text:
    W. W. Hooper, Appellee, v. Edna Thoma, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mechanics’ liens, § 196

      —when decree sustained by the evidence. On bill to foreclose a mechanic’s lien for labor and materials furnished under a verbal contract, where the evidence was conflicting on the questions as to the number of hours of work furnished and as to whether the complainant was authorized to purchase the materials used at his own expense instead of having them charged to the defendant, a decree in favor of complainant, held sustained by the evidence.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Bill by W. W. Hooper| against Edna Thoma to foreclose a mechanic’s lien in the sum of $598.70 for labor and materials furnished under a verbal contract with defendant. The cause was referred to a special master and the master reported the evidence with a finding that complainant was entitled to a lien for $413.09. When the taking of the evidence was begun the defendant made a tender of $236.25 and the costs to that time. After the report of the master was filed, the complainant accepted the tender as part payment and upon the hearing before the court the report of the master was approved and a decree rendered in favor of complainant for the balance, $176.81. To reverse the decree, defendant appeals.
    J. E. Hogan, for appellant.
    J. L. Drennan and J. J. Burlington, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    B. B. Minor, Appellee, v. William Lynch, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Customs and usages, § 26

      —admissibility of evidence to prove custom. In an action to recover interest on advances made to a seller of grain, testimony of plaintiff that there was a custom between him and his customers in the locality of his elevator by which he advanced money on grain with the understanding that they would pay interest on the advances until the grain was delivered and that he had charged his customers seven per cent, interest, held incompetent.

      Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by B. B. Minor against William Lynch to recover a balance claimed to be due him. Plaintiff, a resident of Indianapolis, ran an elevator and bought grain at Muncie, Illinois, where defendant resided, and sold grain to plaintiff. The elevator was in charge of an agent of plaintiff. The items in dispute are: (1) An item of $37, being the difference in price of corn which defendant claims should have been credited to him; (2) several interest charges on the books of plaintiff against defendant; and (3) eight checks drawn to defendant and cashed by him, which defendant claims he paid cash for but which plaintiff claims were checks drawn as advances by his agent without authority. A verdict was returned in favor of plaintiff for $179.94, on which judgment was rendered and the defendant appeals.
    Rearick & Meeks, for appellant.
    A. B. Dennis, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Customs and usages, § 11 —when custom, is controlling. A custom to be controlling so far as to affect the rights and liabilities of parties in their dealings with each other must be shown to be certain, continuous and so well known as to induce the belief that the parties contracted with reference to it.

3. Customs and usages, § 9 —customs opposed to law. A custom cannot prevail against a well settled rule of law.

4. Evidence, § 297 —foundation for introduction of books of account. Sufficient foundation is laid for the introduction of plaintiff’s books in evidence where plaintiff testifies that the books were kept by his agent, since deceased, in the usual course of trade and of his duty and employment by the plaintiff.

5. Evidence, § 315 -—evidence incompetent to verify books of account. Testimony of a party that he had compared his books of account with monthly statements' made to him by his agent and found the books to be correct, held not competent evidence to verify the books of account.

6. Principal and agent, § 242 —evidence admissible to show extent of agent’s authority. An indemnity bond given by an agent to his principal is not competent evidence to show the extent of the agency, where the bond does not purport to be the agency agreement between the parties.

7. Evidence, § 273 —when checks admissible. In an action to recover advancements or loans made by plaintiff’s agent drawing checks in favor of defendant, held, that the checks were admissible in evidence to be considered with other evidence in determining whether defendant was indebted to plaintiff.

8. Interest, § 80 —when instruction allowing rate fixed by custom erroneous. In an action to recover interest on advances made to a seller of grain, an instruction permitting plaintiff to recover seven per cent, interest thereon if the jury should believe that there was a custom of plaintiff to charge seven per cent, interest, held erroneous and misleading in view of statute which fixes the rate at five per cent, on loans unless the contract is in writing.

9. Payment, § 5 —check as evidence. A check alone is not evidence of an indebtedness of the payee to the drawer of the check but presumptively is evidence of the payment of a debt to the payee, or that money was paid for it at the time.


text:
    John Doak, Appellant, v. Clyde Rhoads, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 361

      —claims upon which distress warrant must he predicated. A landlord has no right to issue a distress warrant unless predicated upon a claim for rent; he cannot recover for any other matter under such warrant.
    2. Appeal and error, § 1236

      —inconsistent positions. Appellant cannot insist upon a theory inconsistent with that taken by him in the trial court.
    3. Appeal and error, § 1088

      —when error assigned for admission or rejection of evidence not presented for review. Where the appellant points out no error in his statement, brief or argument on the admission or rejection of evidence, and no exceptions were taken to the instructions given by the court, no question of law is presented for review, and error assigned on the admission or rejection of evidence cannot be considered.

      Appeal from the Circuit Court of Edgar county; the 1-Ion. Morton W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Proceeding by distress warrant begun by John Doak against Clyde Rhoads to collect three hundred dollars claimed to be due for rent of a farm. Plaintiff claimed that defendant did not pay the rent for certain pasture land, that he owed for some hay, and claims that he sustained damages for failure of defendant to repair fences, and also damages for failure of defendant to plant eighteen acres to corn. From a judgment in favor of plaintiff for five dollars, defendant appeals.
    W. H. Clinton and Dyas & Dyas, for appellant.
    James K. Lauher and Stewart W. Kincaid, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

4. Appeal and error, § 1410 —when verdict will not he disturbed. A verdict will not be disturbed as against the weight of the evidence where it is based on conflicting evidence and there is no manifest preponderance of the evidence either way.


text:
    J. F. Comstock, Appellee, v. J. H. Keith and A. F. Keith, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Mason county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by J. F. Comstock against J. H. Keith and A. F. Keith to recover for services rendered in accompanying certain persons to Canada and procuring them to purchase four hundred and eighty acres of Canadian lands. The defendants were real estate agents for the land, and plaintiff, who was engaged in the real estate business, claims he performed the services at the request of the defendants. From a judgment in favor of plaintiff for four hundred and eighty dollars defendants appeal.
    I. B. Brown and Joseph E. Barnes, for appellants.
    Q-. E. Nelson and Clayton J. Barber, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 88 —when verdict in favor of subagent sustained by the evidence. In an action against real estate agents to recover for services rendered in procuring certain persons as purchasers of Canadian lands at the request of the defendants, where the defendants denied that they ever made such request, a verdict for plaintiff held sustained by the evidence.

2. Brokers, § 85 —admissibility of evidence. In an action by a real estate agent to recover for services in procuring for defendants, real estate agents, persons to purchase Canadian lands, permitting plaintiff to testify that he assisted such persons at the request of defendants in procuring loans, held not prejudicial error.


author: Mr. Presiding Justice Baker

text:
    Nicholas Nudelman, Plaintiff in Error, v. C. B. Haffenberg, Defendant in Error.
    Gen. No. 18,384.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habry Olson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Nicholas Nudelman, doing business as Nudehnan & Company, against C. B. Haffenberg to recover commissions as a real estate broker for procuring a purchaser for certain real estate. From a judgment in favor of defendant entered upon a directed verdict, plaintiff brings error.
    Blum & Blum, for plaintiff in error.
    B. B. Jampolis, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 6 —persons liable for commissions. Where a person employing a real estate broker does not profess to represent another hut makes the contract for himself alone, he is liable to the broker for commissions in case the broker finds a purchaser at the price and on the terms stated in the contract.

2. Brokers, § 93 —when direction of verdict for defendant is error. In an action to recover commissions for procuring a purchaser for real estate, where the evidence tended to show that plaintiff was employed by the defendant who did not profess to he acting as agent for another; that the plaintiff procured purchasers who made a deposit on a written contract with defendant, but the contract was afterwards cancelled at the request of one of the purchasers; and that the defendant thereafter sold the property at the same price to a third person, who immediately conveyed a half interest therein to one of the original purchasers and later conveyed to him the other half interest, held that a direction of a verdict in favor of defendant was error.


text:
    In re Petition of Louis M. Erb. On Appeal of Louis M. Erb, Appellant, v. William A. Pridmore, Appellee.
    Gen. No. 18,483.
    (Not to be reported in full.)
    Appeal from the County Court of Cook County; the Hon. John E. Owens, Judge, presiding.
    Hoard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Petition by Louis M. Erb by Ada M. Erb, bis wife and next friend, to the County Court for Ms release under the Insolvent Debtors’ Act. Petitioner was held in custody under a ca. sa. issued on a judgment in tort for one thousand dollars recovered against Mm by William A. Pridmore. From an order dismissing the petition, petitioner appeals.

      Abstract of the Decision.
    Executions, § 305

      —presumption in absence of bill of exceptions on appeal from order dismissing petition for discharge, Insolvent Debtors' Act. On appeal from an order dismissing a petition filed in the County Court under the Insolvent Debtors’ Act for release from custody under a ca. sa. issued on a judgment in tort, it will be presumed, in the absence of a bill of exceptions, that there was sufficient evidence to support the finding that malice was the gist of the action.
    George Remus, for appellant.
    Frank P. Sadler, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Thomas Osborn, Plaintiff in Error.
    Gen. No. 18,564.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henbt C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Complaint by City of Chicago against Thomas Osborn charging defendant with gambling in violation of Section 978 of the Municipal Code of Chicago. From a judgment finding defendant guilty, defendant appeals.
    Henry M. Seligman, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, Ulysses S. Schwartz and John Prystalski, of counsel.

      Abstract of the Decision.
    Gaming, § 73*—when evidence insufficient to show person guilty of bookmaking. On prosecution of a person for bookmaking in violation of the Municipal Code of Chicago, a verdict of guilty, held not sustained by the evidence, there being no evidence that any one made a bet with defendant or that a bet was made at the place named in the complaint.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Presidihg Justice Baker

text:
      W. H. McFadden, Defendant in Error, v. Union Stock Yards & Transit Company and Michigan Central Railroad Company, Plaintiffs in Error.
    Gen. No. 18,570.
    1. Cabriebs, § 110

      —measure of damages for delay in transportation. The measure of damages against a carrier for delay is the difference between the market price at the place of destination when the property should have arrived and the time it actually arrived.
    2. Cabbiers, § 250a

      —right to damages when stock is negligently aarried to wrong place and sold by owner. Where a carload of horses consigned to a certain place for sale is negligently carried to a different place, the owner has the right to accept the horses at the latter place; but by accepting the horses he does not thereby establish as the measure of his damages the difference between what the horses would have brought at the place they were consigned and what they would sell for at the place they were shipped.
    3. Cabbiers, § 248

      —sufficiency of evidence to sustain recovery where owner accepts and sells stock after being carried to wrong place. Where a railroad company carried a carload of horses to a place other than to which they were consigned for sale and the owner accepted the horses and sold them at such place, held in an action to recover the difference between what the horses sold for and what they would have sold for at the place they were consigned that the evidence was insufficient to sustain a judgment for plaintiff.

      Error to the Municipal Court of Chicago; the Hon. William C. De Wolf, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 2, 1914.
    Wihstoh, Paths, Strawh & Shaw, for plaintiff in error; Johh C. Slade, of counsel.
    Sohhehscheih, Berksoh & Fishell, for defendant in error.

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

   Mr. Presidihg Justice Baker

delivered the opinion of the court."

Thursday, June 22, 1911, plaintiff McFadden delivered at Chicago a carload of horses, of which he was the owner, to the defendant Railroad Company to he carried to Detroit, where he intended to sell them at the weekly auction sale the following Saturday. The defendant negligently sent the car to Buffalo. Plaintiff went to Buffalo and the following Monday accepted the horses from the defendant there and sold them at the regular weekly auction on that day. In an action in the Municipal Court, tried by the court, he recovered against the Railroad Company $639 damages. The basis of his claim for damages was that the horses would have brought in Detroit, Saturday, $4,500 to $4,600; that they brought in Buffalo, Monday, only $3,812.50, and that he incurred certain expenses.

The measure of damages against a carrier for delay is the difference between the market price at the place of destination when the property should have arrived and the time it actually arrived. Illinois Cent. R. Co. v. Cobb, Blaisdell & Co., 72 Ill. 148.

The fact that the defendant through negligence or mistake carried the horses to Buffalo did not release defendant from its contract to carry to Detroit. But every person may renounce so much of a contract as is for his own benefit and the acceptance by the defendant of the horses at Buffalo released defendant from future liability, in reference to the horses, but it did not release it from liability for damages already sustained by plaintiff. “Nothing is better settled than that, after an injury has been committed, the cause of action cannot be discharg'ed by anything short of a release, or the acceptance of something in satisfaction.” Angelí on Carriers, sec. 333.

There is in the record no evidence tending to show that the act of the plaintiff in accepting the horses at Buffalo and selling them there was judicious or that he disposed of them to the best advantage. There is no evidence as to the freight from Buffalo to Detroit, but there is evidence that the freight on a carload of horses from Chicago to Buffalo was $80.85. Neither is there any evidence as to the market value of plaintiff’s horses at Detroit the next sale day, Saturday, by which time the horses might have been returned from Buffalo to Detroit. As the owner of the horses, plaintiff had the rig*ht to accept them at Buffalo, but he could not thereby establish as the measure of his damages the difference between what the horses would have brought at Detroit, Saturday, and what they were sold for at Buffalo, Monday. He was bound, when he took possession of the horses, if he sold them, to sell them in the best market, to dispose of them to the best advantage and for the most advantageous price. Illinois Cent. R. Co. v. Cobb, Blaisdell & Co., supra.

In Laurent v. Vaughn, 30 Vt. 90, cited and relied on by the defendant in error, the plaintiff accepted peas shipped to New York at Burlington, Vermont, and sent them to Boston, where they were sold, and recovered the difference between what he received in Boston and what they would have brought in New York if there had been no delay. But the referee in that case found that the plaintiff “disposed of the peas in a judicious manner and for a price equal to what could have been realized for them if they had been sent to New York at the same time,” and the court based the judgment on such finding.

For the reasons indicated we think the evidence is wholly insufficient to support the finding and judgment, and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles H. Herman, Defendant in Error, v. The Foster & Reynolds Company, Plaintiff in Error.
    Gen. No. 18,615.
    1. Municipal Court op Chicago, § 29

      —when judgment may be sustained as a judgment in tort. A judgment of the Municipal Court may he sustained as a judgment in tort, if the evidence warrants such a judgment, although the statement of claim is in the form of an action on contract.
    2. Fraud, § 18

      —when party not liable for damages resulting from giving false information as to time boat sailed. A company engaged in selling railroad tickets and furnishing information to travelers, held not liable for damages resulting to tourist from false information as to the time a boat sailed from a certain port, where the company by its agent did not make the false assertion of its own knowledge and did not recklessly make a representation as to the time the boat would sail, not knowing or caring whether it was true or false and regardless of the injury which might ensue.
    3. Fraud, § 91

      —proof of false representations. In an action on the case for deceit for false representations, it is necessary to prove not only that the representation was false, but that the party -making it knew that it was false.
    4. Fraud, § 18

      —rule as to false representations. The rules that when a party falsely asserts a material fact to be true of his own knowledge and thereby induces another to act on the fact represented to his prejudice, or when one makes a representation not knowing whether it is true or false or caring what the fact may be, makes it recklessly, paying no heed to the injury which may result, commits a fraud which will sustain an action for-deceit, are not exceptions to but applications of the principle that the false representation must have been knowingly made with intent to deceive to sustain an action for deceit.

      Error to the Municipal Court of Chicago; the Hon. John D. Ttjbnbaugh, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed February 2, 1914.
    Rehearing denied February 16, 1914.
    John T. Evans, for plaintiff in error.
    Luther D. Swanstrom, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

The defendant corporation had at Havana, Cuba, an office where information to travelers was furnished and tickets sold. Herman, the defendant in error, was at Havana in February, 1910, and desiring to go with his wife to Kingston, Jamaica, by way of Santiago, inquired at the office of defendant when a boat would leave Santiago for Kingston and was told that one would leave Saturday, February 19. Plaintiff bought tickets to Santiago for himself and wife, went there in time to take a boat leaving the 19th and learned on his arrival that the sailing date of the boat to Kingston had been changed before he bought his tickets from February 19 to February 26, and he and his wife then returned to Havana. He brought in the Municipal Court an action of the fourth class against the defendant corporation to recover the amount paid by him for railroad transportation, hotel accommodations, etc., and recovered a judgment for $162.40, to reverse which the defendant prosecutes this writ of error.

The judgment may be sustained as a judgment in tort, if the evidence warrants such a judgment, although the statement of claim is in the form of an action on contract. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Merrick v. Canada Railway News Co., 161 Ill. App. 413.

The doctrine that in an action on the case for deceit for false representation it is necessary to prove, in order to recover, not only that the representation was false, but that the party making it knew that it was false, is well settled in this State. In Hiner v. Richter, 51 Ill. 300, and again in Holdom v. Ayer, 110 Ill. 448, it was said that the point has been often ruled on in that court and the question is not open to discussion. In Cantwell v. Harding, 249 Ill. 354, the rule is again announced and a large number of decisions by the Supreme Court cited.

The facts proved do not bring the case within the rule that where one falsely asserts a material fact to be true of his own knowledge and thereby induces another to act on the fact represented to his prejudice he commits a fraud which will sustain an action for deceit. Miss Shaw, a clerk of the defendant, represented and acted for the defendant in the transactions and the representations made by defendant to plaintiff were made through her as the clerk and agent of the defendant. She did not profess to have personal knowledge of the intended sailings. Plaintiff, when he asked her when there would be a boat from Santiago to Kingston, knew that her answer must necessarily be based on the information in the possession of defendant, for he asked her to look the matter up thoroughly and said he would be back later. She examined the schedule of intended sailings furnished defendant by the boat company and reported to plaintiff on his return that a boat would leave Santiago February 19. The report was in accordance with the information in the possession of the defendant, but in fact a later schedule had been published, of which defendant had not been informed, giving February 26 as the date of the next intended sailing. Clearly the statement so made to plaintiff by Miss Shaw was not an affirmation that the statement was true of her own knowledge, but the circumstances show that it was made from the information in possession of the defendant and that this was known to the plaintiff.

Neither do the facts proved bring the case within the rule that where a defendant makes a representation not knowing whether it is true or false and not caring what the fact might be, makes it recklessly, paying no heed to the injury which might ensue, such a representation, if untrue, is sufficient to sustain an action for deceit.

In Kountze v. Kennedy, 147 N. Y. 124, s. o. 29 L. E. A. 360, it was said: ‘ ‘ The making of a representation to influence the conduct of the person to whom it is made, carries with it an assurance, necessarily implied from the situation, of the belief of the party making it in the truth of the affirmation. As was said by Maulé, J., in Evans v. Edmonds, 13 C. B. 777, £he takes upon himself to warrant his own belief of the truth of that he asserts, and a man who makes a representation which he neither knows nor cares whether it is true or not, can have no real belief in the truth of what he asserts, and is justly guilty of deception.’” Miss Shaw did not make the representation as to the date of sailing recklessly. She examined the latest schedule furnished the defendant by the' boat company and correctly quoted to plaintiff the date of sailing stated in such schedule. The rules that when a party falsely asserts a material fact to be true of his own knowledge and thereby induces another to act on the fact represented to Ms prejudice, or when one makes a representation not knowing whether it is true or false or caring what the fact may be, makes it recklessly, paying no heed to the injury which may result, commits a fraud which will sustain an action for deceit, are not exceptions to but applications of the principle that the false representation must have been knowingly made with intent to deceive to sustain an action for deceit.

We are of opinion that the evidence in the record fails to prove either that the defendant, by its agent, falsely asserted' as of its own knowledge that a boat would leave Santiago for Kingston February 19, or that it made a representation that a boat would leave on that day, recklessly, not knowing or caring whether it was true or false, and regardless of the injury which might ensue. It follows from what has been said that the plaintiff was not on the evidence entitled to recover from the defendant, and the judgment will be reversed but the cause will not be remanded.

Judgment reversed with finding of facts.

Finding of Facts: The court in this case finds as facts that it does not appear from the evidence either that the defendant falsely represented to plaintiff as -of its own knowledge that a boat would leave Santiago, Cuba, February 19, 1910, for Kingston, Jamaica, or that it represented to plaintiff that a boat would so leave on that day, recklessly, not knowing or caring whether it was true or false and paying no heed to the injuries which might ensue.


text:
    Frank Waller, Defendant in Error, v. Cooke Brewing Company, Plaintiff in Error.
    Gen. No. 18,644.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Frank Waller against Cooke Brewing Company to recover three hundred and twenty-five dollars, being a part of seven hundred dollars alleged to have been deposited by plaintiff with defendant’s cashier, John V. Cooke, for safe-keeping. From a judgment in favor of plaintiff for three hundred and twenty-five dollars, defendant brings error.
    Defendant Brewing Company urges: That the money was not deposited with it but with John V. Cooke, and therefore the Company is not liable, and that the money so deposited was repaid to plaintiff.
    Abstract of the Decision.
    Assumpsit, action of, § 89

      —when judgment for money deposited sustained hy the evidence. In an action against a Company to recover money deposited by plaintiff with defendant’s cashier for safe-keeping, evidence held sufficient to sustain a finding that the money was deposited with the defendant Company and that the money had not been repaid.
    Harry A. Daugherty, for plaintiff in error.
    Bernstein & Bernstein, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Thomas S. Crowe, Defendant in Error, v. Walter B. Templeton, Plaintiff in Error.
    Gen. No. 18,656.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Thomas S. Crowe against Walter B. Templeton to recover $411.50 for professional services rendered by plaintiff to defendant and his family as a physician. From a judgment in favor of plaintiff for $139.50, defendant brings error.

      Abstract of the Decision.
    Physicians and surgeons, § 28

      —when evidence sufficient to sustain judgment for professional services. In an action by a physician for professional services .rendered, amount of judgment recovered by plaintiff, held sustained by the evidence.
    Ullmann, Hoag & Davidson, for plaintiff in error.
    Frank T. McDermott and Frank A. Bamacitti, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Justice Brown

text:
    Max Weinberg for use of Frank A. Flavin, Defendant in Error, v. J. Krueger and Anna E. Krueger, Plaintiffs in Error.
    Gen. No. 18,467.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Max Weinberg for the use of Frank A. Flavin against J. Krueger and Anna E. Krueger in garnishment upon- a judgment secured by Flavin against Weinberg for $42.21. Judgment was recovered against defendants jointly in favor of Weinberg as the nominal and Flavin as the beneficial plaintiff for $50.41. To reverse the judgment, defendants prosecuted a writ of error.
    Beauregard F. Moseley, for plaintiffs in error.
    Blum, Wolfsohn & Bacon, for defendant in error.

      Abstract of the Decision.
    Garnishment, § 118

      —when judgment against joint defendants erroneous. A judgment against- a husband and wife jointly in a garnishment proceeding, held erroneous and reversible as to both defendants where the record shows no evidence connecting the wife with the indebtedness to the nominal plaintiff.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    James A. Pugh, Defendant in Error, v. C. A. Williams, Plaintiff in Error.
    Gen. No. 18,518.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    -Opinion filed February 2, 1914.
    Statement of the Case.
    Action by James A. Pugh against C. A. Williams to recover a balance due on a verbal contract for the sale of an engine by plaintiff to defendant for one thousand two hundred and fifty dollars, on which nine hundred and fifty dollars was paid. To reverse a judgment entered in favor of plaintiff for three hundred dollars, defendant prosecutes a writ of error.
    Eddy, Wetten & Pegler, for plaintiff in error; William H. Dietrich, of counsel.
    Q. J. Chott, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 329*—when evidence shows personal liability of officer of corporation for purchase price. In an action to recover a balance due upon the purchase price of an engine sold by plaintiff to defendant, the defense being that the engine was purchased by a corporation of which defendant was secretary, held that the shipment and letters written by defendant and signed by him in the name of the corporation in negotiating for the purchase showed a personal liability to pay for the engine, that plaintiff was not estopped to claim that defendant was personally liable, and that a judgment for plaintiff was sustained by the evidence.

2. Contracts, § 211*—personal liability of officer signing in name of a corporation. The fact that a letter negotiating for the purchase of property was signed in the name of a corporation by its secretary does not detract from the secretary’s personal obligation recognized not only in the contents of the letter but even in its form, the letter being characterized by the use of the first person singular throughout.


text:
    Terezie Firpach, Defendant in Error, v. John L. Novak et al., Plaintiffs in Error.
    Gen. No. 18,543.
    1. Trover and conversion, § 39

      —when recovery for misapplication of money deposited with agents for payment of tames not sustained by the evidence. An owner of real property deposited money with real estate agents for the payment of taxes on the property. The agents failed to apply the money to such purpose and the property was sold for taxes and the purchaser acquired a tax deed. Afterwards the owner paid a certain sum for a release of the tax deed and sued the real estate agents to recover the amount so paid as damages for converting the money deposited to their own use. Held that a judgment in favor of plaintiff for the sum paid for a release of the tax deed could not be sustained, there being no sufficient evidence of any damage save that of the amount deposited and interest.
    2. Trover and conversion, § 47

      —measure of damages when agents misapply money deposited with them for payment of tames. Where an owner of real property deposits money with agents to pay taxes on the property and the agents appropriate it to their own use and in consequence thereof the property is sold for taxes and the purchaser acquires a tax deed, for the release of which the owner pays a certain sum, the measure of damages might be the reasonable value of the land if plaintiff proves that the tax deed conveyed a paramount title, hut in the absence of such proof the measure of damages would he the amount paid for the release of the tax deed if such amount was proved to be the reasonable and fair value of the interest acquired.
    3. Payment, § 34

      —conclusiveness of receipt. It is competent to explain a receipt as conditional or to prove a subsequent agreement concerning the use of the money.
    Error to the Municipal Court of Chicago; the Hon. William Ñ. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 2, 1914.
    Rehearing denied February 25, 1914.
    Vincent D. Wyman, Charles E. Carpenter and Otto W. Jurgens, for plaintiffs in error.
    Jones, Bryant, Keener, Ring & Posvic, for defendant in error.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to reverse a judgment for $303.28 rendered by the Municipal Court of Chicago against John L. Novak and Frank Steiskal (who were the defendants below and are the plaintiffs in error here) in favor of Terezie Firpach. The defendants in error June 8, 1906, were partners in the real estate business. For Mrs. Firpach they had negotiated the purchase of a house and lot in December, 1905, and acted as her agents in the management of the property afterwards. June 8, 1906, she gave them $50 and received from Steiskal the following receipt:

“June 8,1906.
“Received of Mrs. Terezie Firpach Fifty Dollars on account of taxes and assessments.
Novak & Steiskal.”

This money was not paid for the taxes (which were then due) but was applied to a running account between Mrs. Firpach and Novak and Steiskal, on which, according to the account on their books, offered in evidence, there was then $22.10 due them, an amount which was increased between that time and January 14, 1907, by the payment of other items.

The property was sold for unpaid taxes and in March, 1911, on a conveyance by Mrs. Firpach to the Monarch Brewing Company of the property in question, $475 was paid by the Monarch Brewing Company to one Jacob Grlos, who had acquired a tax title, which had ripened into a deed. This sum was charged in the transaction between Mrs. Firpach and the Brewing Company to her. Grlos, it was stipulated, had paid subsequent taxes amounting to $171.72. The difference, therefore, between $475 and $171.72, or $303.28, was held in this suit to be a proper measure of damages for the default of the defendants in the application of the $50 to the payment of taxes before September 14, 1906, when the first tax sale of the property occurred. The jury to whom the cause was submitted found this amount of damages due from Novak & Steiskal to Mrs. Firpach and the judgment complained of was rendered on that verdict.

The statement of claim in this case (which was begun in the Municipal Court August 23, 1911), asserted that the defendants “did convert and dispose of said sum of fifty dollars to their own use, by reason whereof the property of plaintiff was, without any fault on her part, sold to pay said taxes and assessments * * * and afterward plaintiff was compelled and did pay to said Jacob Grlos for a quit claim deed to his interest in said real estate acquired by said tax sale the sum of five hundred dollars.”

The defendants claimed in effect three defenses:

1. That the agreement under which the $50 was received included a stipulation other than that mentioned in the receipt, namely, that it was to be applied for payment of balance then due the defendants provided said balance was not paid by July 1, 19Q6; that said balance was not paid and accordingly the plaintiff was given credit for said payment on account and was notified that said money had not been paid for taxes, and that she would have to pay said taxes and assessments herself or bring in more money for that purpose. 2. That the plaintiff was not compelled to pay Jacob G-los the sum of $500 or $475 for a quitclaim deed, but paid the latter sum voluntarily and without necessity; and, 3, that the action had not been commenced within five years from the time said alleged cause of action accrued and the statute of limitations had barred the suit.

Inasmuch as we have decided that the judgment must be reversed and the cause remanded because of considerations really involved in the second of these defenses, we shall say little of the first and third beyond this, that we should not, as the record now stands, disturb the verdict or judgment because of the evidence adduced to support these defenses. The statute of limitations did not begin to run until the money was converted, if it were converted, from the use for which it was paid to Novak and Steiskal, and Mrs. Firpach had notice of it. In regard to this there was evidence enough to support the verdict of the jury.

It was competent to explain the receipt as conditional or to prove a subsequent agreement concerning the use of the money, if either were the fact; but there was evidence enough at the trial to warrant the jury in believing neither. But on the other hand there was, as we are forced to conclude, no sufficient evidence of any damage save that of the amount of money paid, $50 and interest. We do not say that other damages could not or cannot be proved, but that they were not.

There was evidence tending to show that the plaintiff knew of the sale for taxes in time to redeem, and evidence that she was not, as she alleges, misled and induced by defendants to forego such redemption. If this were true, she could not recover damages beyond what it would have cost her to redeem, certainly not unless she proved her inability to raise the necessary amount in time thus to redeem.

But even if this were not true she cannot, merely because the tax sale has ripened into a tax deed, recover what she may have chosen to pay or some one may have chosen to pay for her to the tax deed holder.

If she had proved that the deed conveyed a paramount title '(which its mere production did not, Glanz v. Ziabek, 233 Ill. 22; Esker v. Hefferman, 159 Ill. 38), then the reasonable value of the land might be the measure of damages, as the plaintiff claims. If she did not prove that the deed conveyed a paramount title, it was still a cloud and incumbrance, and an amount paid for its quitclaim or release might be the measure of damages if that amount was proved to be the reasonable and fair value of the interest acquired. The mere fact of payment is not enough. McCord v. Massey, 51 Ill. App. 186, affirmed in 155 Ill. 123.

The “reasonable and fair value.of the interest acquired” might be, as the plaintiffs in error maintain in their reply brief, proved by evidence showing the “amount due tax title holder, without reference to subsequent taxes paid by him, together with testimony as to the reasonable expense of setting aside the tax deed.”

But no attempt was made in the trial of this case to show anything further concerning the matter than that Gflos received $475 for his quitclaim deed.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Beown

text:
    Pennsylvania Company, Plaintiff in Error, v. The Dunham Towing & Wrecking Company sued as Great Lakes Towing Company, Defendant in Error.
    Gen. No. 18,631.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Collision, § 11

      —when verdict for defendant sustained by the evidence. In an action against a Towing Company to recover damages to a protection pier alleged to have been caused by a vessel striking against the pier while being towed by tugs of defendant, a verdict in favor of defendant on conflicting evidence held sustained by the evidence.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Pennsylvania Company against the Dun-ham Towing and Wrecking Company, sued as Great Lakes Towing Company, to recover for damage done to plaintiff’s protection pier in the Calumet River and alleged to have been caused by the negligence of the defendant in the management of its tugs while towing a certain boat which struck said protection pier. To reverse a judgment of nil capiat and for cost against the plaintiff, plaintiff prosecutes a writ of error.
    Loesch, Scofield & Loesch, for plaintiff in error.
    M. P. Sullivan and T. C. Robinson, for defendant in error.

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

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

   Me. Justice Beown

delivered the opinion of the court.

2. Municipal Court of Chicago, § 28 —when objection to oral instruction not preserved. Where a judge of the Municipal Court charges the jury orally and after the charge was given asked whether either counsel desired to have the jury further instructed and no response was made by counsel for either party nor any objection or exception of any kind taken to the instructions in the Municipal Court, a party cannot complain of the whole or any part of the charge in the Appellate Court.

3. Instructions, § 162 —when words in instructions not misleading. In an action against a Towing Company for damage to a pier alleged to have been caused by a vessel which was being towed by defendant’s tugs, an oral charge was given to the jury that: “In the event that the proof shows that the accident occurred through the negligence alone of the defendant, then you will consider in your verdict the amount of the damages which have been proven * * * and should return your verdict in accordance with the truth.” Held that the use of the word "alone” and the word “truth” were not misleading.


author: Mr. Justice McSurely

text:
    Chattanooga Savings Bank, Defendant in Error, v. Charles L. Lumby, Plaintiff in Error.
    Gen. No. 18,420.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Chattanooga Savings Bank against Charles L. Lumby for a balance due on a promissory note executed by a third person to defendant and made payable to the order of the plaintiff Bank. Afterwards the defendant indorsed his name on the back of the ■note and sold it to the bank. When the note fell due the bank obtained a payment and a new note for the balance was executed by the maker to the bank. From a judgment in favor of plaintiff, defendant brings error.

      Abstract of the Decision.
    1. Bills and notes, § 399

      —when indorser presumed liable as a guarantor. Where a note given to an individual is made payable on its face to the order of a bank and such person writes his name on the back of the note and sells it to the bank, by indorsing the note, the transaction comes within the rule that where a person not the payee of a note places his name on the back thereof the legal presumption is that his liability is that of a guarantor.
    2. Bills and notes, § 190

      —nature of guarantor's liability. A guarantor of a note is an original promisor and not one secondarily liable; the only way he can be relieved from liability thereon is by the payment of the note.
    3. Bills and notes, § 98

      —when giving of new note does not operate to cancel old note. Where a note given to an individual was made payable to a bank and the holder indorsed his name thereon and sold it to the bank, and when the note became due a new note was executed to the bank by the maker, held in a suit by the bank against the person to whom the note was given that a defense that the new note was given in full payment and in cancellation of the first note could not be sustained where there is uncontradicted evidence that the bank retained the old note as collateral to the new one.
    4. Bills and notes, § 96

      —when not extended. Where an old note is retained as collateral security for a new one there is no extension.
    Oscar M. Lumby, for plaintiff in error.
    Holt, Wheeler & Sidley, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Carl Strum, Appellee, v. J. M. Berry and L. C. Berry, Appellants.
    Gen. No. 18,458.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 279

      -—when interference with enjoyment of premises does not relieve from paying rent. Where acts of the landlord tend merely to diminish the beneficial enjoyment of the premises, the tenant is still bound for the rent if he continues to occupy the same, although he might show as a matter of defense in a suit for rent how much such beneficial enjoyment was diminished by the act of the landlord and recoup for whatever damages he may be able to show he had sustained through the wrongful act of his landlord.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham: Scanlan, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed February 2, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Carl Strum against J. M. Berry and L. C. Berry alleging eviction and praying that defendants be restrained from interfering with complainant’s possession of certain premises occupied by him under a lease from the defendants, and- also that they be restrained from instituting any suit against complainant for rent or possession and from shutting off motor power to the premises. From a decree in favor of the complainant, defendants appeal.
    Miller, Gorham & Wales, for appellants.
    Henry & Robinson, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Landloed and tenant, § 264 —when changing access to premises does not constitute eviction. A manufacturer of brooms leased the second floor of a building. By agreement a trapdoor between the first and second floor was to be used by the tenant in receiving his supplies and a chute from a canopy on the outside of the building was to be used in loading wagons. Subsequently the landlord provided a hoist on the outside of the building to enable the tenant to receive his supplies and extended the chute after taking away the canopy. Held that the changes made by the landlord did not constitute an eviction so as to relieve the tenant from paying rent, it appearing that he was dispossessed of no part of the second floor of the building and that the changes made were not to the tenant’s disadvantage.

3. Judgment, § 508 —when not res adjudicata on question of eviction. A judgment in favor of a tenant in an action against him for possession and rent in which he pleaded a partial eviction is not res adjudicata on question of eviction where it does not appear from the record of the case but that it was based on some other ground, and the facts alleged to constitute the eviction are not the same as when the judgment was rendered.


text:
    Carl Strum, Appellee, v. J. M. Berry and L. C. Berry, Appellants.
    Gen. No. 18,457.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanean, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Proceeding between Carl Strum against J. M. Berry and L. C. Berry in connection with the controversy narrated in a proceeding between the same parties reported on page 113, ante. The defendants to the complainant’s bill filed a cross-bill praying that the complainant be enjoined from prosecuting a suit instituted by complainant against the defendants growing out of the same matters alleged in the chancery suit. An injunction issued as prayed. Thereafter a demurrer to the cross-bill was sustained and the injunction dissolved and complainant filed a suggestion of damages. From a finding of the master allowing complainant two hundred and fifty dollars damages for solicitor’s fees, complainants in the cross-bill appeal.
    Abstract of the Decision.
    Injunction, § 321*—when allowance of solicitor's fees not excessive. On assessment of damages on dissolution of an injunction issued upon a cross-bill, allowance to complainant of two hundred and fifty dollars as solicitor’s fees held not excessive.
    Miller, Gorham & Wales, for appellants.
    Hehry & Robihsoh, for- appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Louis Glickman, Defendant in Error, v. Henry Shallat and Samuel Stein, Plaintiffs in Error.
    Gen. No. 18,524.
    1. Brokers, § 3

      —license. There is no statute requiring a real estate broker to have a license.
    2. Appeal and error, § 1038

      —judicial notice ordinances. The Appellate Court cannot take judicial notice of ordinances.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Smejkal, Klehha & Krasa, for plaintiffs in error.
    Bell & Cross, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

In this case G-lickman sued and obtained judgment against plaintiffs in error for services rendered them in procuring a purchaser for some real estate which they owned.

It is urged in this court that plaintiff was not a licensed real estate broker at the time of the transaction, and hence it is claimed he cannot recover commissions.

We know of no statute which requires a real estate broker to have a license, and no ordinance requiring a license is before us in the record. In City of Chicago v. Openheim, 229 Ill. 313, a case from the Municipal Court, the Supreme Court said that an ordinance not offered in evidence and not appearing in the record was not before it. In the recent case of Sixby v. Chicago City Ry. Co., 260 Ill. 478, it is held that the provision of the Municipal Court Act requiring Appellate Courts to take judicial notice of the'Municipal Court rules is void. Following the reasoning of this case, and upon the authority of the Oppenheim case, supra, we hold that this court cannot take judicial notice of ordinances. Without a license ordinance before us we see no reason for reversing this judgment. It is affirmed.

Affirmed.


text:
    Taufick N. Kotite and Naman S. Farhood, copartners, Defendants in Error, v. Abo-Samra S. Gazelle, Plaintiff in Error.
    Gen. No. 18,568.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.

      Abstract of the Decision.
    1. Attachment, § 265

      —irregularities in writ as ground for reversal of judgment on merits. Where the defendant in attachment entered his general appearance a.nd the court found in favor of him on the attachment issues and against him on the issues as to the merits, he can not urge informalities in the attachment writs as grounds for the reversal of the judgment against him on the merits.
    2. ' Attachment, § 229

      —effect of general appearance. Defendant in attachment hy filing a general appearance gives the court jurisdiction though the attachment writ may have been informal.
    Statement of the Case.
    Suit in attachment hy Taufick N. Kotite and Ñaman S. Farhood, co-partners, doing business as Kotite & Farhood, against Aho-Samra S. G-azelle. The attachment writ was served upon defendant in person and he entered his general appearance in the cause. The case was tried by the court, who found against the plaintiffs on the attachment issues and against the defendant on the merits. To reverse the judgment against defendant on the merits, defendant brings error.
    Francis E. Hinckley, for plaintiff in error.
    Harry J. Myerson and Don C. Wray, for defendants in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Margaret L. Felkey, Defendant in Error, v. Mary Roberts and F. F. Roberts, Plaintiffs in Error.
    Gen. No. 18,622.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 199

      —when joint judgment erroneous. A judgment against two defendants jointly for wages, held erroneous as to both defendants because erroneous as to one, there being no evidence in the record to show employment of plaintiff by one of the defendants.
    2. Assumpsit, action of, § 65

      —persons liable for wages. A person who might be beneficially interested in work done by a stenographer at the request of the stenographer’s employer is not jointly liable for the stenographer’s wages.
    Error to the Municipal Court of Chicago; the Hon. Rmrus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by Margaret L. Felkey against Mary Roberts and F. F. Roberts for wages claimed to be due plaintiff from defendants for services rendered as a stenographer. To reverse a judgment in favor of plaintiff for one hundred and forty dollars, defendants -bring error.
    Jesse Wilcox, for plaintiffs in error.
    Ernest C. Reniee, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    First National Bank of Champaign, Illinois, Defendant in Error, v. John A. Bryant Piano Company, Plaintiff in Error.
    Gen. No. 18,639.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Set-off and becotjpment, § 9

      —when claim for damages in affidavit of merits not proper subject of set-off. In an action on a promissory note by the holder thereof against the maker, the defendant filed an affidavit of merits seeking to set up a claim for damages suffered by defendant in a transaction between him and a party, other than the payee, who indorsed the note, such transaction occurring after the execution of the note. Held, that striking the affidavit from the files and entering judgment in favor of plaintiff as in case of default was not error; that the claim set forth in the affidavit was for unliquidated damages, not only arising out of a different transaction but apparently a transaction between other parties; and that plaintiff was entitled to a judgment as in case of default under section 55 of the Practice Act, J. & A. T 8592.

      Error to the Municipal Court of Chicago; the Hon. James C. Mabtin, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Action by First National Bank of Champaign, Illinois, against John A. Bryant Piano Company on a promissory note, executed by the defendant. The note was made payable to the Johnson Player Piano Company and was indorsed by it and transferred to the plaintiff. The defendant filed an affidavit of defense claiming it suffered damages in a transaction between it and a concern, other than the payee,' which had indorsed the note. The affidavit was stricken from the files and judgment entered against defendant by default. To reverse the judgment, defendant brings error.
    Kruse & Peden, for plaintiff in error.
    Philip Clarkson, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Costs, § 67 —damages for prosecuting writ of error for delay. Fifteen dollars awarded to plaintiff as statutory damages on ground that writ of error was prosecuted for delay.


text:
    Francesca Karczewska, Defendant in Error, v. Joseph Chmielewski, Plaintiff in Error.
    Gen. No. 18,649.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed February 2, 1914.
    Statement of the Case.
    Suit by Francesca Karczewska against Joseph Chmielewski for breach of promise to marry. From a judgment in favor of plaintiff for one hundred and fifty dollars, defendant brings error.
    Smietanka, Johnson, Molthrop & Polkey, for plaintiff in error.
    L. W. Carpenter, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Breach of marriage promise, § 20 —when evidence sufficient to show promise to marry. A judgment in favor of plaintiff in a suit for breach of promise, held sustained by the evidence, it appearing that defendant’s denial of making the promise went only to the precise words used in addressing plaintiff, that the occasion of the interview was to enter into a contract of marriage, and that when plaintiff informed defendant she was willing his conduct and statements would reasonably lead plaintiff to believe that he was also willing.


author: Mr. Presiding Justice Smith

text:
    George Fugina, Appellee, v. Federal Furnace Company, Appellant.
    Gen. No. 18,919.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 3, 1914.
    Statement of the Case.
    Action by George Fugina against Federal Furnace Company to recover for personal injuries sustained by plaintiff by being burned by hot flue dust caused by the negligence of defendant in causing a car of flue dust to be dumped while plaintiff, in the employ of defendant, was engaged in shoveling the dust from the car. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.
    Appellant assigns for error that a verdict should have been directed for defendant, and that the verdict is contrary to the evidence and the law. It is maintained in support of such errors assigned: (1) That the evidence fails to show any negligence on the part of appellant; (2) that the plaintiff’s injuries were proximately caused by risks which he assumed; and (3) that if any negligence contributed to his injuries it was that of fellow-servants.
    Abstract of the Decision.
    Masker and servant, § 191

      —when evidence shows master liable for injury to servant resulting from negligent order of foreman. In an action by a servant to recover for personal injuries sustained by being burned by hot flue dust, the evidence showing that while plaintiff was shoveling the dust from a car the defendant’s foreman caused the car to be dumped by negligently issued orders to other servants to release the appliance at the bottom of the car without warning plaintiff, held that the court did not err in refusing to direct a verdict for defendant, that the evidence did not show that the injuries were approximately caused by the risks which he assumed or by the negligence of fellow-servants, and that a verdict for plaintiff was sustained by the evidence.
    Ralph F. Potter, for appellant; Robert J. Folonib, of counsel.
    Lee & Lee, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    B. F. McKeage, Jr. and Charles F. DaCosta, Appellees, v. Scully-Kostner Coal Company, Appellant.
    Gen. No. 18,932.
    (Not to be reported in full.)
    Appeal from the Municipal Court "of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 3, 1914.

      Certiorari allowed by Supreme Court.

      Abstract of the Decision.
    1. Action, § 35

      —form of. An action is not for money had and received but an action founded on a breach of a written contract, where the statement of claim after alleging and setting forth the contract alleges the facts constituting the breach and that plaintiff had been damaged thereby.
    2. Contract, § 36

      —when no variance as to parties. The fact that one of tiré parties suing on a written contract did not actually sign the contract does not constitute a variance between the statement of claim and the proof, where he accepted the contract and did all he was required to do thereunder.
    3. Contracts, § 53

      —when signature unnecessary. Though one of the parties mentioned in the contract as the party of the second part did not sign the contract he is a party thereto and bound thereby if he accepted it and did everything that he was required to do under it.
    4. Contract, § 386

      —when defense of want of consideration not sustained ly the evidence.' In an action for breach of a contract for the assignment of a judgment wherein defendant had agreed to assign to plaintiff a judgment it had recovered against a certain company of which the plaintiffs were officers, in consideration that the plaintiffs would pay a certain sum in cash and give notes for the balance of the price agreed upon, and had further agreed that in case bankruptcy proceedings were started against the company within sixty days from the date of signing the contract it would refund the amount paid and deliver up the notes on reassignment to him of the judgment by plaintiffs, held that the defense that there was no consideration for the agreement to return the money and notes for the reason that the company and one of the plaintiffs were one and the same, and therefore the company was paying its debt, was not sustained by the evidence.

      Statement of the Case.
    Action by B. F. McICeage, Jr. and Charles F. Da Costa against Scully-Kostner Coal Company to recover damages for breach of a v ritten contract entered into between plaintiffs and the defendant with reference to the assignment of a judgment. From a judgment in favor of plaintiffs for $1,263.39 entered upon a directed verdict, defendant appeals.
    Jones, Bryant, Keener, Ring & Posvio, for appellant.
    Adams, Bobb & Adams, for appellees.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Coleman Gannon, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,943.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 3, 1914.
    Statement of the Case.
    Action by Coleman Gannon against the Chicago Railways Company to recover for personal injuries sustained by plaintiff and alleged to have been caused by the negligence of defendant in suddenly starting its car while plaintiff was attempting to board the same. Defendant pleaded the general issue, and claimed on the trial that it had no knowledge of the accident at the time it occurred and had no notice that plaintiff tendered himself as a passenger, and that the plaintiff was injured through Ms own fault in attempting to board a moving car. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Charles L. Mahont and William H. Symmes, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    J. W. Sutton, for appellee; Martin L. Wilbokn, of counsel.

      Abstract of the Decision.
    1. Carriers, § 486

      —when modification of instruction erroneous. In an action against a street railway company for personal injuries, the defendant tendered an instruction stating that if the defendant had no notice or could not know that plaintiff intended to hoard the car, then if plaintiff was injured in attempting to hoard the car under such circumstances there could he no recovery. Held that a modification of the instruction hy the trial court so as to make it turn upon the question whether the plaintiff exercised ordinary care in attempting to hoard the car was error.
    2. Carriers, § 486

      —when refusal of requested instruction is error. In an action against a street railway for personal injuries sustained by plaintiff in attempting to board a car, refusal of a requested instruction: “If you believe from the evidence that the plaintiff attempted to board the car in question while the car was moving, then you should find the defendant not guilty,” held error.
    3. Instructions, § 7

      —when should he accurate. Where the record shows a variance and dispute in the evidence and between the plaintiff’s statements out of court and his testimony on the trial, it is indispensable that the jury should be accurately instructed.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    James S. Tracey, Appellee, v. Chicago Railway Company et al. On Appeal of Chicago City Railway Company, Appellant.
    Gen. No. 18,955.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowtqes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 3, 1914.

      Abstract of the Decision.
    1. Street railroads, § 140

      —instructions singling out facts. In an action for personal injuries sustained as the result of a collision between a street car and a wagon which plaintiff was driving, an instruction which singles out the fact that certain passengers on the car saw the wagon in time to avert a collision, and that it was the duty of the motorman at that time to see what the passengers saw, is erroneous.
    2. Negligence, § 216

      —instructions invading province of jury. An instruction telling the jury what the particular act of defendant’s servant must be to be within the exercise of ordinary care is erroneous as invading the province of the jury.
    3. Street railroads, § 142

      —instructions invading province of jury. An instruction in an action for personal injuries due to a collision between a street car and a wagon driven by plaintiff, that if the wagon was crossing the track when the car was at a certain street intersection it was the duty of the motorman, at that time, to attempt to control or check the progress of the car, and if he did not do so, at that time, his failure in that respect constituted negligence, is erroneous as invading the province of the jury.
    4. Negligence, § 216

      —instructions singling out facts. An instruction which singles out particular facts and tells the jury that, singly, such facts do not constitute anj' defense, is erroneous, when in law they, together with other facts and circumstances, constitute proper matter to be considered, by the jury in determining whether or not all the facts and circumstances made out a defense.

      Statement of the Case.
    Action by James S. Tracey against Chicago Railway Company and others for damages for personal injuries sustained as the result of a collision between defendant’s car and a wagon which plaintiff was driving. From a judgment for plaintiff, defendant, Chicago City Railway Company, appeals.
    James G-. Condon and Charles Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    Gallagher & Messner, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, same tonic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.

5. Street railroads, § 142 —instruction on facts constituting negligence. Where there was a conflict in the evidence as to the distance of a street car from a wagon at the time the driver of the latter attempted to cross the track, an instruction that: “It is negligence for a motorman in charge of a street car to run said car at such a rate of speed that he cannot stop said car within the distance at which he could, by the exercise of ordinary care on his part, see an obstruction ahead of him on the track,” is erroneous.

6. Street railroads, § 62 —mutual obligations as to use of streets. The driver of a wagon and the employes of a street rail-' way company operating a street car, using the street in common, are bound only to exercise ordinary care to avoid injuring each other.


text:
    Edward Strohm, Appellee, v. John Fachet and Joseph Galla, Appellants.
    Gen. No. 18,978.
    1. Execution, § 305

      —liability on appeal bond in ca. sa. Where the petition of a debtor, imprisoned under a capias ad satisfaciendum, for his release from custody was denied by the County Court and, pending an appeal, he was released on a bond given under the provisions of R. S. ch. 72, par. 26 J. & A. j[ 6225, but on the dismissal of the appeal failed to surrender to the sheriff, the surety on the bond is liable absolutely for the debt, although there was no proof that the debtor had disposed of any of his estate pending the appeal, or that any demand was ever made on either the debtor or his surety for his surrender.
    2. Execution, § 305

      —nature of appeal bond in ca. sa. An appeal bond given by a debtor under the provisions of R. S. ch. 72, par. 26, J. & A. If 6225,' upon the denial by the County Court of a petition for his release from imprisonment under a capias ad satisfaciendum, is not a mere cost bond, but is intended to protect the creditor’s rights in his claim.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 3, 1914.
    Rehearing denied February 24, 1914.

      George Eemus, for appellants.
    Joseph A. Weber, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal is from a judgment in debt recovered in the Circuit Court of Cook county on an appeal bond. The action was brought by Edward Strohm, appellee, against John Fachet and Joseph Galla, appellants.

A tort judgment was rendered in the Superior Court of Cook county in favor of Edward Strohm, plaintiff, against John Fachet, defendant. Subsequently, John Fachet was arrested and imprisoned on a capias ad satisfaciendum issued out of the Superior Court, and thereupon John Fachet filed his petition in the County Court of Cook county, asking to be released from his imprisonment pursuant to the provisions of the Insolvent . Debtors ’ Act. The petition was amended, and on the hearing of the amended petition the County Court denied- the prayer for release and dismissed the amended petition, and remanded the petitioner, John Fachet, to the custody of the sheriff. Thereupon Fachet prayed for and was granted an appeal to this court from the remanding order of the County Court, and the appeal was perfected by filing the appeal bond sued on with Joseph Galla as surety thereon. Fachet was thereupon released from custody in accordance with the terms of said appeal bond, pending the hearing and determination of the appeal in this court. The cause came on for hearing in this court and the appeal was dismissed. This action was commenced on the appeal bond by Strohm against Fachet and his surety, Galla, in the Circuit Court of Cook county, and resulted in a verdict and judgment for the plaintiff for debt of $1,250, to be satisfied on the payment of damages in the amount of $1,123.05.

The only question presented for decision on this appeal is the extent of the liability of the surety on" the bond, sued on. The bond declared on is the statutory bond provided for in paragraph 26, chapter 72 of the Revised Statutes (J. & A. 6225), and the conditions of the bond conformed to the provisions of the statute.

The plaintiff, to maintain the issue on his part, offered in evidence a certified copy of the judgment described in the bond rendered by the Superior Court of Cook county, and proved the genuineness of the signatures to the bond. Plaintiff also proved that the sheriff, prior to the time of the giving of the bond, had the defendant, Fachet, under arrest under a capias ad satisfaciendum issued out of the Superior Court on the judgment offered in evidence. Proof was also made that the defendant, Fachet, had never surrendered himself to the sheriff, after the dismissal of the appeal on which the bond in question was given.

The contention of appellant is that no proof of damages was made by the plaintiff, appellee, on the trial, justifying the judgment appealed from; that at most, under the evidence, the plaintiff was entitled to judgment for costs in the court below; that there was no proof made by the plaintiff tending to show that John Fachet had disposed of any of his estate pending his appeal from the remanding order of the County Court, or that any demand was ever made upon Fachet to surrender his body to the sheriff, or that any demand was ever made on Joseph G-alla, the surety on the bond, to surrender his principal in order that he might be reincarcerated under the capias ad satisfaciendum issued on the tort judgment. The argument is also advanced that the statute does not contemplate that the bond given in case the County Court remands the debtor into the custody of the sheriff is a security for the debt in any sense, and cites the provisions of .the statute and the conditions of the bond.

The condition of the bond sued on is as follows:

“Now, Therefore, if the said John Fachet will prosecute his said appeal with effect, and in case the appeal is dismissed, or the order or judgment of the said County Court is affirmed, in Whole or in part, he will perform the same, and will appear before and abide by whatever decision the said Appellate Court shall make in the premises, and pay all costs that may be awarded against him, the said John Fachet.
And also, that he will not sell or dispose of any of his estate pending such appeal, but that the same shall be forthcoming and subject to the order of the said County Court, then the above obligation to be void, otherwise to remain in full force and effect.”

The condition of the bond conforms to and follows the provisions of the statute. We regard the question presented by this record and by appellants’ argument as settled and determined by the case of Maher v. Huette, 89 Ill. 495. In that case precisely the same kind of bond was before the court, a bond given under the same statute, and it was there held as follows:

“All the rights of the creditor are fully protected in this way. He has a bond, with good security, and in sufficient amount to cover his claim, so conditioned that if the debtor failed to appear and surrender himself into custody at the proper time, the security upon the bond would be absolutely liable for the amount of the debt. ’ ’

While it is true that the precise question here involved was not presented for decision in the Maher case, supra, yet, in deciding the questions there presented, the court necessarily construed the statute and the bond given under the statute. If the courts should hold, or had held, as appellants claim it should be held, that the bond was not given as security for the amount of the debt, and that the bond contemplated in the statute is a mere cost bond, it would then be possible for a debtor in a tort judgment, who had been arrested under a capias ad satisfaciendum, by merely petitioning the court for a release from the writ under which he was imprisoned, to take an appeal and, by giving a mere cost bond, secure his release. The Supreme Court did not so construe the bond and rightly, we think, because such a construction would take away from the creditor the substantial right which the statute gives him of imprisoning the debtor under the judgment unless such debtor would turn over his property for the benefit of the creditor, or a sufficient amount of property to pay the judgment. It is no hardship on the debtor, or the surety on his bond, to hold him liable for the amount of the debt under the proof in this case. The debtor did not perform the judgment of the County Court by surrendering himself. He failed, under the proof in this case, to appear and surrender himself into custody at the proper time. The surety on the bond did not cause the debtor to be delivered over to the sheriff and surrender him into custody at the proper time. The surety on the bond, therefore, as well as the principal, became absolutely liable for the amount of the debt.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Paul Block, Incorporated, Appellee, v. Frank O. Balch, Appellant.
    Gen. No. 18,926.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 3, 1914.
    Statement of the Case.
    Action by Paul Block, Incorporated, against Frank O. Balch on a promissory note. From a judgment for plaintiff, defendant appeals.
    Harry A. Biossat, for appellant.
    Isaac S. Rothschild, for appellee.

      Abstract of the Decision.
    Bills and notes, § 450*—sufficiency of evidence of presentment for payment. Positive testimony by the holder of a note that same was presented to defendant as indorser on both the day before and on the day of its maturity, but that he did not request payment on the former date, was held, in the absence of a specific denial of the fact in controversy, to indicate- with sufficient certainty that the note was presented for payment on the date of its maturity, although in the course of his examination the witness became somewhat confused as to dates.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Henry D. Laughlin, Appellee, v. Chicago Railway Equipment Company et al., Appellants.
    Gen. No. 18,940.
    1. Corporations, § 178

      —when holder of old certificates of stock not deprived of right to inspect hooks. The fact that a stockholder has not exchanged his certificates of stock for a new issue after the corporation has changed the par value of its stock pursuant to statute does not make him any less a stockholder so as to deprive him of the right to enforce the right of inspection of corporate books under the statute.
    2. Corporations, § 179

      —when proof does not show unlawful purpose to inspect corporate hooks. On petition by a stockholder for a writ of mandamus to compel the corporation and its officers to permit the petitioner to inspect the 'books of the company, a defense was interposed that the petitioner desired the information that might be obtained from examining the books for unlawful purposes. Held, that conceding such defense was available, the proof offered did not tend to prove an unlawful purpose and that the court properly rejected such evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed February 3, 1914.

      Certiorari denied by Supreme Court (making opinion final).'

      Musgrave, Oppenheim & Lee, for appellants.
    Depress, Buckingham, Ritter & Eaton and Randolph Laughlin, for appellee; George T. Buckingham, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment awarding a writ of mandamus to appellee, as a stockholder of appellant Company, directing said Company and its officers to permit appellee to examine its records and hooks of account. The defense to the petition is based on two grounds: (1) That appellee Laughlin was not a stockholder of record; and (2) that he desired the information that might be obtained by such examination for improper and unlawful purposes.

Prior to Laughlin’s demand as a stockholder for permission to make such inspection, the corporation, pursuant to statute, changed the par value of its shares of stock from ten dollars to one hundred dollars each, and Laughlin had not surrendered his original certific.ates for new ones. It is contended, therefore, for that reason he is not registered as a stockholder on the books of the Company, and, therefore, hot entitled to enforce the right of inspection under the statute. We are cited to the case of In re Reiss, 30 Misc. (N. Y.) 234, where the writ was denied because the stock book of the company did not show the petitioner to be a stockholder; but the decision was based on certain provisions of the New York statutes not contained in ours. But in our judgment the fact that Laughlin had not exchanged his certificates of stock for the new issue did not make him any less a stockholder of the corporation.

The other defense is based upon allegations in the answer setting forth a line of conduct on the part of Laughlin, indicating persistent and active hostility to the corporation and its interests. The court rejected the offer of evidence in support of such allegations and the ruling is assigned as error. The contention of appellants is that the facts offered to be proved tend to show that Laughlin intended to make an unlawful use of the information he might acquire from an inspection, which, if obtained in any other way, a court of equity would enjoin him from using,, and that as the issuance of the writ is within the sound discretion of the court it would not award it where it appears to be sought for such an unlawful purpose. The question really presented is whether there was error in rejecting such offer. If there was, then it should appear that the evidence so offered was of such a character as would properly appeal to the exercise of a sound discretion by the court in granting or refusing the writ.

While it is conceded that the right of a stockholder under our statute to an examination and inspection of the books and records of a corporation is generally an absolute one, yet counsel for appellants contend that it is not unlimited, and cite the language in Foster v. White, 86 Ala. 467, approved by our Supreme Court in Stone v. Kellogg, 165 Ill. 192, that there is an implied limitation in the statute that the right “shall not be exercised from idle curiosity or for improper or unlawful purposes.” (p. 205.) In the Stone case, supra,a demurrer to the answer was sustained because there was nothing therein to show “that the object and purpose of the petitioner were not legitimate or were to injure the corporation.” (p. 206.) The Court said: “It is no sufficient answer to such a petition to impugn the motives of the petitioner.” (Id.) Later in the case of Venner v. Chicago City By. Co., 246 Ill. 170, the Court, referring to the right given by the statute as an absolute and unlimited one, said: “It is no defense under a statute granting the absolute right to inspection to allege improper purposes or that the petitioner desires the information for the purpose of injuring the business of the corporation. A clear legal right given by a statute cannot be defeated by showing an improper motive.” (p. 174.)

On appeal from a second trial of the Vernier case, a branch of this court sustained a demurrer to the answer because, conceding for the purposes of the case, that the decisions in the Venner and Stone cases, supra, may be harmonized so as to recognize a distinction between a mere improper motive and an unlawful purpose on the part of the stockholder in seeking to enforce his right of inspection, yet no such unlawful purpose was alleged in the answer. People ex rel. Venner v. Chicago City Ry. Co.. 183 Ill. App. 283.

If we may assume that the right of inspection given by the statute is not absolute, yet we fail to find in the proof tendered by appellants anything that in our judgment constitutes “an unlawful purpose.” It is intimated by appellants that Laughlin’s purpose was to obtain “trade secrets” for the benefit of competing corporations in which he was interested, but we find nothing in the nature of the proof offered to warrant such an inference.

Appellants offered to prove in substance that in 1899 appellee sold the control of the stock in certain companies to said Equipment Company upon an agreement not to enter into competition with it for the following ten years; that thereafter he sought to injure said Company and its business by notifying the bank, in which it kept a deposit, not to pay its checks, by notifying railroads with which it was doing business and to which it was selling brake beams, that it had no right to manufacture and sell the same, and by threatening to declare and enforce the forfeiture of a lease necessary to its business, unless it paid the American Brake Beam Company from which it obtained such lease a certain amount of money; that by reason thereof the Equipment Company was compelled to seek and did obtain a permanent injunction against both appellee and said Brake Beam Company, enjoining them from competing with it in the brake beam business; that to avoid the effect of such injunction, appellee organized another competitive company, and, to embarass appellant Company, sought to have its taxes increased, circulated false reports in regard to its management and financial standing, brought suits against it upon unfounded charges of mismanagement, in one of which he unsuccessfully sought the appointment of a receiver for it, and undervalued its stock and refused to sell his own at a greater valuation; and that the purpose of his attempt to gain access to the books of the Equipment Company was to injure it by giving the information gained therefrom to competing corporations controlled by appellee.

The only relevancy, proof of such matters could have, was to show the purpose for which appellee sought inspection. That purpose, however, is characterized in the offer as one to injure the corporation by giving the information he might thereby gain to competing corporations; but in what respect it was unlawful does not appear. The claim is that the Company’s business would in some way be injured. But as stated in the Venner case, 246 Ill. 174, “it is no defense * * * that the petitioner desires the information for the purpose of injuring the business of the corporation.” There is nothing in either the answer or offer from which it may be inferred that he desired to impart trade secrets, or that there were any such to impart. The most that can be said is that his purpose was to acquire information to be given a competing corporation from which it might in some way benefit. Assuming, therefore, for the purposes of this case, that the right to inspection under the statute is not so unlimited that the court will award a writ for its exercise where it appears to be sought for unlawful purposes, yet we are compelled to find that the court properly rejected the offered proof as not tending to show that the information sought by it was to be used for an unlawful purpose.

!Affirmed.


text:
    United States Brewing Company of Chicago, Appellant, v. D. Kavanaugh’s Sons, Appellee.
    Gen. No. 18,947.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 449

      —when execution of new lease operates as a surrender of old one. A tenant’s acceptance of a new lease for the same premises operates in law as a surrender of the old one, ’ and thereafter an agreement for cancellation of the old lease is unnecessary.
    2. Contracts, § 456

      —contract dependent on covenant in a lease construed. Where a tenant of certain premises contracted to buy beer from a brewing company during the term of a lease unless the lease is cancelled by .the lessor pursuant to an option in the lease, the tenant is' not relieved from performance of his covenant by a cancellation of the lease by mutual agreement between him and the lessor before the time provid'ed for the lessor to exercise his option.
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed February 3, 1914.
    Statement of the Case.
    Action by United States Brewing Company of Chicago, a corporation, against D. Kavanaugh’s Sons, a corporation, to recover for breach of a contract. From a judgment entered in favor of defendant on a directed verdict, plaintiff appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn and J. Sidney Condit, of counsel.
    Guerin, Gallagher & Barrett, for appellee.

      See Illinois Jiotes Digest, Yols. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.