author: Mr. Justice Dibell

text:
    Nelson W. Evans et al., Defendants in Error, v. Ross Construction Company, Plaintiff in Error.
    Gen. No. 4,885.
    1. Contracts-when parol evidence competent to show true meaning of. If before a contract is made and while the parties are in’the act of arranging its terms, particular words are agreed upon as having a particular meaning, then parol evidence is competent to show the true intent and undertaking of the parties.
    2. Evidence-burden of proof to show payment. The burden of proof to establish payment in full or upon account, is upon the defendant.
    Assumpsit. Error to the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Hoard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Sears & Smith, for plaintiff in error.
    Murphy & Alschuler, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

The Boss Construction Company had a contract to do certain work between Aurora and DeKalb in the construction of the line of the DeKalb & Bockford Electric Traction Company. The Boss Construction Company, under the name of W. C. Boss & Company, sublet about two miles of the grading to defendants in error, partners as Evans & Avery. After Evans & Avery had completed a part of the work the Boss Construction Company, hereinafter called the company, took the work out of the hands of Evans & Avery and seized their tools and machinery and finished the contract. Evans & Avery brought this suit against the company to recover a balance claimed to be due them for the work done and for the damages which they suffered by being deprived of the opportunity of finishing the contract. There was a trial and a verdict for plaintiffs for $1,000. The company obtained a new trial. At a second trial plaintiffs had a verdict and a judgment for $1,300. This is a writ of error to review that judgment.

The contract was mainly printed, and the written parts were inserted by the officers of the company. In the contract the prices to be paid were specified as follows: “Price per cubic yard or as measured: For grubbing, twenty-five ($25.00) dollars per acre. Embankment borrowed, 14 cents per cubic yard. Excavations, 14 cents per cubic yard.” The specifications contained, among other provisions, the following:

“Earth wasted from cuts must be deposited alongside of cuts. * * * Borrow pits shall not have on the side toward the roadbed a slope of less than one and one-half to one. When, in the judgment of the engineer in charge, at his advisability, all material should be borrowed on one side of the roadbed, or the width of the berme increased, or borrow pits to be made to a uniform width and depth as far as possible and be properly drained and to present an even and workmanlike finish. * * * At depot sites, sidings and other places where it is desirable not to have spoil banks or borrow pits, the contractor may be required to haul the borrowed material from such point as the engineer in charge may direct or to make such dispositions of waste material as in the judgment of the engineer in charge may be necessary without extra charge to the company other than the regular contract prices. * * * Overhaul of five hundred feet will be the limit of free hauls, which means five hundred feet from a point of gravity in cut to a point of gravity in fill, not to exceed over five hundred feet. Overhaul shall be paid at the rate of one cent per yard for each additional one hundred feet.”

At the trial the question arose whether, if earth was taken out of a cut and deposited in a fill to make the necessary ground for the road, that earth should be counted once or twice to compute the amount earned by plaintiffs under the contract. Plaintiffs examined G-. W. Snellbacher as a witness. He was superintendent for the company when this contract was entered into and he executed the contract on behalf of the company. He testified that prior to making of the contract and in connection with the making of it, he and one Pathrath, who was the chief engineer of the company, and Evans and Avery went over the work together which was to be done by Evans & Avery, and examined the same, and this question came up, and Evans or Avery asked the engineer how the estimate would be made, and he replied that it would be “both way pay,” that is, that if they used any of the earth out of a cut to make a fill, they should, be paid for both, and that in making this written contract he did so with the understanding that they were to be paid both ways for the dirt necessary to be moved whether it was in cuts or fills. Avery also testified for plaintiffs that in the conversation between himself and his partner, and Snellbacher it was said that they were to have fourteen cents for taking the earth out of the cut and fourteen cents for putting it into the fill. Plaintiffs also proved by Snellbacher that he considered fourteen cents per cubic yard a reasonable price for the work, allowing for both cuts and fills. There was other proof to the same effect. Much of •this testimony was introduced over the objection of the company, and the main ground on which a reversal of the judgment is asked is that this evidence was incompetent, and that the words used in the contract had a plain and definite meaning and did not have the meaning expressed in the conversation in question between the superintendent and chief engineer of the company on the one hand and the subcontractors on the other. In Wells v. Carpenter, 65 Ill. 447, the court said: “The true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it.” In Street v. Chicago Wharfing Company, 157 Ill. 605, the court said: “The court will, if necessary, put itself in the place of the parties, and read the contract in the light of the circumstances surrounding them at the time it was made, and of the objects which they then evidently had in view. So, also, the acts of the parties themselves, indicative of their construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement. And in this regard it makes no difference whether such acts are contemporaneous or subsequent. (Vermont Street Church v. Brose, 104 Ill. 206.) Moreover, where the contract is in fact understood by one of the parties in a certain sense, and the other party knows that he so understands it, then the undertaking is-to be taken in that sense, provided this can be done’ without making a new contract for the parties.” If, before this contract was made and while the parties were in the act of arranging its terms, the chief engineer of the company, in the presence of the superintendent who was to and did execute the contract on behalf of the company, told the plaintiffs that they would be paid the proposed contract price of fourteen cents per cubic yard for hauling the dirt out of a cut and a like price for hauling the same dirt into a fill, and if, as the proof is, both parties at that time so understood the sense in which the words were used in the contract, then plaintiffs are entitled to have the contract enforced in that sense. When these objections were interposed plaintiffs were putting in their testimony. That testimony, then before the court tended to show that the meaning to be attributed to the words in question was not clear, and we think the court properly admitted this proof. Possibly objections might properly have been sustained to one or two questions, hut the substance of the proof was competent. The fact that fourteen dents per cubic yard each way was a reasonable price for the work done was competent as tending to show that that was in fact the sense in which the parties mutually used those words. When defendant came to its proof it called civil engineers who testified that these words had a definite meaning in the profession of engineering, and that the words 6 6 Embankment borrowed” meant earth taken from the outside of the work to make an embankment or fill, and did not include earth taken from a cut on the line of the construction ; and that under this contract plaintiffs were entitled to be paid only fourteen cents per cubic yard for the handling of any earth, wherever obtained and wherever deposited. We are disposed to conclude, upon a careful examination of all the language in the specifications, that these civil engineers are probably right as to what the words actually meant. But if the superintendent and chief engineer of the company told plaintiffs before the contract was executed and while its terms were under consideration that the meaning was that they were to get pay both ways, and if both parties so understood the contract when they executed it, then that is the sense in which the contract is to be enforced by the courts, regardless of the question whether that was the correct interpretation of the words. Defendant introduced no proof questioning the correctness of the testimony as to this convérsation, and after the evidence of its .engineers was introduced defendant did not move to exclude the evidence introduced hy plaintiffs as to the conversation. We are of the opinion that no substantial error appears in the rulings of the court on this question.

The proof showed, without contradiction, that the part of the work which plaintiffs did perform was much the more laborious and expensive, and that it cost more than the contract price and that the work left undone hy the plaintiffs was the easy and cheap part of the work where the plaintiffs would have made their profits, if they had been permitted to finish the contract. They proved the cost per cubic yard of that which they did do, and an estimate of the less cost per cubic yard of that which they did not do. This proof was undisputed. There was a controversy as to whether the plaintiffs or the company were to blame for the plaintiffs not finishing the work. According to the plaintiffs’ proof the company forced them off the work after the hard part of the work had been performed, and seized their tools and machinery and did the easy work therewith itself. The company claimed that the plaintiffs alone were to blame for losing the rest of the contract. The jury seems to have been correctly instructed on this subject, and it decided these issues for the plaintiffs. We do not understand it to he seriously contended that the judgment is excessive if plaintiffs’ contentions are correct as to facts and as to the meaning of the contract.

The court gave an instruction at the request of plaintiffs that the burden of proving payment was on the defendant. This stated the law. There was, however, a stiplation as to the payments, and unless the company sought to prove some payments beyond those specified in the stipulation, there was no necessity to give this instruction. We fail to see, however, how it could have injured the defendant.

We find no -reversible error in the record and the judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
      The Cadillac Automobile Company, Appellant, v. Elmer E. Boynton et al., Appellees.

      Gen. No. 4,933.
    1. Injunctions-when biTl to restrain collection of judgment insufficient. A bill to restrain the collection of a judgment at law for alleged lack of service, etc., should do more than allege the existence of a good defense to the plaintiff’s action; it should also set up with particularity the facts with respect to the plaintiff’s claim and the facts which pertain to the defendant’s defense in order that the court may, from such facts, determine the legal sufficiency of such defense.
    2. Injunctions-what not hearing upon merits. Held, from the record in this case, that the hearing upon which the decree appealed from was predicated was not a hearing upon the merits of the action but was merely a hearing upon the motion to dissolve the injunction which had been granted upon the bill.
    3. Service oe process-who agent for purposes of service upon corporation. Held, from the contract and other evidence in this case, that the party served as agent of the corporation defendant named in the judgment, relief from which was sought in equity, was such agent as is contemplated by the statute.
    Bill in equity. Appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed August 10, 1908.
    Statement by tie Court. Appellant filed a bill in equity against Elmer E. Boynton and James Pease, sheriff of Cook county, Illinois, alleging that on July 22,1905, Boynton began a suit at law against appellant in the Circuit Court of BeKalb county and that a summons was issued on that day to the sheriff of BeKalb county, and that on September 21, 1905, it was served on E. H. Cohoon, a resident of Genoa, and on September 25, the summons was filed by the sheriff in the office of the clerk of the Circuit Court of Be Kalb county. The bill set out the return in full, which in proper form showed service on appellant by reading the same to E. H. Cohoon, agent of appellant, and delivering to him a true copy thereof, and that the president of appellant was not found in the county. The bill further averred that in said action a judgment was rendered for Boynton and against appellant on January 25, 1906, for $1,125 and that an execution thereon was in the hands of the sheriff of Cook county, who had demanded payment of said execution and threatened to levy upon the property of appellant to satisfy the same. The bill further averred that at the time of said service Cohoon was not agent of appellant, nor any officer of appellant, and that appellant had no office at that time in Be Kalb county; that appellant was not indebted to Boynton when said suit was begun, and is not now, and that if the appellant had been summoned or properly notified of said suit it would have had a meritorious defense, and now has a meritorious defense, but now has no adequate remedy at law. The bill prayed for an injunction restraining the collection of said judgment. The bill was sworn to by C. H. Foster, who on oath stated that he was the president and treasurer of appellant. The injunction was granted without notice and was served. Boynton answered the bill, asserting that at the time of-the service of said summons Cohoon was the agent of appellant, within the meaning of the word “agent55 in the statute of Illinois relating to service of summons in suits against corporations. The answer set up certain facts hereinafter mentioned with reference to the delivery of the copy of said summons by Cohoon to the secretary and president of appellant, and that they had due notice of the commencement of the suit several months before the judgment was rendered and negligently and carelessly omitted to make defense. The answer denied that appellant had a defense, and alleged that the judgment was for a bona fide debt owing by appellant to Boynton. Boynton then moved to dissolve the injunction, and a hearing was had. The record is in confusion as to whether the hearing was upon the motion to dissolve the injunction or upon the merits.
    The court dissolved the injunction and dismissed the ■bill, and complainant appeals from that decree.
    Bertrand F. Lichtenberger, Carnes, Faissler & Cochran, for appellant.
    Cliffe & Cliffe, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

It is clear that the allegations of the bill were not sufficient. After stating that process was not served upon appellant, it alleged that at the time Boynton began suit against appellant in the action at law, appellant was not indebted to Boynton in any amount, and if appellant had been summoned or otherwise properly notified in said suit, it would have had a meritorious defense to said claim. The statement that appellant had a good defense to the suit at law is not sufficient to authorize an injunction against the collection of the judgment. The bill should have stated the cause of action and also the defense with particularity, so that the court could determine whether that which-complainant considered a defense was in fact a defense. The facts should have been stated, and not mere conclusions. Reed v. N. Y. Exchange Bank, 230 Ill. 50. But appellees did not demur to the bill or question its sufficiency, and therefore cannot be heard here to say it was imperfect. Such defects must be raised by demurrer. Story’s Equity Pleading, secs. 453, 528; Lowden v. Wilson, 233 Ill. 340.

At the hearing no proof was offered by any one of either the cause of action or the defense. If this was a hearing on the merits, the absence of such proof authorized the decree dismissing the bill. When all that occurred is read as set out in the certificate of evidence, it is left in great doubt what was being heard. It began as a hearing of the motion to dissolve the injunction. Other things said indicated a hearing on the merits. The solicitor for appellees said that the affidavits of Mr. Cohoon and Mr. Olmstead were on file and could be read in evidence; that he had present the original appointment, signed by the president of appellant and by Cohoon, and that he would offer that in evidence, ‘ ‘ and that will raise the flat question of law right up to the court.” The contract between appellant and Cohoon was then read, and the affidavits of Olmstead and Cohoon, and another copy of the contract was read as a part of Cohoon’s affidavit. All this was read in evidence by and on behalf of the appellee, Boynton, the defendant, who alone offered proofs. He began the introduction of proof, a natural proceeding if it was the motion to dissolve which was being heard, but not the course which would naturally have been pursued if this was a final hearing upon the merits, in which case Boynton would have had no occasion to offer any proofs till complainant had made a case. It was then admitted by appellee Boynton, at the request of complainant, that Cohoon did not act as agent in any other way except under the terms of the written agreement. Both sides then rested, the complainant offering no proof, except said admission. All the proof related solely to the question of service. It is not conceivable that if this had been considered a trial of the case on the merits the defend-, ant would have been the one to begin offering proofs, and that no other proof would have been offered, or that if the court had decided that the bill should be dismissed because a meritorious defense had not been shown, appellant would not have asked the court to re-open the cause and permit it to offer the omitted proof. It appears clear to us from a perusal of the entire certificate of evidence, that the attention of counsel and the court was solely directed to the question whether the service was sufficient, or was such that the equitable remedy sought did not exist. Moreover, the decree first dissolved the injunction, and then recited ‘ ‘ as said injunction is the sole and only remedy sought in said bill of complaint” the bill is dismissed for want of equity. We therefore think it proper to first consider the service.

The bill set out and the answer admitted the return upon the summons. The return was sufficient to give jurisdiction of appellant in that action if E. H. Cohoon was, at the date of said service, September 21, 1905, the agent of appellant. This agency was denied in the bill and asserted in the answer. The proof showed that on February 24, 1905, E. H. Cohoon & Company was composed of E. H. Cohoon and John Hadsall. On that date appellant, an Hlinois corporation, as the first party, and E. H. Cohoon & Company, as the second party, entered into a written contract, signed by appellant by C. H. Foster, its treasurer, and by E. H. Cohoon & Company, and also by E. H. Cohoon and John Hadsall, individually. The body of the contract began as follows:

“1. That first party hereby appoints second party its exclusive agent for the sale of Cadillac Automobiles, supplied by party of the first part in the following described territory, to-wit: Northern part of De Kalb county, down to and including Milan, Afton and Pierce- townships.
2. That it is hereby mutually agreed in respect to said agency as follows: (a) This agency is to exist until terminated as hereinafter mentioned, (b) Second party is not to sell, or solicit for sale, any such automobiles outside of the above described territory, (c) Second party agrees faithfully to represent and advertise such automobiles; to make all reasonable efforts to promote and increase the sales thereof; to keep in stock at least -automobiles supplied by first party, for the sole purposes of demonstrating, exhibiting to intending purchasers, and to maintain the same in good order and repair, (d) Second party agrees to establish a repository and repair station for the satisfactory display, care and repair of such automobiles, to respond promptly to all inquiries respecting the purchase of said automobiles; to keep first party fully informed as to the number of inquiries for, and sale of, automobiles, within said territory, and any other matters affecting the interests of first party, in connection with this agency, to sell all vehicles covered by this agreement, and all their parts, attachments, and equipment, at the selling prices, according to lists thereof to be furnished by said first party, to do nothing that will in any way infringe, impeach or lessen the value of any of the patents under which the vehicles furnished by party of the first part are manufactured, and not to sell, or offer for sale, directly or indirectly, any new automobiles, or motor cars, which are regarded by first party as in competition with the vehicles covered by this agreement.”

By other provisions of the contract appellant was to sell Cadillac automobiles to the second party at a discount of fifteen per cent., and parts and attachments at a discount of ten per cent., from its price list, for cash f. o. b. cars, Detroit. The contract in terms provided that appellant should sell the machines to Cohoon & Company and that the latter should purchase and pay for them. A part of the contract, marked 1 ‘ additional, ’ ’ gave Cohoon & Company the privilege of working in Ogle county until occupied, and another provided that the contract should expire by limitation on October 1, 1905, and could be canceled before upon thirty days’ written notice. There were many other provisions, which have no apparent bearing upon this controversy. The affidavit of Olmstead showed that at the time in question E. H. Cohoon purported to act as the agent of appellant at the village of Grenoa, in said BeKalb county; that he had on hand a supply of pamphlets, circulars and descriptive matter of appellant for general circulation; that appellant had a repository and repair station for the display, care and repair of Cadillac automobiles, in charge of E. H. Cohoon at Genoa; that Cohoon was in the habit of responding to inquiries in regard to the purchase of Cadillac automobiles, in Genoa, and was engaged in the promotion of Cadillac automobiles, and was recognized and purported to act in said village for and on behalf of appellant as its agent in the sale of Cadillac automobiles and in promoting the interests of appellant, and that it was generally understood in that community that said E. H. Cohoon was the agent of appellant, and that he held himself out to the world as the agent of appellant. The affidavit of Cohoon stated that he did act as the agent of appellant under the terms of said written agreement, and that from February 24, 1905, to October 1,1905, he performed, as agent of appellant, all the duties prescribed by said agreement according to its terms, and acted as agent for appellant in the territory mentioned in said agreement and transacted for it its business in the sale of automobiles, repairs, automobile parts and attachments; that the summons in question was served upon him by the sheriff while he was acting as such agent of appellant; that he soon thereafter sent said summons to appellant as hereafter stated; that, after the service of the summons upon him, he, as agent under said written agreement, transacted its business in the territory mentioned in the agreement in the sale of its automobiles, automobile parts and attachments, and in other matters affecting the interests of appellant in connection with his said agency. Some of these statements ■ in the affidavits were mere conclusions, and therefore not competent, but the affidavits were sufficient to show that Cohoon did all that the contract authorized him to do. Was he an agent of appellant for the purpose of the service of the summons upon appellant?

In Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98, appellant had been served by delivering a copy of the summons to one Philip L. Raphael, the agent of said colony, the return being similar in language' to that here involved. Appellant filed a plea in abatement which alleged that Raphael was not and had not been its agent. It was defeated upon the trial of that plea and appealed from the judgment upon the verdict. The court there modified a certain instruction asked by appellant by adding that if Raphael held himself out as the defendant’s agent and defendant knew he so held himself out and if the summons was served by leaving a copy with Raphael then the service was sufficient. It was held that the testimony there recited justified the modification. At the request of appellee the court gave this instruction: “If a corporation knowingly and voluntarily permits a person to hold himself out to the world as its agent, said corporation will be bound as principal to those dealing with such person to act upon the faith that such agency exists; and this is true irrespective of whether or not an agency in fact exists.” It was held that this instruction announced a well-settled rule of law applicable to the relation of principal and agent. The court also said: “The appointment of an agent need not be proved by direct testimony that the principal by affirmative words constituted him his or its agent. The appointment may be established by implication of law arising out of the conduct of the parties or by way of estoppel. We see no reason why this implication or estoppel will not arise as well in favor of one who seeks to serve the process of the courts on the agent as in favor of one who seeks to bind the principal by the acts and contracts of the agent.”

Board of Trade v. Hammond Elevator Co., 198 U. S. 424, was a case where jurisdiction of the Hammond Elevator Company had been obtained in Illinois by like service upon an alleged agent, and on motion to set aside the service the service was quashed and, counsel for plaintiff stating that he could not make any different service, the bill was dismissed and the plaintiff appealed. In that case there was a written contract between the Hammond Elevator Company and the person upon whom service was had as agent in which it was expressly stated that the relation of principal and agent did not exist between them. It was held that this contract was not decisive of the relations as to third parties dealing with them upon the basis of the existence of such relations. The court quoted from an earlier decision where the authority of the person served to receive service of process was denied by the defendants, as follows: “In such case it is not material that the officers of the corporation deny that the agent was expressly given such power, or assert that it was withheld from him. The question turns upon the character of the agent, whether he is such that the law will imply the power and impute the authority to him, and if he be that kind of an agent, the implication will be made, notwithstanding a denial of authority on the part of the other officers of the corporation. * * * In the absence of any express authority the question depends upon a review of the surrounding facts and upon the inference that the-court might properly draw from them.” In that case (as here) the contract made the alleged agent buy and the Hammond Elevator Company sell the commodities involved. After considering the evidence, it was said: “Notwithstanding these protestations and excessive precautions used to prevent the correspondent being held as agent, the method of business shows that the party really interested in the transaction is the defendant, and that the correspondents are compensated as if they were agents, and not principals.” The court also said: “It is evident that if these correspondents be not regarded as agents in these transactions, it is possible for the defendant to establish similar correspondents in a dozen cities in at least a dozen states of the Union, and an enormous business be built up, in which the defendant company is the real principal, with no possibility of being sued except in the States of Indiana and Delaware.”

If the contract before us merely provided that appellant should sell Cadillac automobiles to Cohoon & Company and that the latter should buy them from appellant, and that Cohoon & Company should have the exclusive right to sell Cadillac automobiles within the territory named and during the period of time covered by the contract, and that Cohoon & Company should sell only at the prices fixed by appellant and should buy the machines át a certain discount from that price, no doubt such contract would not make Cohoon & Company agents for appellant upon whom summons against appellant could be served, but this contract contains far more than that. The contract expressly declares that appellant appoints E. H. Cohoon & Company its exclusive agents for the sale of Cadillac automobiles within certain territory. It thereby put in the hands of Cohoon written authority to hold himself out to the world as agent of appellant. It made it the duty of E. H. Cohoon & Company to faithfully advertise appellant’s automobiles, and to make all reasonable efforts to promote and increase the sale thereof. It required said agents to keep appellant fully informed as to the number of inquiries for automobiles and of any other matters affecting the interests of appellant in connection with said agency. It provided that appellant should supply automobiles to Cohoon & Company for the sole purpose of demonstrating and exhibiting them to intending purchasers, and required the agents to keep the same in good order and repair. In many respects, including some not expressed in the foregoing statement, E. II. Cohoon & Company did not, by the contract, occupy the position of persons merely buying merchandise from appellant and becoming the sole and exclusive owners thereof, but they were required to sell and deal with the property under many restrictions as to the price and control of the goods, and the discount of fifteen per cent, and ten per cent., respectively, was the equivalent of a commission. The only difference between this and the ordinary case of an agency to sell goods for another on commission is that here, instead of the principal retaining the title of the goods and receiving from the agents the remittances, orders and notes for the goods sold, the agents here were invested with the title to the goods ordered and were alone responsible to the principal for the price thereof. We conclude that Cohoon & Company were the agents of appellant and were authorized to represent it and look after its interests within certain parts of DeKalb county at the time this service of summons was had. Moreover, the uncontradicted proof is that, armed with this written contract declaring Cohoon and Hadsall to be the agents of appellant, Cohoon did hold himself out to that community as the agent of appellant and did perform the duties for appellant which the contract required him to do. We are of opinion that the service was good and therefore the bill was properly dismissed.

But again, upon receiving a copy of this summons from the sheriff, Cohoon placed it in the hands of Olmstead, who was going to Chicago, and directed him to take the copy to Chicago and to turn the same over to some of the officers of appellant; and Olmstead, on October 1, 1905, in obedience to said directions from Cohoon, took said copy of the summons to Chicago and delivered the same to Foster, who was then the treasurer of appellant and'who swore in his affidavit to the bill of complaint that he was also president of appellant, and Foster then took said copy of the summons and read it and said he understood it, and threw it down upon his desk, and said that that did not amount to anything. This was about four weeks before the return day of the summons. Appellant had full and complete notice of the pendency of the suit and of the time and place when the summons was returnable, and knew so much of the nature of the action as a summons .contains. The treasurer said he understood it and that the suit did not amount to anything. The allegation in appellant’s bill that it now has no legal remedy was evidently so framed because appellant, at the time just referred to, had a complete legal remedy. If Cohoon was not its agent, upon whom service of process against it could be had, a plea in abatement would have furnished appellant a complete legal defense, and upon the trial thereof the service of the summons must have been quashed. If Cohoon was not its agent then appellant would have run no risk of being subjected to the jurisdiction of the Circuit Court of DeKalb county in that cause. For reasons of its own appellant chose to neglect that plain legal remedy. If Cohoon was not its agent, it of course had a right to stay out of court and take its chances of defeating the levy of an execution by replevin or other remedy at law, but it does not seem to us in accordance with the principles of equity that with all the knowledge which its treasurer possessed long before the return day of the summons, that service was claimed to have been had upon it, it could neglect its perfect legal remedy and then apply to a court of equity for equitable relief by injunction.

The decree is therefore affirmed.

Affirmed.


text:
    Lizzie M. Holroyd, Defendant in Error, v. Edgar B. Millard et al., Plaintiffs in Error.
    Gen. No. 4,957.
    1. Statute of Limitations—when loss clause of insurance policy not sufficient to prevent running of. The fact that an insurance policy issued to a mortgagor contains a loss clause in favor of his mortgagee, against whom the Statute of Limitations has been invoked in foreclosure proceedings, does not prevent the operation of such statute, in the absence of proof of knowledge on the part of such mortgagor that the policy in question had been so made payable.
    2. Statute of Limitations—when does not bar foreclosure, notwithstanding debt secured is barred. The mortgage of several parties may be foreclosed as to all .of such parties, notwithstanding the note secured bjj the same is barred as to one of the makers, if the same has been kept alive as to the other by payments made by him.
    3. Evidence—when question of competency of witnesses cannot be raised. Parties cannot permit witnesses to testify in the apparent hope of gaining an advantage, and then, for the first time upon appeal, question their competency.
    4. Evidence—when objection not sufficient to raise question of competency. A general objection as to the competency of a witness participated in by all defendants to a cause, is not sufficient to raise the question of the competency of such witness as against one of such defendants if the evidence of such witness be competent as to any of such objecting defendants.
    5. Findings oe fact—when, by chancellor will not be disturbed. The findings of fact by a chancellor will not be disturbed even though findings of fact by a chancellor will not be disturbed even though he has admitted the evidence of an incompetent witness if there is sufficient competent evidence in the record, to sustain the findings made.
    Foreclosure. Error to the Circuit Court of DeKalb county; the Hon. Ci-iables A. Bishop, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    J. B. Stephens and Jones & Rogers, for plaintiffs in error.
    George Brown, for defendant in error; W. C. Kellum, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

On December 3, 1890, Harriet F. Millard and Edward B. Millard, her husband, executed their promissory note for $500 with interest at eight per cent, per annum until paid, due one year after date, and payable to Lizzie M. Brown. The consideration was principally the payment of a prior note signed by both makers. The rest was a new loan of money which E. B. Millard afterwards used in his business. To secure said note, the makers on the same day executed their mortgage upon a lot in the village of Genoa, in DeKalb county, occupied by them as a homestead, the title to which was in Mrs. Millard. By marriage, Lizzie M. Brown became Lizzie M. Holroyd. Interest was indorsed as paid upon the note, the last indorsement being dated January 12,1897, and it covered the interest to December 30, 1896. Mrs. Millard died January 14, 1906, intestate. On December 14, 1906, Mrs. Holroyd filed this bill to foreclose said mortgage for the payment of the balance due upon said note, making defendants thereto E. B. Millard, the surviving maker, and the heirs at law of Mrs. Millard, deceased, two of whom were minors, and the rest adults. The minors filed an answer by a guardian ad litem, and the adult defendants and one of the minors filed a plea of the ten-years ’ Statute of Limitations. There was a hearing, and a decree of foreclosure; to reverse which the defendants below have sued out this writ of error.

Section 11, chapter 83, of the Bevised Statutes relating to limitations, enacts that no person shall commence an action to foreclose a mortgage unless within ten years after the right of action accrues; and section 16 requires actions on promissory notes to be commenced within ten years next after the cause of action accrues, but provides that if any payment shall have been made on such note within said ten years, then the action may be commenced at any time within ten years after the time of such payment. E. B. Millard paid the interest above referred to. Complainant did not prove that Mrs. Millard, the owner of the mortgaged land, was a party to the payment or consented thereto or had any knowledge thereof, except as the same might inferentially appear from the fact that on July 23, 1902, more than ten years after the original maturity of said note, a policy of insurance on the house on this property, which must have been made out in her name, contained a provision 6 6 the loss, if any, payable to Dillon S. Brown or Brown and Brown or Lizzie Holroyd, as her interest as mortgagee may appear,” or some such language. In the absence of proof that Mrs. Millard saw this insurance policy or knew of this provision, that indorsement was insufficient to show that this debt was kept alive with her knowledge and consent. It is therefore clear that at the time of her death, under the proofs here, Mrs. Millard was discharged from the debt. The question is whether this mortgage could still be foreclosed against her, and can be foreclosed against her heirs at law succeeding to her title.

No case exactly in point, decided by our Supreme Court, has been called to our attention, but there are a number of decisions more or less analogous in principle. In Emory v. Keighan, 88 Ill. 482, Tiner gave Truesdale a real estate mortgage to secure his note due February 12, 1858. At that time the period of limitation was sixteen years. On November 11, 1875, Cochrane, assignee of Truesdale, published notice to foreclose under a power of sale, and made a deed of the premises on December 10, 1875, under such power of sale. Title under this deed was set up as a defense as outstanding title in an ejectment suit. The court held that the debt was barred, and that the attempted foreclosure passed no title. The court said that no proof was offered to show that the debt had been kept alive by later payment or by part payment at a later day, or by an action on the note before the Statute of Limitations had run, carried to judgment. The court also said that the rights of one holding under the mortgagor may be affected by payment of interest by the mortgagor after maturity and before the Statute of Limitations has run, although he be a party to neither; that the grantee of the mortgagor, though not a party to the payment of interest, is affected thereby so far as regards Ms defense under the Statute of Limitations; that if defendant had proved a payment on the debt less than sixteen years before the sale under the mortgage, this would have shown validity in the mortgage at the time of the sale and paramount title in the purchaser, if the sale was otherwise valid. It was held that the defendant could have availed himself of any fact which showed that the Statute of Limitations had not run against the mortgage debt. Schifferstein v. Allison, 123 Ill. 662, was a suit begun in 1886 to foreclose.a mortgage securing a note due October 23, 1875. Several payments had been made, the last on December 12, 1882. The present Statute of Limitations above referred to applied to tMs debt and was set up in defense. It was held that the mortgage confers, not upon its holder, but upon the holder of the debt, the right to resort to the property for its payment ; that the right to foreclose can only accrue under the debt; and that the right accrued after the last payment upon the debt, as the cause of action is deemed to have accrued after the occurrence of that which is held to revive the cause of action. In Hibernian Banking Association v. Commercial National Bank, 157 Ill. 524, it was held that the mortgage is a mere incident to the debt, and is barred when the debt is barred, and not before. In Waughop v. Bartlett, 165 Ill. 124, it was recognized that one joint maker cannot, by a payment, stop the running of the statute against another joint maker unless he was the agent for that purpose; but it was held that where a joint maker of a note has authority from Ms co-maker to make payment on the debt his acts will bind his co-maker and bring a debt otherwise barred within the statute. Roberts v. Tunnell, 165 Ill. 631, was a bill filed January 11, 1895, to foreclose a mortgage securing a note due February 4, 1880, and given by Allen, who died in 1887. Because of delay in administration, a suit at law could have been maintained against the administrator at the date when the hill was filed, against wMch the Statute of Limitations could not have been successfully interposed. The title to the mortgaged premises had passed to heirs. It was held that the mortgage was but an incident to the debt, and that the period of limitation would not expire till the debt was barred; that as long as the debt was alive and an action could be maintained on the note, the owner of the debt could foreclose the mortgage. In Aetna Life Insurance Co. v. McNeely, 166 Ill. 540, it was held that payment by the widow of the debtor, she not being liable for the debt, and making payment only to protect her homestead, covered by the mortgage to secure the debt, did not keep the mortgage alive against the heirs. Richey v. Sinclair, 167 Ill. 184, was a foreclosure suit. The statute would have become a bar to the debt secured by the mortgage on February 5, 1890, if the mortgagor who owed the debt had remained in the state. He left the state on June 1, 1884, and did not return. By another provision of our statute where the debtor leaves the state after the cause of action accrues the time of his absence is not a part of the time limited for the commencement of the suit. He conveyed the land. The bill was filed January 4, 1895, against his grantees. The mortgagor and debtor was not made a defendant to the foreclosure. It was held that the fact that the mortgagor was not a defendant was immaterial and that the Statute of Limitations had not run against the debt, and was not a defense, and that if the debt had not been paid or barred, the mortgage could be foreclosed. The court said, “So long as the mortgage indebtedness exists as a binding obligation against the mortgagor, the mortgage securing that indebtedness may be foreclosed.” The court reiterated its holding in Emory v. Keighan, supra, that one holding under the mortgagor may be affected by a payment on the mortgage debt, though he is not a party to it, so far as regards a defense under the Statute of Limitations. In Murray v. Emery, 187 Ill. 408, Poucher had given notes evidencing the purchase money of land conveyed to Spaulding; and Spaulding gave a trust deed to secure said notes, the last of which matured on March 13, 1877. It was held immaterial why Poucher signed the notes instead of Spaulding. Spaulding conveyed the land to Butler, who assumed the encumbrance. Butler conveyed to Harts, who assumed the encumbrance. The notes had been assigned to one Hart, to whom Harts paid interest on the debt for nearly twenty years. Harts then signed an agreement specifying that the delay to enforce payment had been at his request, and that in consideration thereof he would not set up the Statute of Limitations against any suit to foreclose, and that this agreement should bind his heirs and assigns. Hart died, and Emery became his executor. Harts conveyed the land to Murray in 1897. Murray claimed to have bought the land without knowledge of the encumbrance, and filed a bill against Emery and others to remove the trust deed as a cloud on his title. Emery and others filed a cross-bill to foreclose the trust deed. This was over twenty years after the maturity of the notes by their terms. The special agreement between Harts and Hart was not" of record. It was held that the indebtedness had been kept alive by the payments made by Harts, who, though not the original debtor, had agreed to pay the debt, and that while Harts owned the property the Statute of Limitations would be no defense to a foreclosure; and that when Murray took title from Harts the public records notified him that the property was subject to this trust deed, which was not barred unless the debt it secured was barred. Kraft v. Holzmann, 206 Ill. 548, was a suit to foreclose a trust deed given to secure a note which matured by its terms on May 15, 1888. On May 15, 1893, the makers wrote upon the back of the note an extension of the time of payment to May 15, 1898. The extension agreement was not recorded. The bill to foreclose was evidently filed much more than ten years after the original maturity of the debt. Holders of later liens resisted the foreclosure. It was held that when the time of payment has been extended by payment or otherwise, the statute will not run against the note; that it was not necessary to record the extension agreement, but that persons subsequently dealing with the land were bound to take notice of the unreleased trust deed and to ascertain at their peril whether the debt secured by it had been paid or barred, or the lien had ceased to exist. “It was not necessary that subsequent encumbrancers or purchasers should have notice of any such extension. The recording- of the deed of trust gave all the notice necessary to be given.”

In some other jurisdictions a different rule prevails, and it has been followed by one or two Appellate Court decisions in this state to which our attention has been called. The fact that a different construction has been given in other states to statutes somewhat similar to our own is recognized in Kraft v. Holzmann, supra. There are several cases in Kansas quite similar to the one now before us, which were there determined in harmony with the principles approved by our Supreme Court. In Perry v. Horack, 63 Kan. 88, husband and wife executed a note and a mortgage to secure it upon their homestead. The husband died. The widow made payment which avoided the Statute of Limitations as to her. A suit to foreclose was begun by the owner of the note against the widow and children. It was held that the widow was liable for the entire debt and that the mortgage was given to secure the entire debt, and that as the payment made by the widow kept the debt alive as to her, if the payments were treated as made for herself alone, the mortgage would still be enforceable against the interests of the heirs of the husband. In Jackson v. Longwell, 63 Kan. 93, husband and wife had given two notes and two mortgages securing them upon the individual real estate of the wife. Payments were relied upon to avoid the Statute of Limitations. It seems that the payment on the first note secured by the first mortgage had not been made by the wife, and it was urged that there could be no foreclosure of that mortgage to secure that note. It was held that the wife mortgaged the property, not only to secure the joint obligation of herself and husband, but also the obligation of the husband as fully as it secured the obligation of the wife; that the Statute of Limitations having run in favor of the wife, she was discharged from personal liability on the note and sustained the same relation to it as though she had never signed it, but that this did not affect her agreement that her property should be subject to the payment of her husband’s debt, evidenced by the note, and that the case was the same as though the owner had signed the note when it was made, and both had given a mortgage to secure it, and that a decree of foreclosure was proper. In Skinner v. Moore, 64 Kan. 360, a note executed by a husband alone was secured by a mortgage executed by the husband and wife on real estate occupied by them as a homestead. The husband made payments of interest upon the note without his wife’s knowledge, which prevented the Statute of Limitations from running against the note as to the husband at the time when the suit to foreclose was brought. It was held that the court below erred in refusing foreclosure; that recovery on the note was not barred; that no one but the husband was bound to pay the debt; that the mortgage secured the payment of the note' so far as it was a valid and existing demand against the maker.

If this mortgage had been so worded as to secure only the liability of Mrs. Millard upon the note, then foreclosure would have been barred, as Mrs. Millard, so far as the proof here shows, had ceased to be liable on the note before she died. But the mortgage secured also the liability of E. B. Millard on the note. When this bill to foreclose was filed, E. B. Millard was still liable on the note, because the running of the Statute of Limitations had been arrested by the payment by him of interest on the note up to December 30, 1896, which was less than ten years before this bill was filed. We are of opinion that under the foregoing authorities, as E. B. Millard was still liable upon the notes, ■the mortgage could still be foreclosed to enforce its payment.

It is contended that the proof of these payments of interest was not competent against the heirs of Mrs. Millard, and therefore that it is not established as against them that this note was still alive when the bill to foreclose was filed. Mrs. Holroyd ceased to own this note about five years after its date, and it then became the property of her brothers, Dillon S. Brown and Charles A. Brown, constituting the firm of Brown and Brown, bankers, at Genoa. She did not indorse the note to them. Mrs. Holroyd and each of the Browns were witnesses, and Dillon S. Brown testified that E. B. Millard paid to him on January 12, 1897, the last interest indorsed upon the note. It is contended that Mrs. Holroyd was not a competent witness against the heirs because she owned the legal title to the notes, and that the Browns were not competent witnesses against the heirs because they owned the equitable title; and that the other evidence should be rejected, and then the payment of interest is not proven. There are in this record several answers to these contentions.

First, no such objection' was made at the hearing. Most of the testimony of these witnesses was given without any objection whatever being interposed. The defendants apparently expected to profit by the testimony of these parties. They had a right to permit these parties to testify without objection, if they desired. We do not think the question of their competency can be raised in this court by the adult heirs for the first time. Second, such objections as were made while these witnesses were testifying were general objections by all the defendants. E. B. Millard was one of these defendants. All of this evidence was competent as against him. The general objection by all the defendants could not therefore be sustained. Third, we are disposed to hold that there is in the record enough testimony which would have been competent against the heirs, if they had speqially objected, to establish the last payment of interest by Millard. One witness, who was entirely competent and had no interest in the suit, testified that this note first came into her hands in the course of her business as general clerk and bookkeeper and stenographer for Brown and Brown, in March, 1900, and that it then bore the indorsement of interest which now appears upon the back thereof, and that she saw it and handled it several times a year thereafter, and no change was made. Certain documents are in evidence, including the passbook of E. B. Millard, in the bank, which tend to show the payment of this interest by him out of his bank account with Brown and Brown on January 12, 1897. But, fourth, we question whether it was necessary that the proof of the payment of interest by Millard at the time mentioned should be competent as against the heirs. All that the complainant needed to show was thát Millard was still liable upon the note when .this bill was filed, by evidence which would hold him. Suppose that complainant had at the same time brought a suit at law against Millard on this note. On the trial of that suit Mrs. Holroyd and the Browns would have been competent witnesses to establish that the note was still due and unpaid, and to overcome any plea of the Statute of Limitations he might file by testifying that he paid this interest at the time mentioned. If such a judgment had been obtained against him, that would have been competent proof in this action to show that he is still liable upon the note, and that therefore the mortgage can be foreclosed. We are therefore disposed to hold that if evidence that bound him showed that the note was still alive, that would authorize a foreclosure.

The hearing of this cause in the court below was fragmentary, proofs being offered on different occasions. It seems that on one of these times the guardian ad litem examined a witness or two as if for the complainant. The certificate of evidence recites that he appeared for the complainant with the attorney whose name is signed to the bill as complainant’s solicitor. He made one or two objections to testimony, which objections it is now urged were not favorable to the minors. It is urged that a reversal should be had because of this. It is said in explanation that he had forgotten that he was guardian ad litem, and acted temporarily for the complainant’s solicitor when the matter was called up in his absence. The certificate of evidence also shows that J. B. Stephens appeared for the defendants, which naturally means for all the defendants. He filed a plea, not only for the adult defendants, but for one of the two minors. The interests of all the heirs at law were exactly alike, and those interests were ably and properly defended. The guardian ad litem had a right to ask questions and make objections. No interests of his minors have been sacrificed or have lacked proper protection. The only thing the guardian ad litem could have done which was not done, either by him or by the solicitor for the adult heirs, was to make a specific objection to the testimony of Mrs. Holroyd and the Browns on the ground that they were not competent witnesses against the heirs; and what we have already said indicates our belief that the interposition of that objection would not have prevented the present decree, though it might have put the complainant and the equitable owners of the note upon their guard to present other competent evidence of payment. We think the record indicates that the solicitor for the heirs considered it to their advantage to permit Mrs. Holroyd and the Browns to testify. We do not approve of the course pursued by the guardian ad litem,- but we are of opinion that the interests of the minor defendants were fully protected.

Finding no reversible error in the record, the decree is affirmed.

'Affirmed.


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    Mark H. Hubbell et al., Appellees, v. Edward C. Heidrich, Appellant.
    Gen. No. 4,970.

      Vebdict—when set aside as against the weight of the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Jay T. Hunter, for appellant.
    Dailey & Miller, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant sold and conveyed a lot in the city of Peoria for $2,250 to L. P. Cook. Hubbell & Newsarn, partners in the real estate business, the appellees, sued appellant for commissions upon said sale and had a judgment before a justice and again in the Circuit Court, from which latter judgment defendant below appeals.

There is a sharp dispute as to the facts. We have studied the evidence in the record. Except as to the fact that appellant conveyed the premises to Cook and received the purchase price, Newsarn was the only witness for appellees. According to his testimony, he drove Cook and wife about the city and showed them various lots, and among others appellant’s lot, and told them the price and urged them to buy it and recommended its merits, and afterwards called up appellant by telephone and told him that Cook was looking at the lot and would probably buy it; and appellant urged Newsarn not to let Cook get away from him. This is all that Mewsam claims appellees did to effect a sale. Appellant admits that he had authorized Mewsam to try to sell the lot, but he denies that Mewsam ever telephoned him about Cook, or that he knew till he was sued that Mewsam had seen Cook or had any connections with his purchase. Mr. and Mrs. Cook testified that Mewsam did drive them about the city and show them certain lots before they went to the agent from whom they bought this lot, but each testified that they had no recollection that News am showed them appellant’s lot, and they are sure that if he did. drive by it and speak of it to them they did not get out and go upon it. They also testified that nothing occurred during that drive to cause them to think of buying appellant’s lot. Callender & Causey, real estate agents, also had this lot for sale as agents for appellant. Crimson was in their employ. A week or so after Mewsam took Mr. and Mrs. Cook about the city they went to the office of Callender & Causey, and Crimson drove them about the city and showed this lot. They got out of the buggy and went upon the lot and were pleased with it. Still later Mr. and Mrs. Cook visited the lot alone and decided to buy it. Cook went to the office of Callender & Causey and there completed a bargain with Crimson, who drew the necessary deed and went to appellant and had it executed, and after-wards exchanged the papers with Cook. Bach side found flaws in the testimony produced on the other side. We have considered all these criticisms. The proof is that appellant did not call the name of Cook as a possible purchaser to the attention of Callender & Causey or of Crimson. There is in our judgment a clear preponderance of the evidence that Mewsam did not bring the purchaser and the seller together, and did nothing which brought about the sale, and therefore his firm is not entitled to commission. While in a case of conflicting testimony much weight must be given to the verdict of the jury and its approval by the trial judge, both of whom saw the witnesses, yet when, after giving due weight to these considerations, we still find that the judgment is unsupported by the proof, it becomes our duty to award a new trial. C. & A. R. R. Co. v. Heinrich, 157 Ill. 388; I. C. R. R. Co. v. Hecker, 129 Ill. App. 375, and cases there cited.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    Arthur Keithley, Appellant, v. John S. Stevens et al., Appellees.
    Gen. No. 4,976.
    1. Tobts—when payment of witness fees 6y non-party does not authorize right of action. It is not an actionable wrong for a citizen to pay the fees of a witness who has been called and who has testified in a disbarment proceeding.
    2. Malicious prosecution—effect of judgment of conviction. A judgment of conviction is conclusive against an action for malicious prosecution, notwithstanding false evidence may have induced such conviction.
    3. Malicious pbosecution—when action for, does not lie. Malicious prosecution does not lie for the unfounded, malicious and unreasonable prosecution of a civil suit where there has been no arrest of the person or seizure of the property of the defendant.
    Action for malicious prosecution. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court, at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Arthur Keithley, for appellant.
    John S. Stevens, Joseph A. Weil and Francis H. Tichenor, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

A petition was presented to the Supreme Court of this state for the disbarment of Arthur Keithley, an attorney who practiced law at Peoria. The cause was referred to a commissioner, who took the proofs and filed a report. The Supreme Court entered a judgment striking the name of Keithley from the roll of attorneys. Keithley sought a rehearing, which was denied. The circumstances appear in the opinion of the Supreme Court reported in People ex rel. Scholes, State’s Attorney, v. Keithley, 225 Ill. 30.

Thereafter Keithley brought this suit against certain lawyers and other citizens and a newspaper company of Peoria, to recover one hundred thousand dollars from them as damages for assisting in procuring his disbarment. The court sustained demurrers to the amended first and second counts and to the original third count of the declaration. Keithley elected to abide by these pleadings, and the defendants had judgment, from which Keithley prosecuted this appeal.

The declaration does not charge that Keithley was not guilty of the offenses of which he was found guilty by the Supreme Court, and for which offense he was disbarred. It does not charge that he was wrongfully disbarred. It is manifest that he could not be permitted to so charge when he sets up the final judgment of the Supreme Court against him on those subjects. The damage which was done him was done by the judgment disbarring him, and that judgment is final and conclusive against him that he was lawfully disbarred.

The declaration charges that defendants examined witnesses against Keithley and cross-examined witnesses whom he presented. This the defendants had a lawful right to do, and cannot be held responsible in damages for exercising that right. It charges that they hired and paid witnesses who appeared and testified against Keithley. Witnesses cannot be compelled to appear in a civil suit till their fees are paid. Healey v. People, 139 Ill. App. 363, and cases there cited. Defendants had therefore a right to pay the witnesses their lawful fees and mileage, and it is not charged that defendants paid the witnesses any more than the amount to which they were legally entitled. It does not aver that the witnesses were hired to testify falsely.

The declaration charges that defendants and other witnesses called against Keithley testified falsely. This seems to be a mere conclusion of the pleader. No alleged fact which was testified to by them is stated, which it is claimed was untrue, nor is it shown nor averred that the alleged false testimony was material. It must be presumed that the claim that the testimony against Keithley was false, was submitted to the Supreme Court by Keithley in his defense, and that the material testimony against him was adjudged to be true and not false. While that judgment stands in full force it is conclusive against Keithley that the material parts of the evidence upon which it was based were true. If that judgment was based upon false testimony (which this declaration does not charge, and does not even intimate, except it be by remote inference and implication), Keithley’s remedy is not by a suit at law against his prosecutors. In such suit at law this judgment which he has set up is conclusive against him, even if false evidence was introduced by his opponents. Burton v. Perry, 146 Ill. 71,102; Evans v. Woodsworth, 213 Ill. 404; Pratt v. Griffin, 223 Ill. 349; Chicago Title & Trust Co. v. Moody, 233 Ill. 634. The conclusiveness of the adjudication is further supported by what is said in L. N. A. & C. R. R. Co. v. Carson, 169 Ill. 247; Markley v. People, 171 Ill. 260; People v. Hill, 182 Ill. 425; and Smith v. Lewis, 3 Johns. 157. This subject is very fully discussed in 1 Ereeman on Judgments, 4th Ed., sections 247, 248, 249, 284, 289. In the latter section the author says: “The settled policy of the law forbidding that a matter once adjudicated shall be again drawn in issue while the former adjudication remains in force does not permit the prosecution of an action for obtaining a judgment by false and fraudulent practices, or by false and forged evidence. * * * If there was any fraud in the creation of a cause of action, that fact must be interposed as a defense, and if not so interposed, cannot be made the basis of an independent action.” In 1 Herman on Estoppel, see. 395, the following language is quoted: “Every litigant enters upon the trial of a cause knowing not merely the uncertainty of human testimony, when honestly given, but that, if he has an unscrupulous antagonist, he may have to encounter fraud of this character. He takes the chances of establishing his case by opposing testimony, and by subjecting his opponent’s witnesses to the scrutiny of a certain cross-examination. The case is not the less tried upon its merits, and the judgment rendered is none the less conclusive, by reason of the false testimony produced. # * * The rules of evidence, the cross-examination of witnesses, and the fear of criminal prosecution, with the production of counter testimony, constitute the only protection afforded by the law to litigants in such cases. * * * If the merits could be a second time examined by a new suit, upon a suggestion of false testimony, documentary or oral, in the first case, there would be no end to litigation. The greater the interests involved in a suit the severer generally the contention; and in the majority of such cases the recovery of judgment would be the occasion of a new suit to vacate it or to restrain its enforcement.”

The declaration charges that defendants paid money to the commissioner to whom the disbarment suit was referred. The purpose for which this was paid is not averred, nor the amount. It must be presumed, against the pleader, that this was paid for the fees of the commissioner and for the cost of taking down the testimony heard before him. It is obvious Keithley would not pay for this testimony and report. The commissioner was entitled to his fees and proper expenses. The citizens who sought Keithley’s disbarment had a lawful right to advance these sums, and violated no right of Keithley when they did so. It is not charged that the commissioner was paid more than his lawful fees and legitimate expenses.

The declaration charges that defendants caused the commissioner, a lawyer, and his son, his law partner, to be hired as attorneys in other matters which defendants controlled, and to be paid exorbitant fees, and caused the commissioner to be praised in a newspaper for his honesty, for the purpose of inducing him to report against Keithley, while they published false articles against Keithley. These publications against Keithley are not set out, but are designated as “false, scurrilous and malicious diatribes.” These things all occurred before the report was filed, and must be presumed to have been known to Keithley at that time. If they occurred and affected the report of the commissioner adversely to Keithley, it was Keithley’s privilege and duty to show these facts to the Supreme Court before the report was acted upon by that tribunal. We are satisfied that under this declaration it must be assumed against Keithley that all facts which would tend to show that the testimony against Keithley was untrue, that the real truth did not warrant his disbarment, and that the report was obtained by any improper influence, have been presented to the Supreme Court in Keithley’s behalf, or that he had full opportunity to present them, and that the judgment of the Supreme Court which he sets up is decisive against him on those subjects in this action at law.

There are circumstances under which a party may be liable for an abuse of legal process. If one cause the arrest of another upon a criminal charge, intending not to prosecute the charge, but expecting that the defendant will settle some claim the prosecutor is asserting against him, or will surrender some property right which he holds, and intending to then abandon the criminal charge, it may well be that the prosecutor would be liable to such an action. This declaration charges that certain of the defendants here were- defendants in civil and criminal suits Keithley had brought against them for libel, and that these disbarment proceedings were instituted to defeat said suits, and to punish Keithley for daring to bring them, and with the expectation that Keithley would pay the defendants to drop the disbarment proceedings. These are the conclusions of the pleader. No fact is stated tending to show that the defendants demanded or sought or expected to be paid to abandon the disbarment proceedings. It is not alleged that these civil and criminal libel suits brought by Keithley were defeated by his disbarment. For all that appears in the declaration, they may have been tried and resulted in judgments favorable to Keithley. The fact of those pending suits could hardly fail to have been submitted to the Supreme Court by Keithley. Similar allegations were made by the respondent in a disbarment proceeding, in People v. Payson, 210 Ill. 82, and 215 Ill. 476, 487, and the Supreme Court said it was of little consequence what motive prompted the bringing of the charges, if they were true. Probably in every case where citizens undertake the disagreeable duty of procuring the disbarment of an attorney, his prior conduct has produced indignation in honorable members of the bar and public-spirited citizens. They believe that in seeking his disbarment they are actuated by righteous indignation and just resentment at wrong-doing by a member of an honorable profession, while the respondent attributes their action to malice and envy or other improper motives. But, further, the weight of authority is against a right of action for the unfounded and malicious and unsuccessful prosecution of a civil suit where there is no arrest of the person or seizure of property. Smith v. Michigan Buggy Co., 175 Ill. 619; Liquid Carbonic Acid Mfg. Co. v. Convert, 186 Ill. 334; Bonney v. King, 201 Ill. 50. Much less can there he a right of action, where such a prosecution has been successful.

The effect of the suit, if this declaration is sustained, will be to submit to a jury of the Circuit Court the question whether the Supreme Court was warranted in disbarring Keithley. It is an attempt to obtain a new trial. It is, in effect, an appeal from the judgment of the Supreme Court to a jury, a reversal of the established procedure of this state. It is a reversal of the rules of law in another respect. Hitherto it is the acquitted defendant who may sue his prosecutors for damages for malicious prosecution. Here the convicted defendant sues those who have procured a conviction which still stands. If this suit can be maintained then every convicted criminal can bring an action against the witnesses who testified against him, the attorneys who appeared against bim, and Ms victims who have aided the prosecution. So, too, a party defeated in a civil suit could sue the successful party for using money, spending time, and finding witnesses to testify against him, and the declaration could be made good by asserting that the successful party had bad motives in his heart. This declaration abounds in bitter words assailing the motives of those who aided in procuring the disbarment of Keithley. /

We regard it as against public policy to permit those who have successfully prosecuted an unworthy attorney to disbarment to be afterwards harassed by such a suit. If such a suit could be maintained, few would have the courage to aid in ridding the legal profession of unworthy members.

We hold that the declaration does not state a cause of action.

The judgment is therefore affirmed.

Affirmed.


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    Frank O. Reed, Appellee, v. Antoine Engel, Appellant.
    Gen. No. 4,978.
    1. Jurisdiction-when question of, cannot he first raised on appeal. The question that the controversy involves a partnership accounting and therefore is a matter of equitable cognizance, cannot be first raised on appeal.
    2. Partnership--what essential to creation of relation of. As between the parties, a partnership is never created by implication or operation of law, apart from an express or implied intention and agreement to enter into that relation.
    3. Accord and satisfaction-what does not constitute. An accord and satisfaction is not established by showing the acceptance of a check delivered with the accompanying statement that it was in full, where it appears that the acceptance of the check by the payee was procured by untrue statements by the maker concerning matters solely within his knowledge.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    James F. McCormick and Butters, Armstrong & Ferguson, for appellant.
    Henry M. Kelly, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

This is a suit by appellee against appellant to recover one-half of the profits upon certain sales of real estate. Appellee had a verdict and a judgment for $2,000 from which defendant below appeals.

Appellant lived in Whiteside county, and was an agent for the sale of lands in that vicinity. Appellee lived in La Salle county and was widely acquainted in that county. Appellee’s proof tended to show that appellant engaged him to interest La 'Salle county men in the purchase of lands in Whiteside county and elsewhere and to bring or send prospective buyers to appellant, and that appellant was- to do all the work thereafter, and was to give appellee one-half of the profits arising from each sale made to parties sent or brought to appellant by appellee. Appellant’s proof tended to show that he agreed to pay appellee $1 per acre for all sales so made. Each side had some corroborating testimony. We do not feel authorized to disturb the decision of the jury in favor of appellee on that subject.

Appellant argues that appellee’s proofs establish a case of a partnership between appellant and appellee and that the relief here sought cannot be had in a court of law. It was necessary to raise this defense in the trial court so as to enable appellee either to take steps to meet the contention or to dismiss his suit and begin in equity. Fish v. Lapsley, 128 Ill. App. 611. Our attention is not called to anything showing that this q-qestion was raised in the court below till appellant presented instructions to the court which the court refused. There is nothing to show that appellee knew that such instructions had been presented till after the verdict. We conclude that the point was made too late. We are also of opinion that there was no evidence from which the jury could have found that a partnership existed between these parties. While a different rule prevails when a creditor is seeking to hold defendants as partners because of their acts, yet, as between the parties, a partnership is never created by implication or operation of law, apart from an express or implied intention and agreement to enter into that relation. Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67. We are therefore of opinion that the court was warranted in refusing the instructions on the subject of partnership both for want of proof upon which to base such an instruction, and also because the instructions offered by appellant on that subject did not take into account the intention of the parties.

On March 30, 1906, a few days before this suit was begun, appellant sent appellee a check for $423, and a letter therewith telling him that this was a settlement of the balance due him on account of land sales. Appellee received and cashed the check, knowing that appellant claimed it as in full settlement. Appellant argued that these facts constitute a complete defense. Before appellee cashed the check, he went to appellant and had a conversation with him in which, according to appellee’s testimony, appellee indicated that he supposed that there was more coming to him and appellant told him that this was a little more than one-half of the profit on these sales. Appellee then said 16all right,” and cashed the check. It is not claimed by appellant that this, added to previous payments, amounted to one-half of the profits. Appellant contends that he was not liable to pay appellee one-half the profits, but only $1 per acre. If the jury believed that appellant told appellee before he consented to accept the check that this, with previous payments, was a little more than one-half the profits, then they believed that appellant deceived appellee and that appellee accepted the check because he was deceived. The amount of appellee’s one-half of the profits depended upon three things: First, at what price were the lands listed with appellant? What was the price which the owner required and received? Second, at what price were the lands sold? And third, what necessary expenses did appellant incur in making the sales ? Appellee did not know at what price the lands were listed with appellant, nor at what price they were sold, nor what expenses appellant incurred. Appellant was the only one possessed of these details, and appellee had no means of learning them except through appellant. In fact, one-half the profits was very much more than the total sum appellant paid appellee. If we exclude from the computation two sales about which there is a debate, the proofs would seem to show that there was still due appellee for his one-half of the profits between $2,300 and $2,400. Appellee, according to his testimony, accepted the check in reliance upon the statement made to him by appellant, which was untrue. If appellant had then said to appellee, “that check covers $1 per acre for you and that is all I claim I agreed to give you,” and appellee had then accepted the check, a different question would be presented. But according to the testimony of appellee (upon which appellant relied to establish the accord and satisfaction), appellant told appellee that this was one-half of the profits. This statement was not true. We conclude that under these circumstances there was not an accord and satisfaction. In the oral argument counsel for appellant have told us that if we find the judgment correct in principle, they do not expect us to search the evidence to see whether the amount of the verdict is precisely correct. We have, however, gone far enough to see that it appears to he less than was due appellee.

We are of opinion that appellee was not required to return the check before beginning this suit, but that it is sufficient that appellant had credit for that sum paid; and that has been allowed him. Farmers’ and Mechanics’ Life Assn. v. Caine, 224 Ill. 599, 606.

The instructions on the subject of accord and satisfaction omitted all reference to the evidence tending to show that the settlement was obtained by a misstatement of facts known only to appellant. They were therefore properly refused.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


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    Sophia Rastetter, Administratrix, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 4,985.
    1. Total-province of jury. It is the province of the jury to pass upon conflicting testimony and to determine what facts are established by the greater weight of the evidence.
    2. Obdinaby cabe-what required, of child. A child is only bound to the exercise of such care as would reasonably be expected of a person of his age, capacity, experience, intelligence and ability to understand and comprehend danger and to care for himself.
    3. Negligence-when company guilty of, at street crossing. Held, from the facts of this case, that the verdict of the jury was justified, it appearing that a child was killed at a street crossing and the evidence tended to show the running of the car at an excessive rate of speed, without a headlight and without the ringing of a gong.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobtiiington, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
   Mr. Justice Dibell

delivered the opinion of the court.

At about eight o’clock p. m. of December 24, 1906, William Bastetter, fifteen years of age, was struck by a street car operated by appellant at the intersection of two well travelled streets in the city of Peoria, and was dragged under its front wheels, and received such injuries therefrom that he died within two hours. He left next of kin, for whose benefit the administratrix of his estate brought this suit to recover for the loss. The declaration charged in different counts, that the deceased was exercising due care for his personal safety; that there was then in force in said city an ordinance requiring the conductors and owners of street cars operated in the streets of the city to keep a vigilant watch for persons on the track, and on the first appearance of danger to such persons to stop the car in the shortest time and space possible; that at said time in question appellant failed to ring a bell or sound a whistle or otherwise to notify deceased that a car was being propelled at a high and dangerous rate of speed; that said car was obscured from view by another car going in the opposite direction on an adjoining track; that there was a want .of light to enable deceased to see the car at any considerable distance away; that the driver of the car failed to keep vigilant watch, as required by the ordinance, and that said car did not have a suitable and proper fender; that the car was operated at a high and dangerous rate of speed by careless and negligent servants of appellant, incompetent to operate said car; and that by reason of these things, deceased was struck and killed. Upon a jury trial appellee had a verdict and a judgment, from which defendant below prosecutes this appeal. While numerous errors are assigned, the only points made here are that the court erred in not giving an instruction to find appellant not guilty at the close of all the evidence, and in not granting a new trial for lack of evidence to support the verdict.

Appellee’s proof was to the effect that this street crossing was in a busy but not crowded part of the city; that deceased approached the street car track and waited to let a car pass north and up hill on the track nearest him, and then immediately started across the street after that car had passed; that he was immediately struck by a Lincoln avenue car going in the opposite direction; that said car was ten minutes behind time, and that it was going six or eight miles per hour; that it had no headlight and no gong was sounded; that about forty-five feet or so behind it on the same track was a Second street car on time and burning a headlight; and that the Lincoln avenue car struck the deceased and he rolled under its front wheel and was crushed and carried along until the car could be stopped. The evidence for the appellant was to the effect that the car was going about three miles per hour; that the motorneer was then stopping the car for the purpose of taking on passengers at that side of the street crossing; that the headlight was burning and the gong was sounded; that the motorneer was looking ahead and did not see deceased till just before he was struck. The only witness who saw the whole occurrence testified for appellee that there was no headlight. The men in charge of the car testified that there was. It is earnestly insisted that the proof does not show that the boy was exercising due care, and that the clear preponderance of the evidence is that the headlight was burning, the gong sounding, the speed of the car slow, and that all proper precautions were taken.

It was held in Chicago City Railway Company v. Robinson, 127 Ill. 9, that the fact that a person steps upon the track of a street railroad at a street crossing in a city without first stopping and looking to see whether a car is approaching is not negligence and a want of ordinary care as a matter of law, without regard to surrounding circumstances; and that to run a street car in one direction at rapid speed without signal or warning over a sidewalk crossing, where the view of it is obstructed by a car bound in the opposite direction and discharging passengers at such crossing, is conduct tending to prove negligence, even if the speed of the car is within the limits established by ordinance. It was held in Chicago City Railway Co. v. Tuohy, 196 Ill. 410, that those in control of á street car are required to exercise a greater degree of care or watchfulness at street intersections than at other places along the route; that the increase of danger to the public at such crossings demands a corresponding increase of vigilance and energy on the part of the men in charge of the car, who ought to notice whether the track is clear when they approach such crossings, and that this rule applied in that case where the child struck was twenty feet from the crossing. It was held that said child had as much right to be upon the street as the railway company, and that the street railway company had no right to run its cars at a rate of speed which would interfere with the customary use of the street by the public with safety. In Chicago City Railway Company v. Fennimore, 199 Ill. 9, the same rules of law were again announced, and a greater degree of watchfulness was required at street intersections than elsewhere. In Chicago & Joliet Railway Company v. Wanic, 230 Ill. 530, the same rule was applied to a locality, outside of a city, which was thickly settled and where there was little opportunity for one coming upon the track from adjoining houses to see an approaching: car.

These being the rules of law governing this case, it is obvious that at the close of all the evidence there was testimony which strongly tended to establish a case for plaintiff. On a motion to direct a verdict the trial judge is not at liberty to weigh the evidence. It would therefore have been error for the court to direct a verdict for appellant. It is the province of the jury to pass upon conflicting testimony, and to determine which facts are established by the greater weight of the evidence. This jury decided these conflicting questions in favor of appellee. If there was no headlight on the Lincoln avenue car and the view of the Lincoln avenue car by the deceased was obstructed by the car passing in the opposite direction, it may well be that he looked and did not see the Lincoln avenue car, but did see the headlight on the Second street car and correctly decided that he would have time to pass over the track before it would reach that point, and therefore believed himself secure in passing on. He was but a child, and only bound to exercise such care as would reasonably be expected of a child of his age, capacity, experience, intelligence, and ability to understand and comprehend danger and to care for himself. Star Brewing Co. v. Hauck, 222 Ill. 348; McGuire v. Guthmann Transfer Co., 234 Ill. 125. The jury were very fully instructed upon the subject that the deceased should have exercised due care. We cannot say that the jury should have found that due care by the deceased was not proven. There is unusual danger to foot passengers when cars pass in opposite directions at a street crossing, and in such a case the men in charge of the ear should have it under full control. The distance which this car passed (some twenty-five or thirty feet), after the motorneer saw the boy and knew the car had struck him, coupled with his claim that he was already trying to stop his car, and also with the fact that the car was ten minutes behind time, had a tendency to show that the car was going at a rate of speed much in excess of three miles per hour, and might by the jury be fairly found to be a negligent operation of the car, even if the headlight was burning and the gong sounding. If the headlight was not burning or the gong was not sounded, then a clear case of negligence is established. While it may be that there were more witnesses favoring the contentions of the appellant than of the appellee, yet the jury and the trial judge saw the witnesses and heard them cross-examined, and after they have both determined the issues in favor of appellee we do not find the proof in such a condition that we would be warranted in disturbing their conclusions.

The judgment is therefore affirmed.

Affirmed.


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    The People, ex rel. Casper G. Hanawalt, Plaintiff in Error, v. May Small et al., Defendants in Error.
    Gen. No. 4,992.
    1. Custody of child—test of determining. The paramount consideration in determining the question as to whom shall receive the custody of a child, is the best interest of that child.
    2. Appeals and ebbobs—what not considered on review. Statements of changed conditions since the making up of the record, being without the record, cannot be considered on review.
    Petition for habeas corpus. Error to the Circuit Court of Grundy county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    J. W. Rausch, for plaintiff in error.
    C. F. Hanson, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. May Small and her husband, D. S. Small, live in the village of Mazon in Grundy county and have for many years. On November 30, 1893, their daughter, Myrtle M. Small, married Casper G. Hanawalt, the relator, then a teacher in Mazon. Afterwards relator studied medicine, and the married couple then settled in Lisbon, Kendall county, where he practiced medicine. A child, Maude M. Hanawalt, was born September 6,1895, as the issue of that marriage. On .January 8, 1900, Mrs. Hanawalt left her husband, and with her child returned to the home of her parents, and almost immediately began a suit against her husband for divorce on the charge of extreme and repeated cruelty. The suit was contested and tried by a jury, and there was a verdict and a decree granting the divorce, and allowing Mrs. Hanawalt $15 per month alimony, and awarding her the custody of the child for ten months in the year, and allowing relator to have the child during two specified months while he lived at Lisbon or within twenty-five miles of Mazon. Afterwards Mrs. Hanawalt applied to the court to give her the sole control of the child, and relator petitioned the court to give him the child. There was a hearing, and the sole custody of the child was given to Mrs. Hanawalt, with permission to relator to visit the child two days each month. There were ■ other controversies before the court in that divorce case in reference to alimony, relator being largely in arrears and professing to be unable to pay the alimony. In these matters relator was defeated. Mrs. Hanawalt continued to live at the home of her parents, defendants in error, till her death. Except for the alimony paid by relator, she supported herself and child by work in various clerical positions. She died July 2, 1907, leaving a last will, which was duly probated, by which she gave her property to her mother, May Small, and appointed her mother testamentary guardian of the child, Maude M. Hanawalt. Soon after her death, relator, who had removed to Chicago and was practicing medicine there, came to Mazon and, while professing to be willing to leave the child with its grandparents for the present, declared himself the sole guardian of the child and demanded control thereof. This was refused by the grandparents. He then filed a petition in the Circuit Court for a writ of habeas corpus to obtain possession of his daughter. The petition was answered, and there was a hearing, and the court returned the child to the custody of Mrs. May Small, the grandmother and testamentary guardian. The relator has sued out this writ of error to review that judgment.

If Wilkinson v. Deming, 80 Ill. 342, is still the law of this state, then the petition was properly denied. It is contended that later statutes have in effect abrogated that decision. We therefore turn to a consideration of the facts. The best interest of the child is the paramount consideration in a case of this kind. We have carefully studied this record with that in view. We are of opinion that the effort to show that relator was not a person of proper moral character to have the custody of his daughter, because of his life either at Mazon or Lisbon, is not supported by competent evidence sufficient to establish such a state of facts. While relator resisted the payment of alimony on the ground of his inability to pay it, yet he has testified to the possession of sufficient property now to enable him to care for the child, and there was no testimony to the contrary. In these respects relator’s showing is sufficient.

At the time of the hearing relator lived in a flat at 1421 North Clark street, Chicago. The building came to the front of the lot leaving no yard for a playground. He had as his housekeeper a young widow, with one child, a boy. He had his office in one of the six rooms. The widow practiced hairdressing and facial massage for ladies, and occupied for that business another room. There are six saloons within one block of the house and one beer garden. The widow kept a boarding house for the relator before they removed to the present situation, and she is under contract to keep house for him' until November, 1908. She testified that her practice in these massage parlors was entirely with ladies and entirely respectable, and there is no contrary proof, nor any proof that the locality is not respectable, except the large number of saloons in the vicinity and the fact that they are frequented by women as well as by men. Belator’s counsel states outside the record that since the judgment in the court below relator has made arrangements to live in another part of the city, but it is manifest that we cannot consider these statements.

Mazon is represented in the proof as an entirely respectable village in an agricultural community. Mr. and Mrs. Small are members of the Congregational Church, and are evidently bestowing all proper care upon the child. She is a steady attendant at school there. Maude will he thirteen years old on September 6, 1908. She has no recollection of having lived in any other place than Mazon nor with any one except her mother and grandparents. She is apparently receiving proper education, and there is a high school in the village. She wishes to remain with her grandparents. Her father never furnished any money to her mother after the separation except to pay the alimony, and had to be forced by the process of the law to pay that. He has given his daughter $7 since the mother’s death.- The grandparents have not sought to influence her against her father, and are willing that her father should visit her and should aid in directing her education. They have a comfortable property, and the grandfather is in receipt of a steady income of over $1,200 per year, which is of more value in Mazon than the $2,000 or $3,000 per year which the father makes out of his profession in Chicago. Maude is the only heir at law of Mr. and Mrs. Small. After studying the record carefully we conclude that the home of the grandparents in Mazon surrounded by these religious and educational opportunities is a better place for this young girl to live in than massage parlors on North Clark street, Chicago, in the vicinity of numerous saloons and a beer garden, in a house presided over by a hired housekeeper, and the court below did not err in leaving the custody of the child with its grandmother as the mother appointed. If the hearsay testified to by the witnesses called by defendants in error as to the moral character of relator has any real foundation, that would furnish an additional reason for supporting the judgment of the court below, but we have discarded this testimony as being of too doubtful a character. We have also assumed that the testimony introduced by relator shows that his home on North Clark street is not tainted by any immorality or impropriety. Nevertheless, excluding all the suggestions on this subject made by counsel for defendants in error, we are of opinion that those surroundings in Chicago are much less fit for the home of a young girl at Maude’s age than her home with her grandparents. We approve the decision of the trial court.

The judgment is therefore affirmed.

Affirmed.