250 as allowed by the decree entered herein on November 11, 1907.”

The order having been made by consent of appellants, they cannot be heard to question its propriety.

The decree appealed from entered October 21, 1912, makes a further allowance to complainant of $500 for solicitor’s fees. This allowance, as has been said, we regard as unauthorized and improper.

The court, in accordance with the stipulation of the parties, found and decreed by the decree of November 4, 1907, that of the remainder of the dividends declared on the stock and deposited in accordance with the orders of the court, Henry F. Benton was entitled to three-fourths and Clarence A. Tuttle, as executor of Susan D. Benton, to one-fourth; that the undistributed funds were in the Continental and Commercial Savings Bank, the successor to the American Trust and Savings Bank.

The decree appealed from will be modified by striking out therefrom the order that the sum of $500 be allowed and paid to complainant, and adding an order that the said Continental and Commercial Savings Bank pay three-fourths of said $500, with interest at three per cent, per annum from the date of the decree, to Silas W. Sherwood and Arthur S. Stillson as administrators of the estate of Henry F. Benton, deceased, and the remaining one-fourth thereof, with interest at three per cent, per annum from the date of the decree, to Clarence A. Tuttle, executor of Susan D. Benton, deceased, and as so modified the decree will be affirmed. Each party to this appeal will pay the costs made by such party on the appeal.

Decree modified and as modified affirmed. Each party to pay the costs made by such party on the appeal.


text:
    Manufacturers Mercantile Company, Appellant, v. Monarch Refrigerating Company of Chicago, Appellee.
    Gen. No. 19,383.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Manufacturers Mercantile Company, a corporation, against the Monarch Refrigerating Company of Chicago, a corporation, in trover. The decision in the case turned on the question whether certain warehouse receipts were negotiable or non-negotiable. From a judgment in favor of defendant, entered on a directed verdict, plaintiff appeals.
    Abstract of the Decision.
    Appeal and ebbob, § 1818

      —when decision on former appeal binding on second trial. Where the Appellate Court on a former appeal decided that certain warehouse receipts were non-negotiable and reversed the judgment and remanded the cause, held that the action of the court on the second trial in directing a verdict for the defendant on the ground that the decision on the former appeal was binding, was proper where the evidence was substantially the same on both trials and the differences were unimportant and did not affect the controlling question in the case.
    The cause was before the Appellate Court on a former appeal in 169 Ill. App. 562, and a judgment for plaintiff was reversed and the cause remanded.
    West & Eckhart, for appellant.
    Mancha Bruggemeyer, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. John D. Rowe, Plaintiff in Error.
    Gen. No. 19,472.
    (Not to be reported in full.)
    Abstract of the Beclsion.
    1. Municipal cobpobations, § 865

      —when instruction on degree of proof to establish violation of ordinance proper. In an action to recover a penalty for violation of a city ordinance, an instruction telling the jury that in arriving at their verdict before they could find the defendant guilty they must do so by a clear preponderance of the evidence, held not improper.
    2. Penalties, § 14*—degree of proof in suit to recover. In actions to recover a penalty for the violation of an ordinance or statute there must he more than a mere preponderance of the evidence, hut it is not necessary that the evidence should establish the violation beyond a reasonable doubt. To warrant a verdict for the plaintiff there must be a clear preponderance of the evidence in favor of the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by the City of Chicago against John D. Bowe to recover a penalty for a violation of an ordinance of the City of Chicago in relation to disorderly conduct. To reverse a judgment in favor of the City for one dollar and costs, defendant prosecutes a writ of error.
    J. S. McClure, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Wabash Canning Company, Defendant in Error, v. William H. Nicholls, trading as William H. Nicholls & Company, Plaintiff in Error.
    Gen. No. 19,497.
    1. Sales, § 65

      —when sale is not hy sample only. Where a contract for the purchase of peas described the peas as “Fancy Alaska Peas” and also contained the words “like samples submitted,” a holding that the sale was by samples only and that the seller was entitled to recover damages for refusal of the buyer to accept them on proof they were the same as samples, although the peas tendered were not “fancy peas,” held erroneous.
    2. Sales, § 249*—when goods must he equal to sample and answer description. Where goods are sold both by sample and description they must not only be equal to the sample, but must also be of the kind described.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 25, 1914.
    Matz, Fisher & Boyden, for plaintiff in error; Mechem & Bangs, of counsel.
    Elbert C. Ferguson, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

The contract between the parties in this case was made by a sold note signed by the broker of the plaintiff which, omitting matters not material to be considered, is as follows:

“Indianapolis, August 3, 1911.
gold to W. H. Nicholls & Co., Chicago, Ill.
For Account Wabash Canning Co., Wabash, Ind. About 1200c/s (2 doz. each) #2 can #3 sieve Fancy Alaska Peas at $1.25 per dozen, like samples submitted.”

The plaintiff, the Wabash Canning Company, tendered in due time the quantity of peas sold to defendant, who refused to accept the same on the alleged ground that they did not conform to the sample delivered nor to the description contained in the contract of sale. Plaintiff sued for and recovered the damages claimed to have resulted from such refusal, and the only ground of reversal urged by plaintiff in error is that the peas tendered did not conform to the terms of the contract of sale. The cause was tried by the court without a jury and the court held that the sale was a sale by sample only and that the plaintiff was entitled to recover although the peas tendered. were not fancy peas” as the court found the word ‘‘ fancy ’ ’ was used in the trade.

The determination of this case depends on the construction to be given to the sold note which expresses the terms of the sale. The contract was executory and was for the sale of 1,200 cases, 2 dozen each, of 2 lb. cans of No. 3 sieve, “Fancy Alaska Peas,” and was a sale of peas by a particular description. If the words “like samples submitted” had not been in the sold note, the sale would have imported a warranty that the peas were of the description of “Fancy Alaska Peas,” or, observing the distinction made by Lord Abinger in Chanter v. Robbins, 4 M. & W. 399, approved by Lord Blackburn in Shand v. Bowen, 2 App. Cas. 480, the contract would have been to sell peas of that description, Gould v. Stein, 149 Mass. 570-574, and cases there cited. The contention of defendant in error is that because of the provision in the sold note that the peas thereby sold should be “like samples delivered,” plaintiff was only required to deliver peas “like the samples delivered,” and could recover, although they did not conform to the description of “Fancy Alaska Peas.” With this contention we are unable to agree. In 2 Meechem on Sales, sec. 1331, it is said that where goods are sold both by sample and description, it was held that they must not only be equal to the sample, but must also be of the kind described. In Williston on Sales, sec. 226, it is said: “That by incurring the obligations of a seller who makes a contract to sell by sample, a seller does not exclude the obligations of one who contracts to sell or sells by description, if the terms of the bargain included a description as well as a sample.” See to same effect: Drummond v. VanIngen, 12 App. Cas. 284; Gould v. Stein, supra; Nichols v. Godts, L. R. 10 Exch. 191.

In Bach v. Levy, 101 N. Y. 511, the sold note recited a sale of Connecticut seconds tobacco guarantied to be like samples. The tobacco was not Connecticut tobacco, and it was held that the purchaser was not only entitled to tobacco of like grade with that sample, but of the kind he contracted for; that the representation that the tobacco was Connecticut tobacco, whether strictly a warranty or not, was part of the agreement, and it was broken because the tobacco delivered did not answer the description of it contained in the contract.

In support of the contention of defendant in error, counsel cite and rely on De Witt v. Berry, 134 U. S. 306; Carson v. Baillie, 19 Pa. 378 and Sweet v. Colgate, 20 Johns. (N. Y.) 196, IP Am. Dec. 266. The decision against the buyer in De Witt v. Berry, supra, was placed on the ground that the seller did not, by the terms of the contract of sale, agree to deliver articles known to the trade by certain names and of a certain standard quality; that the sentences relied on by the buyer to show such agreement were nothing but stipulations as to the price and were not intended to fix quality. In Carson v. Baillie, supra, it was held that the goods were sold on inspection and that there was no standard but identity and no warranty implied other than that the identical goods sold, and no others should be delivered. In Sweet v. Colgate, supra, the sale was by auction, the buyer saw and inspected the articles sold before the sale and a sample was exbibited at the time of the sale. The article sold conformed to the sample, but was kelp and not barilla, the article mentioned in the bill of parcels, and the decision in favor of the seller was on the ground that the statement in the bill of parcels was an opinion and not a warranty; that there was no implied undertaking as to quality, but the buyer exercised his own judgment as to the article purchased and bought it at his own risk. In our opinion, no one of the cases cited supports the contention of defendant in error. The word “Alaska” means a variety or kind of pea, and it is not claimed that the peas tendered were not “Alaska” peas. The. controverted questions were whether they were “Fancy Peas,” within the meaning of those words as used in the contract of sale, and whether they were like the samples delivered. These questions we do not decide.

We think that the terms of the contract of sale included the description of “Fancy Alaska Peas” as well as that the peas should be like the sample delivered, and that the trial court erred in holding that the sale was a sale by sample only, and that the plaintiff could recover although the peas tendered were not “Fancy Peas” within the meaning of those words as used in the contract of sale.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas Lindskog, Defendant in Error, v. Conrad Seipp Brewing Company, Plaintiff in Error.
    Gen. No. 19,552.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. J. K. Prindiville, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Thomas Lindskog against the Conrad Seipp Brewing Company, a corporation, for attorney’s fees claimed to be due him in representing Laura Bobinson in the prosecution of a claim against defendant for personal injuries. Plaintiff had a contract with Laura Bobinson whereby he was appointed by her to represent her in prosecuting said claim against the defendant, and it was agreed that he should receive fifty per cent, of the gross amount realized on such claim if settled with his approval in writing, otherwise a reasonable sum of money for his services, “and at all events not to be less than said per cent.” Plaintiff gave the defendant proper notice of such contract. Miss Bobinson gave plaintiff notice that she did not require his services any longer and settled with defendant and was paid five hundred dollars in satisfaction of her claim. Plaintiff recovered a judgment against defendant for $250, To reverse the judgment, defendant brings error.
    F. J. Canty, for plaintiff in error; R. P. Garrett, of counsel.
    M. L. Igoe, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Attorney and client, g 150 —right of attorney to enforce lien for attorney’s fees. Where an attorney contracted with his client to prosecute a claim for personal injuries against a company and gave the company notice of his contract and the client thereafter settled with the company, held that the attorney could require the company to account to him in an action at law for the amount of his lien for attorney’s fees as provided by the contract.

2. Attorney and client, § 114*—contract construed as to amount of compensation. A written agreement between an attorney and his client whereby the client agreed that the attorney should be entitled to fifty per cent, on the gross amount realized on his client’s claim for personal injuries if settled with his approval in writing, otherwise a reasonable sum of money for his services,” and at all events not to be less than said per cent.,” construed to entitle the attorney to not less than fifty per cent, of the amount realized where the client dismissed him and herself settled the claim.


text:
    Joseph Binder, Defendant in Error, v. Mary A. Roberts, Plaintiff in Error.
    Gen. No. 19,603.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action in the Municipal Court by Joseph Binder against Mary A. Roberts. The original statement of claim is for an account stated for work done and materials furnished for defendant’s automobiles. The amended statement of claim is based on alleged fraudulent representations made by one Shea, whereby plaintiff accepted his note for the balance due for the work done and materials furnished on said automobiles. The allegations of the statements of claim were traversed by affidavits of defense. To reverse a judgment entered in favor of plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Fraud, § 111

      —sufficiency of evidence. In an action in the Municipal Court where the original statement of claim is for an account stated for work and materials furnished for defendant’s automobiles, and an amended statement of claim was based on alleged fraudulent representations made by a person who brought the machines to plaintiff’s shop, whereby plaintiff accepted his note for the balance due, held that a judgment in favor of plaintiff was not sustained by any evidence in the record tending to support the allegations of either the original or amended statement of claim.
    2. Payment, § 6*—when acceptance of third party's note constitutes payment. Where a person accepts a third party’s promissory note payable to his order in payment of a balance claimed to be due from another, such acceptance constitutes payment.
    Charles C. Spencer, for plaintiff in error.
    Ernest C. Reniff, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.