text:
    William A. Garner, Appellee, v. East St. Louis Railway Company, Appellant.
    1. Carriers, § 352

       — when street car company is liable for injury to passenger due to baggage in aisle. The duty of caring for baggage primarily rests upon the passenger in a street car, and if a suit case in the aisle is a sufficient obstruction to render the aisle unsafe or does not furnish ample room for the ingress or egress of passengers, and the carrier knows, or in the exercise of reasonable care might have known, of the obstruction and failed to remove it, as the result of which another passenger stumbles over it, there is negligence on the part of the carrier.
    2. Carriers, § 476* — when evidence is insufficient to show Knowledge by agents of carrier of existence of suit case in aisle. In an action by a passenger against a street car company to recover damages for personal injuries, due to a fall over a suit case, which was placed in the aisle of the car by another passenger, while he was on his way to alight from the car, evidence held insufficient to show that the conductor or motorman had notice of the presence of the suit case in the aisle, or that it had been in the aisle a sufficient length of time that they should have taken notice of it.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 16, 1918.
    Barthel, Farmer & Klingel, for appellant.
    William H. Launtz and Edgar P. Holly, for appellee.

      See Illinois Notes Digest, Vols. XI tg XV, and Cumulative Quarterly, same topic and section pupaber.

   Mr. Justice McBride

delivered the opinion of the court.

Appellee obtained a judgment against the appellant for $850, to reverse which this appeal is prosecuted.

It is disclosed by the record in this case that about 4 o’clock in the afternoon of December 16, 1916, the appellee took passage upon one of appellant’s cars at Exchange and 13th streets and got off at Broadway and Collinsville avenue, but just before reaching Broadway the appellee attempted to pass out of the front door of the car but was prevented from so doing by the motorman who directed him that he would have to pass out at the rear end of the car, and as he was passing from the front to the rear end of the car he fell over a suit case and was injured. There were quite a number of passengers aboard the car, some of them sitting in the seats and others of them standing in the aisle. It appears that those who were standing in the aisle were moving back towards the rear door and the appellee was in the rear of them all at the time that he fell over the suit case. It is further disclosed by the evidence that a short time before the appellee fell, a man and woman came into the car and were seated upon the seat just"behind the appellee; that the man carried a suit ease; that he seated the woman next to the window and was in the act of adjusting his suit case as the appellee returned from the front end of the car, and the suit case extended out into the aisle. The owner of the suit case had not become well fixed in his seat and was at the time attempting to arrange and place the suit case. It further appears from the testimony that on Saturday night of December 9,1916, the appellee complained to two of his associates, Otto Turley and Daniel Underwood, that a few nights before that he had fallen over something in the yards while they were on duty and hurt his side and knee. The witnesses claim that this conversation occurred at a time when appellee was soliciting them to take a different route while they were in the yards to avoid some loose timber and coal that he claimed to have fallen over.

The declaration in this case consisted of two counts. The first count charges that the defendant permitted the passageway through said car, and which the plaintiff was compelled to use in leaving said car, to become and be obstructed and rendered dangerous by the baggage, valise and suit case of passengers placed therein, and rendered still more dangerous by permitting and causing the means of detecting the said baggage, valise and suit case to be made obscure by permitting passengers to crowd and stand in said passageway and about said baggage, valise and suit case.

The second count charges that the defendant negligently permitted certain baggage, valise and suit case to remain in said aisle and obstruct the same, well knowing, or by the exercise of ordinary care should have known, that said baggage, valise and suit case constituted a dangerous obstruction liable to injure passengers and the plaintiff in the rightful use of said aisle.

The appellant contends that the evidence in this case fails to show that it is guilty of any negligence or that it is in any manner liable for the injury sustained by appellee. Upon the other hand, the appellee insists that the conductor came back to the parties having the suit case to collect their fare just before the injury and that he ought to have seen the suit case in the aisle and to have had it removed; and also insists that under the law that when baggage or other obstructions are left in the aisle of a coach or a common carrier of passengers, so as to render the aisle unsafe, and one of its passengers receives injuries by reason of such obstructions, the carrier becomes liable. We have examined the authorities cited by counsel but do not think that the doctrine here invoked, that the mere presence of a suit case in the aisle rendering it unsafe, would create a liability against the appellant. That doctrine has reference more particularly to the operating of the car and the appliance of transportation, but in our judgment could not be invoked where a passenger by some act of his placed an obstruction in the aisle which caused the injury, unless the servants of appellant had notice that such obstruction was there, or had been there such a length of time that notice could be implied. In a case decided by our Supreme Court, where one of the questions involved was similar to the one here presented, the court said: “The duty of caring for such baggage rests primarily upon the passenger to whom it belongs. If the suit case or traveling bag in the aisle was a sufficient obstruction to render the aisle unsafe or did not furnish ample room for the ingress and egress of passengers, and the carrier knew or in the proper exercise of its duty might have known of the obstruction and failed and neglected to remove it, it would amount to negligence on the part of the carrier. Such conditions imposing the duty on the carrier must be proved by the party seeking to recover. (Burns v. Pennsylvania Railroad Co. [233 Pa. 304], 27 A. & E. Ann. Cas. 811; Kantner v. Philadelphia & R. Railroad Co. [236 Pa. 283], 84 Atl. 774; Lyons v. Boston Elevated Railroad Co. [204 Mass. 227, 2 N. C. C. A. 363], 90 N. E. 419.)” Heineke v. Chicago Rys. Co., 279 Ill. 213.

The appellee claims that he did not see the suit ease and knew nothing about its presence in the aisle until he stumbled against it, and the only person who saw the suit case in the aisle was John H. McCauley, who was in the employ of the Commercial Acid Company, and had charge of the policing of that plant, and he says that he sat on the seat on the opposite side of the car, a seat or so back from where the valise was, and that he saw the man with the valise, in company with the woman, take their seats, and that they took the seat at about the time appellee arose from his seat to go to the front end of the car, and describing it the witness says: “The lady entered and sat down next to the window; the gentleman followed her and "placed his suit case in the aisle until after he had sat down; then he reached down and got his suit case and drew it around in front of him just as the plaintiff started back, and he fell over the suit case. The man had hold of the suit case at the time the plaintiff fell over it. The man was trying to get it out of the aisle and place it somewhere in front of him. That is what I supposed he was trying to do.” He is the only one who from this testimony saw how the injury occurred and observed the suit case in the aisle. The conductor and motorman deny that they ever saw the suit case in the aisle and there is no evidence that they did, except the statement of the appellee that the conductor came to some one behind him, he did not know who, to collect the fare, and seems to assume that at that time the suit case was in the aisle but he did not know it, but the testimony of the witness McCauley wholly contradicts this.

The evidence in this record was not sufficient to warrant the jury in finding that the agents of appellant had notice of the presence of the suit case in the aisle, or that it had been in the aisle a sufficient length of time that they should have taken notice of it, but the evidence does show affirmatively that the suit case had been placed in the aisle immediately before appellee fell. Unless these conditions existed the appellant would not, in our judgment, be guilty of such negligence as to create a liability against it for the injury received by appellee.

We are of the opinion that the verdict of the jury was manifestly against the weight of the evidence, and that the judgment should not have been rendered thereon, and the judgment of the lower court is reversed and the cause remanded.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Helen C. Clarke, Appellant, v. Lewis A. Kemp, Appellee.
    1. Sheriffs and constables, § 53

       — what must' be shown by officer to justify levy and seizure of property claimed by third person. In order to justify a levy and seizure of property, claimed by a third person, by a sheriff, the officer must not only show an execution but also that the execution was issued on a valid judgment.
    2. Execution, § 47* — when invalid because not conforming to judgment. In order that an execution may be valid it must conform to and follow the judgment in all essential particulars, and it does not do so where the judgment is joint and the execution is against the property of only one defendant.
    3. Sheriffs and constables, § 83* — when instruction on necessity of demand for property seized as that of another before commencement of suit is erroneous. In an action against a sheriff by the claimant of property levied upon by the officer as property of the claimant’s father, to recover possession of such property, an instruction that where an officer levies an execution on property in possession of a defendant in execution, as the property of such defendant, then the officer’s possession is not wrongful, and, if another claims the goods, he should make a demand, and that if the jury believed from the evidence that the possession of the goods levied on was, at the time they were levied upon, in the defendant in the execution, then it was necessary for plaintiff to prove that a demand was made upon the officer for the property before the commencement of her suit, was erroneous where the evidence did not show that the property was in the possession of defendant in execution and it showed that such defendant in execution told the officer, at the time of the levy, that plaintiff claimed the property.
    4. Sheriffs and constables, § 72* — when no demand is necessary before institution of suit to recover property seized upon debt of another. There is no necessity of a demand by a claimant for property seized under an execution against it as the property of another, from the officer before commencement of a suit to recover possession of the property, where plaintiff told the officer at the time of the levy that she owned the property.
    Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 16, 1918.

      E. B. Green, Howard P. French and Theodore G. Risley, for appellant.
    P. J. Kolb and M. J. White, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that about October 1,1916, George S. Clarke, the father of appellant, purchased or traded for an automobile and on that day sold the automobile to his daughter, the appellant, for $500. The payment was made from money to the amount of $300 which appellant had accumulated in the bank and before that time had loaned to her father. The remaining $200 was paid by money, as appellant claims, that she borrowed from her mother that was the proceeds of the sale of some property owned by the mother. It further appears from the testimony that after the appellant purchased the car she had control of it and drove it herself and it was kept in the garage belonging to Wilkin & Miller of Mt. Carmel, and it was in this garage at the time it was levied upon by the appellee. It further appears from the evidence that on November 22, 1915, the Farmers National Bank of Allendale procured a judgment against Melchoir Leipold and George S. Clarke and that on March 7, 1917, an execution was issued by the circuit clerk of Wabash county, commanding the sheriff that of the goods and chattels, etc., of George S. Clarke you cause to be made the sum of $1,081.83, which the plaintiff lately recovered in a judgment against the defendant. It was by virtue of this execution that the appellee levied upon the automobile in question. It further appears from the evidence of appellant that at the time of the levy the father notified the appellee that the machine in question belonged to appellant. When the machine was levied upon the appellee took the key therefrom and placed the machine in the possession of Miller, one of the owners of the garage. On May 15, 1917, the appellant instituted this suit for the purpose of recovering possession of the property.

The declaration filed was in the usual form, to which the appellee filed three pleas, non cepit, non debit and a plea averring that the Farmers National Bank of Allendale before the time when the property was seized, etc., and on, to wit, March 29, 1917, caused an execution to be issued out of the county aforesaid against one George S. Clarke, directing that the sheriff cause to be made out of the goods and chattels of the said George S. Clarke the amount of money therein specified, and that said goods and chattels were taken and detained by virtue of said execution, and that the automobile in question was the property of the said George S. Clarke and not of the plaintiff. A trial was had which resulted in a verdict and judgment for the defendant, to reverse which this appeal is prosecuted.

Two principal errors have been assigned and argued by the appellant, by one of which the appellant claims that the execution admitted in evidence, over the objections of appellant, was invalid because it was not supported by any judgment against George S. Clarke. It appears from the record that the judgment upon which appellee claims the execution was issued was a judgment rendered in favor of the Farmers National Bank of Allendale and against Melchoir Leipold and George S. Clarke, jointly, and that the execution when issued was issued against George S. Clarke only. It was necessary, and seems to have been so recognized by counsel for appellee, that in order to justify a levy and seizure of property, upon property claimed by a third person, that in order to justify such a seizure the officer must not only show an execution but he must go further and show that such execution was issued upon a valid judgment. Johnson v. Holloway, 82 Ill. 334; Hartman v. Cochrane, 2 Ill. App. 594.

It is also contended by counsel for appellant that in order that an execution may be valid it must conform to and follow the judgment in all essential particulars, and that as this execution was issued against one only of two parties against whom the judgment was rendered that it became void. It is said by Freeman on Executions that an execution when issued must follow the judgment in all essential particulars: “In this part of the execution the same precision must be attained as is necessary in the entry of a judgment. It must show for and against whom the execution issues, the amount or amounts to be taken from the latter for the benefit of the former, and also show the date at which, and the court wherein, the judgment was rendered. No execution can be proper in form, unless, with reference to these particulars, it exactly pursues the judgment. * * * The execution must, on its face, appear to be against all the defendants, notwithstanding from death, bankruptcy or some other cause, no levy can be made on the property of some. Executions ought also to state the name of each defendant as it is set forth in the judgment.” Freeman on Executions, sec. 42. The Supreme Court of Illinois quotes the above authority approvingly and then adds: ‘ ‘ The execution must follow the judgment in every essential particular.” Hobson v. McCambridge, 130 Ill. 367. And this same doctrine seems to be recognized by Herman on Executions, sec. 55.

In the case of Brinton v. Gerry, 7 Ill. App. 238, the court says: “The judgment is joint against Alexander, Marks and Gerry, and the rule is that the execution must conform in all respects to the judgment. The execution must on its face appear to be against all the defendants, notwithstanding, from death, bankruptcy, or some other cause, no levy can be made on the property of some one or more of them.” And in support of this doctrine cites several authorities. Freeman, in his work on Executions, in support of the reason of this rule, says: “The reason why the description of the judgment is inserted in the writ is that the officer may know what he is to enforce, and, that the writ may by inspection be connected with the authority for its issuance.” Freeman on Executions, sec. 43.

It is said by counsel for appellee that any irregularity in the execution that existed was a matter of which the appellant had no concern. While this appears plausible yet the rule seems to be, as laid down by the authorities referred to, that before the property of third parties can be taken under an execution that it must be shown to be supported by a valid judgment, and that the execution must conform to the judgment; and the general rule is that where one seeks to take the property of another that before property can be subjected to seizure the process must at least be substantially in conformity with the laws of the land. The motive for issuing the execution against Clarke alone is not apparent from this record, but it may be that if the execution had conformed to the judgment and been issued against both defendants that the levy upon the property claimed by appellant would have been unnecessary.

It is also said that the replication filed by the appellant admitted the existence and validity of the judgment and the regularity of the execution. We do not so understand the pleadings in this case. The plea filed by the defendant did not set up any judgment at all but simply that an execution had been issued against Clarke, and when the execution was offered in evidence it was specifically objected to by counsel for appellant. It has been held by some courts that where all of the circumstances surrounding the issuance and levying of the execution shows that it was intended to have been issued upon the particular judgment, that such circumstance may be only an irregularity and would not necessarily render the execution void. It is, however, unnecessary, in the view we take of this case, to determine whether the execution in question is void or not as the court erred in instructing the jury with reference to the necessity of a demand before the appellant could institute her suit of replevin, and we regard this assignment error, as not only supported by the law but as being a very meritorious one under the evidence in this case.

The court gave to the jury at the request of the appellee the following instruction: ‘ ‘ The court instructs the jury that where an officer levies an execution on property in possession of a defendant in execution, as the property of such defendant, then the officer’s possession is not wrongful, and if another claims the goods, he should make a demand, and that if you believe from the evidence in this case that the possession of the goods levied on and in controversy in this case were at the time they were levied on by the officer in the possession of a defendant in the execution, then it was necessary for the plaintiff, in order to be entitled to a verdict finding in her favor, to prove that a demand was made upon the officer for the property before the commencement of her suit.” The evidence in this case did not show that George S. Clarke was in the possession of this property, but, according to the testimony of appellant and appellee, it was either in possession of the appellant or of Wilkin & Miller in their garage, and the giving of this instruction was misleading, as the jury would probably be led to believe that the court was of the opinion that the property was in the possession of George S. Clarke. The instruction was erroneous for another reason. It appears from the evidence of the appellant that at the time the levy was made that George S. Clarke told the officer that the property did not belong to him but belonged to his daughter, the appellant, and that notwithstanding this notice the officer proceeded to make the levy upon the property. It is true that the officer stated that Clarke was not present at the time the levy was made; then if this be true the property was not or could not have been in the possession of George S. Clarke. And, again, the reason of a demand is that the officer may be advised that some one else is claiming the property, but if he was advised before making the levy that some one else claims to own the property then this is all that is necessary under such circumstances for such party to do. The Supreme Court ,in the case of Greenberg v. Stevens, 212 Ill. 609, says: “He was distinctly advised that the property belonged to the appellee and was in her possession and warned not to seize it, and having taken possession of it with full notice of the appellee’s title, no demand, under all of the circumstances., was necessary.” This same doctrine is announced in the text of 14 Am. & Eng. Encyc. of Law (2nd Ed.) 508. This instruction should at least have been modified by advising the jury that such demand was not necessary if the appellee had notice of appellant’s title. We think this instruction should not have been given and that the jury may in all probability have been led to believe that before the appellant could institute this suit it was necessary to make a formal demand of the property.

We are of the opinion that such errors were committed in the trial of this case that renders another trial necessary, and the judgment of the lower court is reversed and the cause remanded.

jReversed and remanded.


author: Mr. Presiding Justice Holdom

text:
    J. L. Obermeyer, Plaintiff in Error, v. Wisconsin Dairy Farms Company, Defendant in Error.
    Gen. No. 23,487.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Action by J. L. Obermeyer, plaintiff, against Wisconsin Dairy Farms Company, a corporation, defendant, to recover a balance claimed to be due on an account for butter sent to defendant as broker to sell on commission. From a judgment of nil capiat for defendant, plaintiff brings error.
    For the decision on a former appeal, see 199 Ill. App. 568.
    Joseph M. Connery, for plaintiff in error.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

       — when case determined 6y evidence. In a case of the fourth class in the Municipal Court of Chicago, the case is what the evidence makes it.
    2. Principal and agent, § 1* — who is agent. One to whom butter is sent for sale at a certain price, less commission, in response to a solicitation by mail, is an agent of the seller.
    3. Principal and agent, § 55* — what is duty of agent as to accounting.. It is the duty of one to whom butter is sent for the purpose of sale on commission for the principal to promptly and honestly account to the principal for the proceeds of the butter sold.
    4. Principal and agent, § 72* — -when commission forfeited. An agent for the sale of butter on commission forfeits his claim to a commission by the making of false statements and the rendition of false accounts to the principal.
    Jonas O. Hoover, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Peter Billow, Appellee, v. Isaac Miller, Appellant.
    Gen. No. 23,589.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and judgment of nil capiat and for costs.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Action by Peter Billow, plaintiff, against Isaac Miller, defendant, on the promise to pay indebtedness for work done for one Jacob Zeman, under a written contract entered into between defendant and said Zeman. From a judgment for plaintiff for $336.80, defendant appeals.
    Abstract of the Decision.
    1. Frauds, Statute of, § 17

       — what is collateral promise. The promise to pay the indebtedness of a subcontractor under a written contract between the contractor and owner is not an original but a collateral one, and is obnoxious to the Statute of Frauds.
    2. Frauds, Statute of — when verdict should he directed for defendant. In an action on an agreement.to pay indebtedness of a subcontractor under a written contract between the contractor and owner, where it appears from the plaintiff’s proofs that the contract is of such a nature and consequently a collateral one within the Statute of Frauds, it is reversible error to deny a motion by defendant for a directed verdict in his favor.
    For an abstract of the decision on a former appeal, see 194 Ill. App. 524.
    Edward C. Berglund, for appellant.
    Max M. Grossman, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Annie Lee Medcalf, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 23,754.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Tokrison, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed May 13, 1918.

      Abstract of the Decision.
    1. Railroads, § 516

       — what duty owed to licensee walking along tracks. A railroad company owes no greater duty to a licensee walking along its tracks than not to wantonly or wilfully injure her and to use reasonable care to avoid injuring her after discovering her in peril.
    2. Railroads, § 516* — what is extent of duty arising from license to use tracks. A license to use the tracks of a railroad company imposes no obligation to take precautions for the licensee’s safety or to run trains in any respect different than they would be run if she were not there.
    Statement of the Case.
    Action by Annie Lee Medcalf, plaintiff, against Chicago & Western Indiana Railroad Company, Chesapeake & Ohio Railway Company and the Belt Railway Company of Chicago, defendants, to recover for personal injuries due to being struck by a train of the Chesapeake & Ohio Railway Company running on the tracks of defendant Chicago & Western Indiana Bail-road Company while she was walking upon the right of way to deliver a midnight lunch to the towerman of defendants. The Chesapeake & Ohio Bailway Company and the Belt Bailway Company of Chicago were dismissed out of the case at the trial. From a judgment against it for $15,000, defendant Chicago & Western Indiana Bailroad Company appeals.
    Worth E. Caylor, for appellant.
    Iles, O’Connor, Eberhardt & Kesler and Morton J. Stevenson, for appellee; Morton J. Stevenson and Edward C. Kesler, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Fred Allen Automobile Supply Company, Appellee, v. H. W. Johns-Manville Company, Appellant.
    Gen. No. 23,904.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sates, § 17

       — when not nudum pactum. A contract by which a seller of batteries agrees to furnish sufficient of the contract commodity to meet the requirements of the purchaser for a 12-month period, and under which the purchaser agrees to devote its best efforts in making sales, is not nudum pactum.

      Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 13, 1918.
    Rehearing denied May 27, 1918.
    Statement of the Case.
    Action by Fred Allen Automobile Supply Company, a corporation, plaintiff, against H. W. Johns-Manville Company, a corporation, defendant, for breach of a written contract for the sale to plaintiff of batteries. From a judgment for plaintiff for $1,054.83 and interest, defendant appeals.
    Plaintiff agreed to purchase from defendant within 12 months from date all plaintiff’s requirements of “Bed Seal batteries” at prices and upon terms in the contract specified. The contract contained this provision, that plaintiff will “devote its best efforts in promoting the sale of the same,” meaning the Bed Seal batteries in the contract described. The contract provided for certain discounts from scheduled prices above certain quantities delivered and paid for within the contract time for deliveries and payment.
    Gregory, Burges & McNab, for appellant.
    Lloyd D. Heth, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Sales, § 15 — when not void for want of mutuality. A contract by which a seller of batteries agrees to furnish sufficient of the contract commodity to meet the requirements of the purchaser for a 12-month period, and the purchaser agrees to devote its best efforts in promoting the sale of the batteries, is not void for want of mutuality.

3. Contracts, § 181* — how intention of parties to unambiguous contract determined. Where a contract is not ambiguous, the intention of the parties cannot be determined by evidence aliunde, but by the language employed in the contract itself.

4. Contracts, § 177* — what is legal inquiry in construing. In construing a written contract the legal inquiry is as to what was the intention of the parties.

5. Sales, § 64*- — how contract for sale of batteries and for promotion of resale construed. A contract for the sale of batteries, under which the seller agrees to furnish a sufficient number to meet the purchaser’s requirements for a year and the purchaser agrees to buy them and devote its best efforts in promoting the sale of the batteries, must be construed as providing that the seller was to furnish the buyer with batteries as described in it to meet all the buyer’s requirements for a year, as those requirements might materialize during that time with the buyer devoting its best efforts to promote the sale of the batteries.

6. Sales, § 19* — validity of verbal order for goods. A verbal order for goods is just as binding as a written one, when proven.

7. Evidence, § 221* — what is not hearsay. In an action by a buyer against a seller to recover damages for breach of contract in failing to supply plaintiff with the requisite number of batteries to fill its orders, plaintiff’s evidence as to such orders was not hearsay.

8. Sales, § 376* — when discounts are elements of damages for breach of contract. In an action by a buyer against a seller to recover damages for breach of contract in failing to supply plaintiff with the requisite number of batteries to fill its orders, the discounts allowed by the contract were properly proven as elements of damages.

9. Contracts, § 13* — when claim of want of mutuality is untenable. Where a party partly performs a contract he cannot afterwards, at his own election, avoid its further performance upon the alleged ground of want of mutuality.


author: Mr. Justice Dever

text:
    Anton J. Cermak for use of James Moloney, Appellant, v. Cable Piano Company et al., Appellees.
    Gen. No. 23,577.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Chattel mortgages, § 151

       — when right of possession under second mortgage may not be questioned. Where a second chattel mortgagee takes possession under a mortgage valid upon its face, the right to possession of the property cannot he questioned by one claiming under the prior mortgage, invalid on its face.
    2. Chatter, mortgages — when lack of formality in execution is immaterial. Where a second chattel mortgagee is in possession of the property upon default and the legal title has vested in him, it is immaterial whether the chattel mortgage under which he got possession was executed with all the formalities of law.
    3. Replevin, § 203* — when burden of proof is not on plaintiff.
      In an action by a second chattel mortgagee on the replevin bond of the first mortgagee, given to obtain possession of the property, which was in possession of the second mortgagee after default, it was not incumbent upon plaintiff, in the first instance, to show that in the execution of the. mortgage the corporation mortgagor had complied with all the requirements of the law, even though the execution of the instrument had not been directly authorized by members of the corporation.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed May 13, 1918.
    Rehearing denied May 27, 1918.
    Statement of the Case.
    Action by Anton J. Cermak, for use of James Moloney, plaintiff, against Cable Piano Company, a corporation, and others, defendants, upon a replevin bond. From a judgment for defendants, plaintiff appeals.
    Fred A. Rathje, for appellant.
    Walter S. Sommers and Lawrence A. Cohen, for appellees; Charles T. Farson and Guyon T. Fisher, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

4. Replevin, § 206* — what is effect of affidavit as evidence. The statements in an affidavit filed in a replevin suit as to the value of the property are to be regarded as at least prima facie proof of the value of the property.

5. Replevin, § 192* — when judgment not excessive in action on bond. In an action on a replevin bond, evidence held sufficient to warrant a judgment for plaintiff of $500, attorney’s fees, interest and costs.

6. Replevin, § 206* — what is effect of affidavit as to value of property. A witness signing an affidavit filed in a replevin suit as to the value of the property may not by testimony qualify or modify his statements made therein.

7. Replevin, § 190* — when interest allowed in action on hond. In an action on a replevin bond, interest should be allowed from the time of the taking of the property under the replevin writ to the date of judgment.


text:
    New Illinois Athletic Club of Chicago, Appellee, v. Charles Henry Genslinger, Appellant.
    Gen. No. 23,618.
    1. Corporations, § 27

       — when cancellation of contract for compensation of promoter not shown. Evidence held insufficient to show the cancellation by mutual agreement of a contract between an athletic club and a promoter for the formation of the corporation and for compensation for services by payment of a percentage of 6 per cent, on each membership up to 8,000 members, except on 1,000 members, the memberships for which number should be issued to him when 5,000 members weire procured, and providing that the contract should be completed when the latter number of members was secured.
    2. Corporations, § 27* — what is not evidence of waiver of rights

      of promoter under contract. The fact that a promoter of an athletic club, who has agreed to secure a certain membership for the club in consideration of a certain commission and a bonus of a certain number of memberships when the number of memberships received reaches a certain figure, resigns as secretary is no evidence of his intention to waive his rights under the contract.
    3. Corporations, § 27

       — when contract with promoter as to compensation is not unreasonable. A contract between the promoter of an athletic club and the club for the sale of memberships on a commission basis, resulting in charges of over $46,000 and entitling him to a bonus of 1,000 memberships, after procurement of 5,000 members, was not unreasonable where over 6,000 members were secured, and his services were rendered in good faith and were efficient, resulting to the profit of the club of several hundred thousand dollars because of the procurement of a valuable lease.
    4. Corporations, § 262* — when contract not void. Evidence held to show that the majority of the board of directors of a corporation were not personally interested in a contract with a promoter so as not to render it void.
    5. Corporations, § 27* — when contract with promoter enforceable. A contract made with a promoter of a corporation before its organization is not enforceable against the corporation unless such contract is ratified by the corporation after its organization.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed May 13, 1918.
    Rehearing denied May 27, 1918.
    Thurman, Hume & Kennedy, for appellant; Holt, Cutting & Sidley, of counsel.
    Harry P. Simonton, Childs & Childs and Richards, Voigt & Darby, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

The complainant, New Illinois Athletic Club of Chicago, filed a bill of complaint in the Circuit Court of Cook county against the defendant, Charles Henry Genslinger, to restrain him from prosecuting a suit brought by him in the Municipal Court of Chicago against complainant, in which suit the defendant claimed that complainant was indebted to him in the sum of $200,000. The defendant filed an answer to the bill of complaint in which he assented to an accounting as prayed for in the bill, and he also filed a cross-bill in which he prayed for an accounting against the complainant and for a money decree in his favor and also for the delivery to him of 1,000 memberships in the complainant corporation.

From the evidence heard on the trial it appears that the defendant for some years prior to the year 1904 had been engaged in promoting the organization of certain clubs and associations and that he had become, by reason of his training, an expert in this kind of work. For some months prior to December, 1904, the defendant had been engaged, with certain other persons, in an effort to organize an athletic club in the City of Chicago. Much labor and service were rendered by the defendant prior to the above date in effort to procure members for the proposed organization and in procuring a site and preparing for the building of a clubhouse which was to become the home of the new club. In pursuance of an oral understanding between defendant, William Hale Thompson and other persons interested in organizing the club, the club was organized, and on December 3, 1904, at the first meeting held by its board of directors, the resolution following was adopted:

“Whereas, the details of organization, and work in obtaining members, and in otherwise carrying out the formation of the New Illinois Athletic Club of Chicago have been done largely by Charles H. Genslinger; and
“Whereas, prior to the rendering of such services by said Genslinger, certain agreements were entered into between the said Genslinger and the parties organizing and forming the said New Illinois Athletic Club of Chicago for compensation for the services of said Genslinger, in connection with such organization and formation; and
“Whereas, the said Genslinger is performing all such services as were expected of him, and will have fully performed and carried out his contract when five thousand members shall have been secured;
“Be it resolved: That the New Illinois Athletic Club of Chicago recognize and approve, and it does recognize and approve and ratify the agreements hereinbefore entered into on its behalf by those who originated and organized it with said Genslinger.
“Be it further resolved, that one thousand fully paid up and transferable certificates of membership be issued to the said Genslinger, and the proper officers of the club are hereby authorized to execute and issue such certificates when the membership of said club reaches five thousand.
“Be it further resolved, that said certificates issued to said Genslinger shall be transferable only to elected members of the club, and shall upon the first transfer from Genslinger be exempt from payment of transfer fee.
“Be it further resolved, that a commission of six per cent on each and every membership issued by said New Illinois Athletic Club other than the said one thousand certificates hereinbefore mentioned shall be paid to said Genslinger, up to eight thousand members.”

The complainant charged in the original bill that the paragraph in the above resolution referring to the issuance to defendant, under certain circumstances, of 1,000 certificates of membership, was not included in the resolution actually adopted by complainant, and, further, that the resolution only expressed a part of its contract with defendant; that in return for the compensation to be paid the defendant under the resolution he was required “to organize a new Illinois Athletic Club with a large frontage on Michigan avenue with a large clubhouse suitable for the accommodation of 10,000, completely furnished and equipped without bonded or other indebtedness. ’ ’ The defendant denied that he at any time made any such agreement as is insisted upon by complainant, and he asserts that the resolution above set forth constitutes his contract with complainant..

The evidence shows that defendant “and his associates ” .proceeded to build a clubhouse upon Michigan avenue upon ground, a lease for which was obtained by defendant from one Caryl Young." William Hale Thompson, the then president of the club, testified that on July 28,1905, he said to defendant that defendant’s contract for services was based upon a much larger club plan; that defendant had been unable to carry out his contract with complainant; that the part of the contract which provided for the delivery of 1,000 memberships to defendant should be canceled; that defendant finally agreed to this suggestion and that later the defendant delivered the said resolution adopted by the club to the witness with the following indorsement thereon in red ink:

“Cancelled by mutual consent,
C. H. Genslinger,
July 28, 1905.”

It does not appear from the evidence that any objection was made by anybody concerned as to the manner in which Genslinger had performed his contract, even though large financial obligations had been incurred under the lease and building contracts, apparently with the full knowledge of Thompson and Genslinger’s other associates, until the date of the alleged conversation between Thompson and defendant. Genslinger denied that he had agreed orally or otherwise to cancel his agreement with complainant and he testified that his signature to the cancellation agreement was a forgery.

Up to the time of his resignation in 1906 as secretary of the club, the defendant had received $21,600 as commissions upon moneys received by the club in the sale of membership certificates. A further sum of $1,000 Was later paid to him by complainant, and it is insisted that this latter sum was in full settlement of all defendant’s claims against the club. Defendant insists that this payment was merely on account.

The cause was referred to a master, and in confirmation of his report to the court a decree was entered granting a part of the relief prayed by the bill of corn-plaint and dismissing the cross-bill for want of equity. The decree finds that at no time did the membership of the club reach 5,000 or exceed 3,600 members; that at the time Genslinger resigned as secretary he had not accomplished the things he had agreed to do under his contract, and that defendant and complainant were precluded by the settlement referred to from recovering further sums from each other. The defendant and cross-complainant brings the case here by appeal for review.

It is a strange circumstance that the original bill of complaint sets out and relies upon a resolution adopted by the board of directors of the club, which is as follows :

“Whereas the details of organization and work obtaining members and otherwise carrying out the formation of the New Illinois Athletic Club have been done largely by Charles Henry Genslinger,
“Be it resolved on motion duly made and seconded and carried that the New Illinois Athletic Club of Chicago pay said Genslinger as a commission for his work in organizing and obtaining members and carrying out the formation of this club a commission of six per cent on each and every membership issued by said New Hlinois Athletic Club up to 8,000 members.”

On the trial of the cause, however, Thompson, complainant’s president, while on the witness stand, produced the resolution as contended for by the defendant and no proof was offered of the adoption of a resolution as alleged in the bill. Later in his testimony Thompson produced a copy of the original resolution as it appeared in the minute book with the cancellation agreement as above indicated indorsed thereon. It is suggested, although not proven, that the resolution set out in the bill was originally adopted by the board of directors and inserted in the minute book and that it was extracted therefrom by the defendant. But, aside from the fact that defendant’s possession of the minute book for a time gave him an opportunity to commit this wrong, there is no evidence that he in fact did, as suggested in the brief, tear this document from the minute book, and there is ample evidence that the minute book was accessible to a number of persons.

The bill herein was filed in the year 1913, about 7 years after defendant resigned,his office as secretary of the club, during which time the minute book in question was in the possession of his successor in office and was open to the inspection of the officers and members of the club. Notwithstanding the charge in the bill, we find it, in effect, conceded on the trial that the resolution originally adopted by the club was as insisted upon by the defendant, and not as contended for by complainant in its original bill. There is inherent evidence of the truth of Genslinger’s testimony that the original resolution was as claimed by him. So far as the evidence in the record shows, no suggestion had been made by anybody in interest at any time that there had been a cancellation of the contract between defendant and complainant at any time until the production of the cancellation agreement by Thompson when on the witness stand. As the case then stood upon the pleadings, the complainant was required to prove its case as alleged in the bill. This it evidently was unable to do, for in presenting its case it introduced in evidence the resolution as insisted upon by defendant. Thereafter Thompson produced the alleged cancellation agreement and it became necessary to file an amended bill of complaint which set up for the first time, and several years after defendant’s resignation as secretary, the alleged cancellation of his contract with complainant. No suggestion was made in the original bill either of a settlement of the matter in controversy between the parties, or that there had been a cancellation or a modification of the contract of December 3, 1904.

There is a direct contradiction in the evidence as to whether defendant ever signed the cancellation agreement. He insisted that he did not; his testimony is supported by that of other witnesses and it finds strong corroboration in the circumstances of the case. It does not appear that any person saw defendant sign the cancellation agreement. Thompson says that the resolution was handed to him by the defendant with the cancellation agreement indorsed thereon. The agreement purports to be by mutual consent. It is signed by Grenslinger only, and notwithstanding the fact that it relieved and, according to Thompson, was intended to relieve the complainant of large responsibility, no record was made of it by Thompson, or by any other officer of the club, and, as stated, its very existence seems to have been unknown until the master had taken much evidence in the case. Under such circumstances we find it difficult to believe that defendant is committing perjury when he says he did not sign the cancellation agreement in question. As against the circumstances and the evidence which tends to show the signature was not that of defendant, certain witnesses, two of whom were professional handwriting experts, testified that in their opinion the signature in question was the genuine signature of defendant; the direct and positive oath of the defendant, strongly supported as it is by undenied circumstances and by the testimony of one Stevens, paymaster of the club, who stated that defendant did not sign the cancellation agreement and that the resolution was in his, the witness’, possession as late as 1910, leads us to the conclusion that the defendant did not sign this agreement. This conclusion is also strongly supported by the subsequent conduct of the parties to the controversy.

It is admitted that during the years that elapsed between the filing of the bill and the resignation of defendant as secretary of the club he had made efforts to adjust his claim against the complainant. Leo J. Doyle, an attorney for defendant, in 1910 endeavored to adjust the claim with the complainant through its then, officers. No denial was then made of the contract between the parties nor was it asserted that it had been canceled. Such discussion as was had related to a basis for determining the membership of the club and the amount due the defendant. The fact that the defendant resigned as secretary of the club did not, we think, furnish any evidence of his intention to waive his rights under his contract, and there is uncontradicted evidence in the record that, at the time the resignation was tendered and accepted, the defendant and officers of the complainant expressly agreed that his resignation was not to affect his rights under the contract.

Thompson and one Lytton testified that in August 1906 complainant and defendant settled the matter of defendant’s compensation for his services on the basis of $21,600 which the defendant had at that time "received, and the further sum of $1,000 to be thereafter paid to him ; it appears that the sum of $1,800 was paid by complainant to defendant, in addition to the $1,000 referred to, in August, September and October following the date of the alleged settlement. Further than this, the original bill filed by the complainant makes no claim of a settlement with Genslinger in 1908. Indeed, the complainant prays in its bill for an accounting against the defendant on the theory, as we understand the pleadings, that the defendant had been paid more than he was entitled to under his contract. Even under the amended bill filed by complainant, it is not asserted that there had been a settlement of the controversy between it and defendant. Complainant’s case as made under its amended bill of complaint is that there was a cancellation of defendant’s contract in 1905. Millard v. Millard, 221 Ill. 86.

Genslinger testified that in the spring of 1907 he had interviews with Thompson and Lytton with reference to his claim and that he at these interviews offered to take the sum of $30,000 in full settlement thereof, payment to be made in the bonds of complainant, and that Thompson stated he would give the notes of the club for this sum, but that he would not pay the amount in the bonds of the club. This testimony is corroborated by that of Charles B. Stafford, defendant’s attorney. Thompson testified that he did not remember this interview ; that he never urged Genslinger to accept $30,000 in notes of the club. He did admit, however, that Genslinger in September, 1907, asked him for a settlement of his claim against the club and that in answer thereto he, the witness, said that the club was in bad financial condition; that he said to Genslinger that the club had a great many creditors and that a suit against it, especially by him, Genslinger, might destroy it; that he, Thompson, asked Genslinger not to bring suit as it might hurt the club. Lytton testified that he did not remember any conversation with defendant at which Stafford was present. He did not, however, deny the truth of Stafford’s testimony. Nor did either Lytton or Thompson assert at this time that Genslinger had either canceled his contract with the club nor that there had been any settlement of his claims against the complainant.

The cancellation agreement is alleged to have been made by Genslinger, July 25, 1905. Thompson testified that the club started out well and that everything went along satisfactorily for about a year and until the spring of 1906; that early in the summer of 1906 “we began to have trouble with our finances, and the applications for membership fell off.” The club was not in the year 1905 in financial difficulties and no reason then existed, so far as the evidence discloses, why Genslinger should cancel, or why he should be requested to cancel, his contract with the club, except that it is asserted Genslinger had been unable to organize and provide accommodations for the larger club which Thompson asserts was contemplated by the parties at the time the contract was entered into. Whatever may be said as to the change made, if in fact any such change was made, in the original plans of the parties the express contract fixed the compensation to be paid the defendant for his services, and it is not asserted, nor is it shown anywhere in the evidence that the defendant agreed to a change in the compensation to be paid him for his services except as claimed that he delivered the cancellation agreement referred to to Thompson.

From the whole record there can be but small doubt of the large value of defendant’s services to complainant. That he devoted much time and labor to the organization of the club is certain. It is conceded that he procured a lease for the club, which its president, Thompson, stated, represented a profit to complainant of $25,000 a year, and which this witness also stated would in 10 years from 1908 represent a value to the club of at least $1,000,000. Other evidence was introduced from which it appears that the single act of defendant in procuring this lease and turning it over without any additional compensation from the club was a service which brought a profit to the club of several hundred thousand dollars.

The contract required the payment to defendant of 6 per cent of all moneys received by the complainant from the sale of memberships in the club. The evidence shows that up to April 30,1915, the club received for memberships a total sum of $771,392.05, 6 per cent commission on this sum would amount to $46,283.52, leaving a balance due Genslinger, under his contract as of April 30, 1915, of $23,683.52. Up to April 30, 1915, 6,305 certificates of membership of the resident and nonresident class and 412 certificates of the life membership class had been issued. More than 5,000 members having been admitted to the club, the defendant is entitled to the compensation provided for in the contract.

It is insisted for complainant that the contract in question was unreasonable. Genslinger brought his suit in the Municipal Court upon an express contract. The prosecution of this suit was enjoined and the parties submitted, without objection, the matters in controversy between them to the jurisdiction of the Circuit Court. No evidence was introduced which directly questioned the reasonableness of the compensation to be paid defendant under the contract. The services rendered by defendant were fully known to Thompson and the other directors of the club. The contract was made by the parties and in part executed by them without question as to its reasonableness. As stated, procuring the lease of the ground upon which the clubhouse was subsequently built and assigning it to the complainant was in and of itself a service of great value to the complainant. Defendant’s other services in procuring a large membership for it was also a matter of much consequence and benefit to complainant. It is evident that during the time of his connection with the club and its board of directors, the defendant was dealing with men of business experience. His services appear to have been efficient and to have been rendered in good faith, and when consideration is given to the value of these services to the club, the provisions of the contract do not appear to have been unreasonable.

It is contended by complainant that the contract in question was voidable on the theory that the directors of a corporation sustain a fiduciary relation to it and its stockholders and are disqualified from voting on a contract in which they are personally interested, unless the contract has received the vote of the majority of disinterested directors. This point is stated in different ways by counsel in their brief, and it seems to be principally relied upon by complainant to defeat the claim of defendant. The theory is that a majority of disinterested members of the board of directors did not vote for the resolution which was adopted on December 3,1904. Counsel have cited many cases in support of their contention, but these cases are not applicable here for the simple reason that the evidence discloses that a majority of the board of directors were not interested in the contract. Defendant was a member of the board of directors, as was his attorney Stafford, who had a 20 per cent interest in the commission to be paid defendant under the contract, and also one Merigold, who was said to be a friend of Gunslinger. There is no evidence in the record that Merigold had any interest whatever in the contract. The evidence discloses that four, a majority, of the directors were disinterested persons, and even if it be conceded that the interest of Stafford was such as might disqualify him, it is clear that complainant has failed to show that the contract was not made by a majority of the board of directors who were not in any way individually interested in its performance.

It is insisted on behalf of the complainant that a contract made by the promoter of a corporation before it is organized is not binding on the corporation, even though it receives benefits therefrom, unless the corporation itself by a subsequent agreement for a valuable consideration agrees to be bound by the contract.

We have examined the authorities cited by counsel, among which are the cases Gent v. Manufacturers’ & Merchants’ Mut. Ins. Co., 107 Ill. 652, and Park v. Modern Woodmen of America, 181 Ill. 214, and do not find that they support in its entirety this contention of complainant. It is true, as asserted, that a contract made with a promoter of a corporation before its organization is not enforceable against the corporation unless such contract is ratified by the corporation after its organization. Cook on Stockholders, sec. 707. Here, however, it is conceded that the contract with defendant was expressly ratified by the corporation. Indeed, the terms of the contract and the compensation to be paid the defendant thereunder can only be determined from an examination of the resolution adopted by the corporation. It received large benefits under the contract, and the defendant performed continuing services of value to it after the corporation was organized.

On the whole record we are of opinion that Genslinger is entitled to recover under his contract; that the evidence heard upon the trial strongly supports his contention that he did not sign the cancellation agreement ; that no settlement was had of matters in controversy between the parties, and that the defendant is entitled to recover the sum. due him under his contract, which the evidence shows to be $23,683.52. Defendant under his cross-bill is not entitled to recover the value of the 1,000 memberships in the club which he claims should have been delivered to him under the terms of his contract. It would be difficult at this time to fix the value of these memberships. We think that under his contract these memberships should be delivered to him and that their value, if they have value, is not for us to determine.

The decree of the Circuit Court of Cook county will be reversed and the cause remanded with directions to that court to dismiss the bill of complainant for want of equity; to enter a decree in favor of the cross complainant for the sum of $23,683.52, and to decree that the complainant be directed to issue to cross complainant the 1,000 memberships in its club herein referred to.

Decree is reversed and the cause remanded with directions.


text:
    Ane C. Jensen, Appellant, v. Christian Peterson and Axel A. Bauer, Appellees.
    Gen. No. 23,738.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Suimvan, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Bill by Ane C. Jensen; complainant, against Christian Peterson and Axel A. Bauer, defendants, to obtain a decree declaring null and void a second trust deed conveying certain premises to secure the payment of a principal note, with interest thereon, for the sum of $2,500. From a judgment dismissing the bill for want of equity, complainant appeals.
    Abstract of the Decision.
    1. Mortgages, § 56

       — when procurance of trust deed not shown to he fraudulent. There was no fraud in the procurance of a second trust deed from a widow to her interest as sole legatee and distributee in her husband’s estate where before the trust deed was executed the grantee sincerely claimed that the grantor and her husband’s estate were indebted to him, and if the grantee had filed a claim against the estate the wife would have received a smaller sum as her share of the estate.
    2. Contracts, § 78* — what is sufficient to support promise. A compromise of a doubtful right is sufficient to support a promise where there is an absence of fraud and both parties act in good faith.
    3. Mortgages, § 54* — when execution of trust deed not against best interests of widow. The execution of a trust deed by a widow, who is the sole legatee and distributee of her husband’s estate, to her equity in the estate, for a debt owed by the estate, is not against her best interests where the claim was clearly provable against the estate.
    4. Mortgages, § 5* — what constitutes good consideration for trust deed by widow. The failure of the creditor of a husband to file a claim against his estate, after his death, at the request of the wife, affords a good consideration for the execution of a trust deed by the wife on her equity as sole legatee and distributee in the estate.
    D. Ryan Twomey, for appellant.
    Emil A. Meyer, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Carrie Martin, Appellee, v. Farr Brothers Company, Appellant.
    Gen. No. 23,745.
    (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 860

      - — when contractor liable for injury to person stepping into excavation for curbing for alley. The contractor, and not the curbing subcontractor, is liable for injuries to a pedestrian due to stepping into an unguarded and unlighted excavation for a curbing at its intersection with an alley, where. the contract of the contractor with the city for curbing and paving streets, including alleys, provides that the contractor shall erect and maintain suitable barriers, and, during the nighttime, necessary lights because of excavations, use or occupancy of the streets, and be liable for all damages occasioned by or resulting from the use and occupancy of the grounds, the independent contractor rule not being invocable.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 13, 1918.
    Rehearing denied May 27, 1918.
    Statement of the Case.
    Action by Carrie Martin, plaintiff, against Farr Brothers Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $1,500, defendant appeals.
    MacChesney, Becker, Angerstein & Rollo, for appellant; Nathan W. MacChesney, Thomas C. Anger-stein, Robert P. Rollo and George W. Angerstein, of counsel.
    Thomas E. D. Bradley, for appellee; Samuel A. Harper and Clayton W. Mogg, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Mesa Melon Growers Association et al., Appellants, v. Edward Byrnes, Appellee.
    Gen. No. 23,837.
    (Not to Ibe reported in full.)
    Abstract of the Decision.
    1. Pasties, § 33

       — what is purpose of intervention in cause. One who intervenes in a cause is simply let in for the purpose of establishing his right to the property or funds in dispute.
    2. Assignments, § 18* — what does not constitute equitable assignment •of fund to be recovered by attorney. Where there is an agreement by a party to pay his attorney a reasonable compensation for his legal services out of the proceeds of litigation, such agreement depending as it does upon the mere responsibility of the employer, does not operate as an equitable assignment of any portion of the fund sought to be recovered in the suit.

      Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding.. Heard' in this court at the October term, 1917.
    Affirmed.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Petition of intervention, in an action by one Edward Byrnes, against Mesa Melon Growers Association, by Henry & Robinson, petitioners, against Edward Byrnes, respondent, to recover for legal services, petitioners seeking recovery for legal services rendered on behalf of Byrnes in such action, and in prior litigation in which Byrnes’ client was involved.. From a judgment in favor of respondent, petitioners appeal.
    Henry & Robinson, pro se.; M. G. C. Harris, of counsel, and Hugh O’Neill, for appellants.
    David K. Tone and H. J. Toner, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Assignments, § 18 — when equitable assignment of interest of attorney in judgment not shown. Evidence held insufficient to show an equitable assignment by an attorney to other attorneys acting for him, in an action against a client for legal services, and in prior litigation in which the client was involved, of any interest in the judgment obtained in favor of the client.


author: Mr. Justice McSurely

text:
    Percy N. Lawrence, Appellant, v. Layton O. Sherman et al., Appellees.
    Gen. No. 23,858.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baidwin, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Bill by Percy N. Lawrence, complainant, against Layton O. Sherman and others, defendants, to enjoin the sale by Sherman and the use of a valuable process for refining oil, which Lawrence had agreed as broker with Sherman and certain other defendants to sell, by the purchasers, and to procure an accounting of royalties, upon which his commission was based. From an order dismissing the bill for want of equity, complainant appeals.
    Oscar M. Wolff and Bernard Naumburg, for appellant.
    W. E. R. Byrne and Allen G. Mills, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Brokers — when sale of secret process to purchaser not procured by broher may not he enjoined. A broker who has knowledge of the existence of a secret process for refining oil and undertakes as a broker to bring the owners and a prospective licensee together, the principals having the right to sell to another than a licensee procured by the broker without liability for payment of compensation, has no interest in the process, even though his compensation is to be based upon a certain percentage of the royalties arising from the license, and consequently cannot enjoin the sale of the process to a purchaser not procured by him.


text:
    Ralph Neufeld (Complainant), Appellee, v. Matilda S. Gudichsen et al. (Defendants). Nilson Brothers (Cross Complainant), Appellee, v. Matilda S. Gudichsen et al. (Cross Defendants), on appeal of Matilda S. Gudichsen, Appellant.
    Gen. No. 23,879.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wihtes, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed May 13, 1918.
    Statement of the Case.
    Complainant, Ralph Neufeld, filed a bill to foreclose a second mortgage trust deed made by defendant Matilda S. Gudichsen, covering a flat building owned by her. Nilson Brothers filed an intervening petition and cross-bill seeking to establish a mechanic’s lien. The master in chancery, to whom the cause was referred, rendered a report recommending a decree in favor of complainant Neufeld, and finding that Nilson Brothers were entitled to a lien. From a decree of the chancellor in accordaoice with the report, Matilda S. Gudichsen appeals.
    Abstract of the Decision.
    1. Mortgages, § 544

       — what may be included in decree of foreclosure. Amounts becoming due pending a hearing on foreclosure may properly be included in the decree.
    2. Usury, § 2* — what constitutes. Usury is an illegal profit required and received by a lender of a sum of money from the borrower.
    3. Usury, § 5* — what does not •constitute. There is no usury in notes secured by a trust deed given a contractor by the owner of a building as part payment, where there is simply an overpayment on the contract after the execution and transfer of the trust deed.
    4. Building and construction contracts, § 54*- — when failure of plumbing subcontractor to comply with contract may not be complained of. The owners of a building cannot complain of the failure of a subcontractor to install a certain make of plumbing fixtures, where the contract is silent as to any particular make, and where the owners frequently observe the installation of the plumbing and make no objection to the character of the equipment.
    5. Costs, § 6* — who pays. It is the general rule that the loser pays the costs of the litigation.
    6. Costs, § 6* — when defendant liable for. The unsuccessful defendants in a suit to foreclose a second trust deed and cross-bill for a mechanic’s lien were properly charged with the costs before the master and with solicitor’s fees, in the exercise of the court’s discretion, where the payment of such fees was provided for by the trust deed and they were reasonable and customary.
    Chytraus, Healy & Frost and John Peter Barnes, for appellant.
    Hyman Polonsky, for appellee Ralph Neufeld.
    Wiley & Mack, for appellee Nilson Brothers; William B. Wiley, of counsel.

      See Illinole Notes Digest, Vols. XX to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Ruth McGinnis, Plaintiff in Error, v. Thomas McGinnis, Walter H. McDonald and Alta McDonald, Defendants in Error.
    Gen. No. 23,068.
    1. Fraudulent conveyances, § 264

       — when absence of fraud in assignments of leaseholds is shown. On a bill to set aside for fraud, as against an attachment in aid of an action on a foreign judgment, assignments of two leaseholds from one defendant to the other, evidence held to sustain the chancellor’s findings as to the absence of fraud, although the circumstances were such as to create an unfavorable inference as to the genuineness of the transaction.
    2. Witnesses, § 254* — when testimony of witness should not be disregarded. The improbability of the truth of matters testified to by a witness does not authorize disregarding such testimony unless it was contradicted or impeached by other evidence.
    3. Witnesses, § 254* — when testimony of unimpeaehed may not be ignored. The testimony of unimpeached witnesses cannot be ignored merely because what they testified they did in a business transaction may not appear to be the wisest and safest thing to have done under the circumstances.
    4. Fraudulent conveyances, § 236* — when burden of showing fraud in assignments of leaseholds is not sustained. On a bill to set aside an assignment of leaseholds for fraud, the burden of proving fraud is upon the complainant and is not sustained by ridiculing the probability of defendant’s testimony rather than proof of substantive facts directly tending to show fraud.
    5. Fraudulent conveyances, § 236* — when assignment of leaseholds is prima facie fair. On a hill to set aside the assignment of leaseholds for fraud, where the relation between the assignor and assignee was not such as to create a presumption of fraud, the transaction must be deemed prima facie fair and honest until fraud is proven.
    6. Evidence, § 478* — when failure to call witness does not create unfavorable inference against party. Where the burden of proof of certain facts rested upon the complainant, the failure of one of the defendants to call a codefendant as a witness, or other persons who could have testified as to matters testified to by such defendant, does not create an unfavorable inference against the latter where all of such witnesses were just as accessible to complainant as to him.
    7. Fraudulent conveyances, § 109

       — when creditor may he preferred. As against other creditors, a creditor violates no rule of law by taking payment of his demands from the debtor, and the latter may prefer him as a creditor even by selling his property below its market value, provided the transaction was not done with a view to delay, hinder or defraud his other creditors.
    8. Fraudulent conveyances, § 265* — how intent to defraud creditors must he shown. Intent of a debtor to defraud creditors in making a transfer of his property must be proved by evidence tending to show its existence, and from which it legitimately results as a conclusion of fact drawn by a court or jury without the aid of any legal presumptions.
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 14, 1918.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for plaintiff in error.
    George H. Mason, for defendant in error Bernard F. Clettenberg, trustee of Thomas McGinnis.
    Edward H. Morris, for defendants in error, the McDonalds.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff in error filed her bill in equity to have declared null and void for fraud, as against an attachment in aid sued out in her behalf, assignments of two leaseholds by defendant in error McGinnis to defendant in error McDonald. On a hearing before the chancellor the bill was dismissed for want of equity.

Complainant made proof of these undisputed facts: That Thomas McGinnis had an undivided interest in another piece of real estate, the rents of which were collected by said McGinnis through McDonald for several years prior to 1912, and with respect to which a suit for accounting was brought in the State of Missouri by plaintiff in error against defendant in error McGinnis, wherein on March 8, 1915, a judgment for $13,434.95 was rendered against the latter; that in that suit McDonald was a witness for McGinnis, preparing and presenting an account of what purported to be his collections and expenditures connected with the management of said property; that on June 11th, McGinnis conveyed to one Harding, and the latter to McGinnis’ wife, property in Arizona worth $10,000 to $12,000; that McDonald took the acknowledgments of both conveyances ; that June 16th, he assigned to McDonald the two leaseholds in question (which had 89 years to run), one for property on State street, the other to property on Monroe street, Chicago, valued, according to a witness for complainant, at $100,000 and $75,000 respectively; that on June 19th, complainant brought suit against McGinnis on the Missouri judgment, and 10 days later sued out said attachment in aid and levied on said leaseholds as the property of McGinnis; that in September she filed the bill herein; that in November, McDonald assigned the State street leasehold to one Pick for $57,500; that the original lease to the State street property contained a provision requiring 20 days ’ notice to the owner, a nonresident, of any assignment thereof, a waiver of which was procured by telegram, with McDonald’s knowledge, before the assignment was made to him; that he accompanied McGinnis to have the assignments prepared, one by said owner’s agent, the other by McGinnis’ attorney; that while these negotiations were pending McGinnis told said agent that he would sell the State street leasehold to the owner for $60,000; that he had previously refused offers of $50,000 therefor; that the considerations recited in the assignments to McDonald were $10 and $2 respectively; that the usual precaution of buyers of real estate to procure an abstract of title or memorandum of search of the record was not taken by McDonald ; that immediately after the assignment he advertised the State street leasehold for sale.

Belying mainly on these facts and circumstances as constituting prima facie a case of fraud, complainant rested. Thereupon the defense called McDonald and rested with his testimony to the effect that he had bought the leasehold for a good and valuable consideration, paying $75,000 therefor. It is argued from this chain of events, and the additional circumstances brought out on the cross-examination of McDonald respecting the consideration and his knowledge of McGinnis’ affairs, that the chancellor’s conclusions were against the weight of evidence.

McDonald was in the real estate business, connected with a firm doing an extensive business, and had been for 30 years. While he denied knowledge of said judgment against McGinnis, he was on more or less intimate terms with McGinnis, apparently conversant with his property interests, and knew that he thus disposed of nearly all his real estate within a few days.

McDonald explained that the consideration of $75,000 was made up as follows: A mortgage on the State street property amounting, with interest, to $20,400; $3,660 taxes; $35 paid to the owner’s agent; $3,000 for occupancy of said premises by McGinnis for 3 months after the assignment; $12,000 cash advanced by bim to take up a note of McGinnis ’ at a bank and $666 accrued interest, to secure which he held an assignment in blank of the Monroe street property; $6,225 cash advanced later for which McGinnis gave due bills; assumption of another note of McGinnis’ to the same bank for $12,500, guaranteed by McDonald’s firm by himself, its vice president, and the balance in cash $16,435.

McDonald testified that he kept no bank and no ledger account, and kept his money in a sealed envelope in a hotel safe; that he made the above cash advances and payments therefrom; that he did not assume such mortgage nor take np the note of $12,500 until he received the consideration for his sale or assignment to Pick; that in his negotiations with McGrinnis he took no account of unexpired insurance or of over $2,000 McGrinnis had paid in advance for ground rental; that the bank note of $12,500 so taken up by him, which was produced in such mutilated state as not to disclose the date of execution, was so mutilated by his tearing off the revenue stamp for a boy; that the only memorandum he had of the above items of consideration was such as he made in a blank book or diary kept in his pocket.

While these and other minor circumstances mig’ht well be said to raise much doubt and create unfavorable inferences as to the genuineness of the transactions between McGrinnis and McDonald, we cannot say that the matters so testified to by him were altogether improbable. But if they may be so deemed, unless his testimony was contradicted or impeached by other evidence, it cannot be utterly disregarded. (O’Callaghan v. Dellwood Park Co., 242 Ill. 336; Zetsche v. Chicago, P. & St. L. Ry. Co., 238 Ill. 244; Bowman v. Ash, 143 Ill. 649, 663-664.) As said in Dunn v. Weir, 34 Ill. App. 613: “It would hardly be safe practice to ignore the testimony of unimpeached witnesses because what they say they did in a business transaction may not appear to be the wisest and safest thing to do, under the circumstances.”

The burden of proving fraud was on complainant. But she seems to have relied more upon ridiculing the probability of McDonald’s testimony than proof of any substantive facts directly tending to show fraud. Ridicule is sometimes an effective form of argument but it is not evidence. True, there is much ground for suspicion in the circumstances, but there was no proof of any such relation between the parties that fraud would be presumed. On the contrary, in such a case the transactions would be deemed prima facie fair and honest until fraud was proven. (Mathews v. Reinhardt, 149 Ill. 635, 642.) There was no proof of McGinnis’ insolvency, or of an actual or express intent to hinder, delay or defraud his creditors, such as must be proven without the aid of legal presumptions where a conveyance is made upon a valuable consideration (Hughes v. Noyes, 171 Ill. 575, 580), or that McDonald lacked financial means, or that he did not have money or keep it in the manner claimed, or was not a bona fide creditor of McGinnis, or that there was no such form of indebtedness at the bank or otherwise as he claimed, or that he entered into any secret trust. McDonald thus claiming to have paid a good and valuable consideration, stood, as he might well do, on his own word until it was impeached or discredited by other evidence than mere suspicious circumstances.

The burden of proving fraud resting with complainant, the failure to call McGinnis raised no more of a presumption against McDonald than against her. McGinnis, the hotel cashier, the clerical force of the banks, and those connected with McDonald’s firm, and its books, were apparently just as accessible to complainant as to McDonald. The failure of McDonald, therefore, to call any of such witnesses, equally accessible to each, furnished no ground for a prejudicial inference against him. (Brown v. State, 98 Miss. 786, and cases there cited; People v. Munday, 280 Ill. 32.)

If McDonald was a creditor of McGinnis, as he testified, he violated no rule of law in taking payment of his demands (Gray v. St. John, 35 Ill. 223-240), and McGinnis had a right to prefer him as creditor, even if in failing circumstances and even by selling his property below its market value (which he thought was worth about $97,500), provided the transaction was not done with a view to delay, hinder or defraud his other creditors. (Waddams v. Humphrey, 22 Ill. 661-663.) But “the actual and express fraudulent intent must be proved by evidence tending to show its existence, and from which it legitimately results as a conclusion of fact drawn hy a court or jury without the aid of any legal presumptions.” (2 Pomeroy’s Equity Jurisprudence, sec. 971.)

While we might share complainant’s suspicions we must agree with the chancellor’s conclusions.

It is urged that it was error to reject the deposition of McDonald filed in the Missouri case relating to other property than that involved in these assignments. While its relevancy and materiality are not apparent, yet if received we fail to see how it would have led to a different conclusion. The decree will be affirmed.

Affirmed.


author: Mr.. Presiding Justice Barnes

text:
    Howard S. Gemmill, Administrator, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 23,307.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Sltjsser, Judge, presiding. Heard in the Branch Appellate .Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Howard S. Gemmill, administrator of the estate of Anton Czemer, plaintiff, against Grand Trunk Western Railway Company, defendant, to recover damages for wrongful death. From a judgment for plaintiff, defendant appeals.
    Kretzinger & Kretzinger and L. L. Smith, for appellant.

      Abstract of the Decision.
    RArr.noads, § 562

       — when boy boarding freight train is guilty of contributory negligence. In an action for the death of a boy 12 or 13 years old who was run over by defendant’s train, evidence that deceased in company with other hoys had gone upon the right of way for the purpose of picking up coal and that decedent sustained the injury while attempting to board a freight train moving at a speed of about 6 miles per hour, shows contributory negligence as a matter of law.
    Earl J. Walker, for appellee; A. R. Miller, of counsel.

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

   Mr.. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mary Elizabeth Trumbull, Defendant in Error, v. William H. Bryant, Plaintiff in Error.
    Gen. No. 23,404.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Mary Elizabeth Trumbull, plaintiff, against William H. Bryant, defendant, to recover rent, of demised premises. From a judgment for plaintiff on an instructed verdict, defendant brings error.
    West & Eckhart, for plaintiff in error.

      Abstract of the Decision.
    Landlord and tenant, § 325

       — when surrender of premises with acquiescence of lessor shoion. In an action for rent, a surrender of leased premises with the lessor’s acquiescence is shown by the defendant’s uncontradicted testimony that he had vacated the premises some months before he gave up the keys to plaintiff, that he had paid rent up to that time, that the keys were given up at plaintiff’s request, defendant stating at the time of surrendering them that in so doing he was to be released from further obligations, and that plaintiff took and retained the keys without dissenting from that proposition and without demanding any further rent until about 9 months later.
    Henry M. Hagan, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mary Lawson, Defendant in Error, v. A. Wilberforce Williams, sued as A. Wilerfore Williams, Plaintiff in Error.
    Gen. No. 23,453.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action by Mary Lawson, plaintiff, against A. Wilberforce Williams, sued as A. Wilerfore Williams, defendant, to recover money claimed to be due plaintiff. From a verdict for plaintiff for a tortious conversion of her property and a judgment thereon, defendant brings error. The bill of exceptions having been stricken, review was had upon the common-law record.
    Abstract of the Decision.
    Municipal Court of Chicago, § 13

       — when statement of claim is insufficient to support verdict in tort for conversion. A statement of claim alleging that plaintiff’s claim is “for money due and received by defendant from moneys withdrawn” from a certain bank during a certain period and that defendant had frequently promised to pay plaintiff “the moneys so due her from withdrawals made by him from said bank,” followed by an averment that “though often requested defendant has not paid plaintiff said money * * * but has fraudulently and feloniously withdrawn said moneys from said bank and converted same to his own use,” although possibly good as in assumpsit if the verdict were responsive to that theory, will not support a verdict in tort for conversion as it does not set forth the elements of a tort.
    W. M. Farmer, for plaintiff in error.
    William S. Stahl, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Olive M. Nelson, Appellant, v. Society Nordstjeran, Appellee.
    Gen. No. 23,495.
    (Not to foe reported in full.)
    Abstract of the Decision.
    Insurance, § 905

       — When shown that notice of assessment was duly mailed and received. Findings of the trial court that notice of an assessment in a beneficial society was duly mailed to and received by a member, held sustained by the evidence in an action to recover a death benefit, and to warrant a judgment for defendant under evidence that the by-laws provided for the automatic suspension of a member failing to pay an assessment within the prescribed time and that such assessment was not paid within that time.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Cavekly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Statement of the Case.
    Action hy Olive M. Nelson, plaintiff, against Society Nordstjeran, defendant, to recover a death benefit. From a judgment for defendant, plaintiff appeals.
    Alfred A. Norton and Albert G. Miller, for appellant.
    Brecher & Chindblom, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    G. W. Farrand, Appellant, v. Chicago, Milwaukee & St. Paul Railway Company, Appellee.
    Gen. No. 23,509.
    (Not to be reported in full.)
    Abstract of the Decision.
    Cabbiebs, § 248

       — when negligence in causing freezing of hogs in transit is not shown. In an action against a carrier for injury to a shipment of hogs, some of which were frozen in transit, evidence held to sustain a finding that no negligence on the part of defendant was shown, the damage being due to the intense cold which prevailed at the time and to delays in transit caused by the inclemency of the weather, and over which defendant had no control, and plaintiff having contributed in part by not furnishing more corn and straw to the stock while in transit, he having accompanied the shipment.
    Appeal from the Municipal Court of Chicago; the Hon. Denis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Rehearing denied May 24, 1918.
    Statement of the Case.
    Action by Gr. W. Farrand, plaintiff, against Chicago, Milwaukee & St. Paul Railway Company, defendant, to recover for damage to a shipment of hogs. From a judgment for defendant, plaintiff appeals.
    Stewart Reed Brown, for appellant.
    J. N. Davis and Julius M. Lorenz, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Thomas F. Foy, Plaintiff. Robert L. Stephens, Intervening Petitioner, Appellant, v. India Rubber Tire Company, Appellee.
    Gen. No. 23,520.
    1. Attorney and client, § 146

       — what is effect of settlement on amount lien attaches to. The lien of an attorney, under the Attorney’s Lien Act (J. & A. IT 611, Hurd’s Rev. St. ch. 82, IT 55), attaches only to the amount paid under a direct settlement with the client and not to the amount of the judgment recovered, where pending an appeal by defendant a settlement was effected directly with the client and without the knowledge or consent of the attorney.
    2. Attorney and client, § 146* — what is right of client as to settling claim. The Attorney’s Lien Act does not deprive the -client of the right to settle his claim at any stage of the proceedings, even after an appeal has been taken.
    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 14, 1918.
    Robert L. Stephens, for appellant.
    John A. Bloomingston, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellant Stephens filed an intervening petition in this cause to enforce a lien for his agreed fee under the Attorney’s Lien Act (Hurd’s Rev. St. ch. 82, par. 55, J. & A. If 611).

The undisputed facts stated chronologically are as follows:

Plaintiff Foy hired Stephens, appellant, as attorney to prosecute this cause and agreed to pay him “forty per cent (40%) of all money received or recovered,” either by suit or settlement without suit. Thereupon appellant served the defendant company, appellee herein, with the notice required by the act, started this suit, and obtained a judgment for plaintiff for $1,500, from which defendant company appealed to this court. While the appeal was pending plaintiff Foy, without the knowledge or consent of appellant, settled with the company for $500, agreeing to vacate and satisfy said judgment. Thereupon defendant company offered petitioner $200, 40 per cent, of the amount so recovered by settlement, as his fee, which he declined, claiming he was entitled to 40 per cent of the amount of the judgment, viz., $600. The company then abandoning its appeal, petitioner procured its dismissal, obtained an order below reinstating the cause for further proceedings, and filed this intervening petition, claiming his lien attached to said judgment. From an order allowing him $200, with legal interest from the date of judgment, he has appealed.

The question raised and presented is whether his lien attached to the judgment or the money recovered on settlement.

It is conceded that had there been no appeal his lien would have attached to the judgment. The judgment, however, was not final pending the appeal, which was a continuation of the action, thus leaving the contingent fee unliquidated. But it became liquidated by the settlement, and the money paid thereunder was money “recovered” within the meaning of the statute, to which the lien then attached. (Standidge v. Chicago Rys. Co., 254 Ill. 524.) The client still retained control of his case and had the right to make a settlement of his claim without the consent of his attorney, especially where, as here, his good faith is not brought in question, and the lien law cannot and does not attempt to put any limitation on that right. (Sutton v. Chicago Rys. Co., 258 Ill. 551.) Plaintiff was not com-polled, to take his chances of reversal, and, exercising control of his own case, had the legal right to settle and adjust the cause of action while on appeal as well as at any other stage of the proceedings. The following authorities sustain these views: (Peri v. New York Cent, & H. River R. Co., 152 N. Y. 521; Andrewes v. Haas, 214 N. Y. 255; In re Snyder, 190 N. Y. 66; Platt v. Jerome, 60 U. S. 384; In re Salant, 158 N. Y. App. Div. 697; Curtis v. Metropolitan St. R. Co., 118 Mo. App. 341; Stephens v. Metropolitan St. R. Co., 157 Mo. App. 656.) The judgment, therefore, not being final at the time of the settlement whereby the amount of the fee was liquidated, the lien did not attach to the judgment but to the money recovered, and the court’s allowance was. correct.

Affirmed.