text:
    Clara Hjertaas, Appellee, v. Gage Brothers & Company, Appellant.
    Gen. No. 19,772.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Clara Hjertaas against Gage Brothers & Company to recover for personal injuries received by plaintiff by being struck by the end of the shaft of a wagon driven by an employee of defendant. The facts showed that the plaintiff was crossing Wabash avenue by walking east on the north side of Madison street and that at the time she had reached a point within about one or two feet of the curb, defendant’s wagon came from the east on Madison street, turned the corner to go north on Wabash avenue and struck plaintiff. It appeared that a crossing policeman just before the accident signaled with his whistle for the traffic to cross Madison street, and there was evidence tending to show that the wagon was driven swiftly on turning the corner. From a judgment entered on a verdict in favor of plaintiff for two thousand dollars, defendant appeals.
    Abstract of the Decision.
    1. Negligence, § 187

      —sufficiency of evidence. In an action for personal injuries received by plaintiff by being struck by a shaft of defendant’s wagon when she was crossing a street, held that a verdict for plaintiff was sustained by the evidence.
    2. Negligence, § 188

      —sufficiency of proof of due care. The fact that plaintiff was in the exercise of due care need not be proved by direct and positive evidence; it is sufficient if such fact may be fairly inferred from the circumstances in evidence.
    3. Appeal and error, § 1561

      —when refusal of requested instructions harmless. Refusal of requested instructions covered by other instructions given, held harmless.
    Defendant urged as ground for reversal that the evidence was insufficient to show that plaintiff was in the exercise of due care, and that the court erred in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence.
    Helmer, Moulton, Whitman & Whitman, for appellant ; Lloyd C. Whitman, of counsel.
    J. A. Arkin and Richard J. Finn, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    William Herr v. William R. Henriksen et al.; Holmes Disappearing Bed Company, Appellee, v. William R. Henriksen et al., on appeal of William R. Henriksen, Appellant.
    Gen. No. 19,848.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by William Herr against William R. Henriksen and others to foreclose a mechanic’s lien on real estate belonging to Henriksen. After the issues of the original bill had been referred to a master the Holmes Disappearing Bed Company, a corporation, which was one of the parties defendant to the original bill, filed its answer in the nature of an intervening petition to foreclose a lien claim of its own against the certain buildings involved in the original proceeding. Subsequently the claims of Herr were settled, the original bill dismissed and Herr’s lien discharged without prejudice to the Holmes Disappearing Bed Company, leaving the issues in the case solely between the company and'the remaining defendants.
    The intervening petition filed by the Holmes Disappearing Bed Company set out the fact of the ownership of the buildings in Henriksen, and stated that said Henriksen requested petitioner to furnish and deliver at said premises, for use therein, four disappearing beds and four bookcases and writing desks combined, for each of the buildings, and that there was a written contract evidencing the agreement between the parties. The master reported a finding that Henriksen was indebted to petitioner in the sum of $588 with interest, and that he was entitled to a lien therefor. Upon the report of the master, the court, without hearing any other evidence, entered a decree confirming and approving the master’s report and declaring petitioner entitled to a lien. To reverse the decree, the defendant Henriksen appeals.
    Abstract of the Decision.
    1. Mechanics’ liens, § 196

      —when decree not sustained by the evidence. In a suit to enforce a mechanic’s lien against buildings for disappearing beds, bookcases, etc., held that a decree awarding a lien could not be sustained for the reason that there was no evidence in the record to show that articles furnished were so attached to the buildings or the improvement as to become a part of the real estate.
    2. Mechanics’ liens, § 23

      —when articles furnished belong to classification under section 1 of Mechanics' Lien Act. Articles furnished such as folding beds and combination bookcases and writing desks, held not classed as “materials” within the meaning of section 7 of Mechanic’s Lien Act, J. & A. ¶ 7139, but rather to come within the provisions of section 1 of such Act, J. & A. ¶ 7145, which, under certain conditions, provides a lien for fixtures, machinery, apparatus, etc.
    Appellant urged as ground for reversal that there was no evidence in the record to show that the articles furnished were in any wise attached to the buildings or in any wise became fixtures either by actual attachment or by adoption and use.
    Aaron R. Eppstein, for appellant.
    Robert W. Dunn, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    John F. Devine, Administrator, Defendant in Error, v. Andrew Bickel, Plaintiff in Error.
    Gen. No. 19,292.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.

      Statement of the Case,
    Action by John F. Devine, administrator of the estate of Martin Podpecan, deceased, against Andrew Bickel in the Municipal Court of Chicago to recover three hundred dollars, with interest, loaned by the deceased to defendant. It was alleged in the statement of claim that the defendant gave the deceased, at the time of the loan, a promissory note to evidence the loan; that the note had been lost; that it was never indorsed or transferred by the deceased, and that there was due on the same $333; and the plaintiff offered a bond to the defendant in double the amount due, to hold him harmless from further payment of the said note, as by statute in such case made and provided. The defendant, in his affidavit of merits, admitted the making of the said note, and that the same had never been paid, and he offered to pay the same upon production, cancellation and surrender thereof.
    The case was tried by the court without a jury. The plaintiff made proof tending to establish the loss of the note and then tendered to the defendant in open court an indemnity bond as provided for by section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, in the sum of $666, with sureties to be approved by the court, but the defendant refused to accept the bond. The court found the issues for the plaintiff and entered judgment on the finding. To reverse the judgment, defendant prosecutes a writ of error.
    The defendant contended that the note in question was adapted to circulation by an indorsement thereon, and for that reason absolute proof that the note was actually lost or destroyed was necessary to entitle the plaintiff to a judgment; that the evidence in the case does not show absolutely that the note was lost or destroyed, nor. that the deceased owned the note at the time of his death. The defendant further contended that the proof did not show that the deceased had not indorsed the note.
    117

      Abstract of the Decision.
    1. Lost instruments, § 14a

      —sufficiency of proof to establish loss or destruction of note. Since the enactment of section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, empowering the court to protect the-maker of -a lost note by requiring the plaintiff to execute an indemnity bond, the plaintiff is not required to prove absolutely the-loss or destruction of the note in cases where it is not shown that it was not adapted to circulation by an indorsement thereon, and proof which reasonably shows its loss is sufficient.
    2. Lost instruments, § 9

      —effect of refusal of tender of indemnity bond. Where in an action on a lost note there was proof sufficient to reasonably show that the note was Tost, and defendant,, though admitting the indebtedness, refused a tender of an indemnity bond as provided by section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, the court on entering judgment against him is not required’ to order the plaintiff to execute such bond, and defendant cannot thereafter complain ¿hat he may suffer loss through the note.
    Caswell & Healy, for plaintiff in error.
    John M. Bryant, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Paul Tomanicka, Plaintiff in Error.
    Gen. No. 19,426.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Complaint filed in the Municipal Court of Chicago-by the City of Chicago, charging Paul Tomanicka with a violation of section 2012 of the Municipal Code, commonly known as the ‘‘disorderly conduct section.” Defendant waived a trial by jury, and the court found the-defendant guilty and assessed a fine in the sum of one dollar. To reverse a judgment entered on the finding, defendant prosecutes a writ of error.
    Abstract of the Decision.
    Disorderly conduct, § 1

      —when finding of guilty sustained by the evidence. On a complaint charging the defendant with disorderly conduct in violation of a city ordinance, held that plaintiff’s evidence made out a prima facie case and that a finding of guilty was not manifestly against the weight of the evidence.
    Defendant urged, as ground for reversal that the evidence of plaintiff, even if true, did not justify the finding of guilty, and that the finding was manifestly against the weight of the evidence.
    John C. Trainor, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court. •


text:
    Edwin B. Harts, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 19,448.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and judgment here.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action of the fourth class brought in the Municipal Court of Chicago by Edwin B. Harts against the City of Chicago to recover $290 alleged to be due as interest upon two deposits made by plaintiff with defendant for the purpose of having certain water pipe extensions made in a certain street by the defendant. The first deposit was made on June 4, 1907, and the second deposit on June 19, 1907. Plaintiff received the following receipt or certificate of deposit:
    “$1302.33 City of Chicago. #1299.
    Department of Public Works,
    Bureau of Engineering.
    June 19th, 1907, June 4th, 1906.
    WATER PIPE EXTENSION DIVISION.
    It is hereby certified that Edwin B. Harts has advanced the sum of Thirteen Hundred and Two and 33/100 Dollars for the purpose of laying 980 feet of 6 inch water supply pipe in Mozart Street 320 feet ■south of 43rd St. to 45th St.
    Section 1906 Revised Code: Whenever, upon a proper survey it is shown that a permanent annual revenue of Ten (10) cents per lineal foot is being derived from such water mains so laid then such money so advanced as aforesaid shall be repaid to the person or persons so advancing the same; provided, however, if the money so advanced, is not paid back within two years, interest at the rate of Three and One Half (3½) per cent, per annum shall be allowed after the expiration of such two years until paid.
    Approved:
    John Erickson,
    City Engineer.
    Approved:
    John J. Hanberg,
    Commissioner of Public Works,
    By
    Paul Redeski,
    Deputy Commissioner.
    E. L. Lucas,
    Supt. Water Pipe Extension.”
    On April 16, 1912, the plaintiff was notified by the City that a survey of the water extension in question showed a revenue to the City of 16 cents per lineal foot, and that the City would pay the said certificate of the plaintiff upon presentation of the same. The plaintiff presented the certificate to the City, and the City offered him a voucher for the amount of the principal advanced by the plaintiff, but it refused to pay him any interest on the same. The plaintiff accepted the amount of the principal under protest.
    Abstract of the Decision.
    Interest, § 4

      —construction of agreement as to time interest begins to run. A certificate of deposit given, for money advanced to a city for having certain water pipe extensions made in a street, construed as providing that a specified rate of interest was to begin to run on the deposit two years after the date of the deposit, instead of two years after a survey showing a permanent annual revenue of ten cents per foot derived from the water mains so laid (following Merchants Loan and Trust Co. v. City of Chicago, 264 Ill. 76).
    The case was tried by the court without a jury. The parties stipulated “that, during a period from 1905 to 1911, the City of Chicago had, in numerous instances, repaid to the holders of similar certificates the principal and interest at the rate of three and one-half per cent, per annum upon said deposits, the interest being computed in these other cases at a period beginning two years after the date of the deposit of the money with the City up to the date of payment, and that the City has done this in cases where a survey had not been made. ’ ’ To reverse a judgment for defendant, plaintiff prosecutes a writ of error.
    Burke, Jackson & Burke, for plaintiff in error.
    William H. Sexton, for defendant in error; Nicholas Michels, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Minnie Zahl and Louise Zahl, Defendants in Error, v. Mary A. Roberts, Plaintiff in Error.
    Gen. No. 19,475.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.

      Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Minnie Zahl and Louise Zahl against Mary A. Roberts. In the statement of claim the plaintiffs charged that the “defendant, Mary A. Roberts, wrongfully, wickedly and feloniously conspiring with one Fred F. Roberts, her husband, to cheat and defraud the plaintiffs induced them to deliver to her certain furniture then "the property of the plaintiffs, of the value of, to-wit: Three Hundred and Fifty Dollars ($350.00) and to accept in payment therefor the note of one Rudolph E. Hamann, an employee of the defendant, which said note the defendant well knew the said Hamann was and would be unable to pay, and was therefore worthless, but which the defendant and said Fred F. Roberts represented to the plaintiffs was good. Plaintiffs aver further, that shortly thereafter the defendant sold the said furniture so wrongfully obtained by her, and received the entire proceeds of the said sale.” The defendant filed an affidavit of merits specifically denying each and every one of the allegations of the statement of claim. The -case was tried before the court without a jury, and the court found the defendant guilty, and assessed the plaintiffs’ damages at the sum of $350 in tort, and judgment was entered upon the finding. To reverse the judgment, defendant prosecuted a writ of error.
    Defendant urged as ground for reversal: (a) That the finding and judgment is wholly unsupported by the evidence in the case; (b) That the finding is contrary to the weight of the evidence; (c) that the finding and judgment of the Municipal Court are contrary to the findings of fact made and the propositions of law by the court.
    The following proposition of law was submitted to the court by the defendant and marked “held”:
    “The court holds as a matter of law that before there can be any recovery by the plaintiffs in this case, the plaintiffs must prove" by a preponderance of the evidence that the defendant falsely represented to the plaintiffs that the note of Rudolph E. Hamann was good; and that the plaintiffs, relying upon such representations of the defendant and believing such representations to be true, accepted said note in payment of the furniture in question; and the plaintiffs must further prove that at the time the defendant made such representations, said'representations were in fact false and that the defendant knew such representations to be false.”
    Abstract of the Decision.
    1. Conspiracy—when finding of guilty not inconsistent with special findings. In an action for damages alleged to have resulted from defendant wrongfully conspiring with her husband to defraud plaintiffs by inducing them to deliver to defendant their furniture and to accept in payment the note of an irresponsible third person, a finding of guilty is not inconsistent with and contrary to special findings of fact, to the effect that defendant did not personally induce the plaintiffs to deliver the furniture and to accept the note in payment therefor.
    2. Conspiracy—propositions of law. In an action for damages alleged to have resulted from defendant conspiring with her husband to defraud plaintiffs by inducing them to deliver furniture to defendant and to accept the note of an irresponsible person in payment therefor, a proposition of law with reference to matters plaintiff was required to prove by a preponderance of the evidence, held to correctly state the law governing the case.
    Charles C. Spencer, for plaintiff in error.
    Cyrus J. Wood and William G. Wood, for defendants in error; Ernest C. Reniff, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

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


text:
    W. F. Hanlon, Defendant in Error, v. John P. Dunne, Plaintiff in Error.
    Gen. No. 19,504.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action of the fourth class brought in the Municipal Court of Chicago by W. F. Hanlon against John P. Dunne to recover $120 alleged to be due as commissions on a sale of defendant’s real estate. The case was tried before a court and jury and a verdict was returned in favor of plaintiff for the amount of the claim. To reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    The suit was based on a letter signed by the defendant and addressed to- the plaintiff, which read as follows:
    “Chicago, Illinois, Sept. 20, 1910.
    Mr. W. F. Hanlon,
    1107 Schiller Building,
    Chicago, Ill.
    Dear Sir:
    I hereby grant you for a period of Thirty Days from this date and thereafter until this agreement is revoked by me in writing the exclusive right to sell the property known as No. 1006 North Franklin Street, Chicago, Illinois, improved with a two-flat frame building with basement.
    In consideration of your services in endeavoring to sell the said property I agree to pay you in case of a sale a commission of one Hundred Twenty Dollars of the price obtained if a purchaser is procured during said period, by you or me or any one else, upon any terms that I may accept.
    The price of the property is Thirty-Five Hundred Dollars ($3,500) and there is an existing encumbrance of $1,300, which the purchaser is to assume and pay me the difference.
    I agree to furnish a merchantable abstract of title to the said premises brought down to date of sale, or a title guarantee policy for the amount of the above named purchase price, and within five days after the acceptance of said title I agree to deliver a good and sufficient warranty deed conveying said property to the purchaser.
    Abstract of the Decision.
    1. Brokers, § 33

      —when unilateral contract to pay commissions binding. A contract to pay a real estate agent commissions, though unilateral in its inception, becomes a valid and binding contract where the agent commences his efforts to sell the property.
    2. Brokers, § 37

      —when entitled to commissions under contract though not procuring cause of sale. Under an agreement by the owner to pay a real estate agent commissions, if a purchaser is procured by the agent or the owner or any one else, upon any terms the owner would accept, the agent is entitled to commissions whether he procured the purchaser or not, provided he had not abandoned the contract.
    3. Brokers, § 88

      —when finding of fury as to right to commissions sustained by the evidence. On writ of error to review a judgment in favor of a real estate agent for commissions, the contentions of the defendant that the contract between him and the plaintiff had been abandoned by the plaintiff and that he was not the procuring cause of the sale, held to have been controverted questions of fact upon which the verdict of the jury was conclusive, it not appearing that the verdict was manifestly against the weight of evidence.
    (Signed) John P. Dunne.”
    The facts showed that immediately upon the receipt of the letter the plaintiff made efforts to sell the property, and that in July, 1911, the defendant sold the property to certain persons, for the sum of $2600, and that the plaintiff took no personal part in the immediate transaction.
    William M. & William S. Johnston, for plaintiff in error.
    Beach & Beach, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    James G. Scovern and Frank E. Baldwin, copartners, trading as Scovern and Baldwin, Plaintiffs in Error, v. Chicago, Milwaukee and St. Paul Railway Company, Defendant in Error.
    Gen. No. 19,562.
    1. Carriers, § 83

      —place of delivery. Where the bill of lading issued by a railroad company designates the destination of the" consignment as a certain side track in a city, delivery must be made at the side track so specified.
    2. Carriers, § 71

      —place of delivery for purpose of inspection. Where the bill of lading issued by a railroad company designates the destination of the consignment as a certain side track in a city, the lawful holder of such bill of lading has the right to inspect the consignment at such side track and cannot be required to make the inspection upon another side track, which, by the rules of the railroad known to such holder, has been set aside for inspection, ordering and diverting purposes, the siding designated in such bill of lading being, under the company’s rules, reserved solely for cars intended to be immediately unloaded.
    3. Carriers, § 80

      —right of carrier to change place of delivery. A clause in a bill of lading providing for carriage “to its usual place of delivery at said destination” does not give the carrier the right by its rules to change the place of destination specifically named by setting apart tracks at a different point at which the holder of the bill of lading might inspect the consignment, and upon the presentment of the bill of lading have the car diverted to its proper destination, and this is true although the holder of the bill of lading had knowledge of the carrier’s custom in that respect.
    4. Carriers, § 80

      —when evidence of general custom, inadmissible to construe bill of lading as to place of delivery. Where a bill of lading specifically designated the destination as a particular siding in a certain city, the fact that it also contained a provision for carriage “to its usual place of delivery at said destination” and that, under the rules and general custom of the company, cars were delivered at a certain “holding and inspection track” about two miles from the siding designated, and diverted to such siding only for the purpose of immediate unloading, and on the production of the bill of lading does not create an ambiguity permitting evidence of such general custom, and thereby establishing a destination other than that named in the bill of lading.
    5. Carriers, § 83

      —when presentation of bill of lading unnecessary to require delivery at place provided in bill of lading. Where the bill of lading issued by a railroad company designates the destination of the consignment as a certain side track in a city, the lawful holder of such bill of lading may require delivery to be made at such side track without being required to present the bill of lading as a condition precedent to having the car placed upon such siding.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913..
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Harry S. Ditchburne, for plaintiffs in error.
    C. S. Jefferson and J. N. Davis, for defendant in error; H. H. Field, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

James G. Scovern and Frank E. Baldwin, copartners, operating and doing business under the firm name of Scovern and Baldwin, plaintiffs in error (hereinafter referred to as plaintiffs), brought three actions of the fourth class in the Municipal Court of Chicago against the Chicago, Milwaukee and St. Paul Railway Company, defendant in error (hereinafter referred to as the defendant), to recover from the defendant the value of three carloads of cabbage shipped over the defendant’s line of railroad from Cambria, Wisconsin, to “Morgan street team tracks, Chicago, Illinois.” As the issues in the three actions were the same, the cases were, by agreement, consolidated and tried as one suit. The court made a finding in favor of the defendant and entered judgment thereon, and the plaintiffs have sued out this writ of error.

The three cars of cabbage in question were shipped by T. H. Cochrane & Co. in the latter part of October, 1912, from Cambria, Wisconsin, and were consigned to the order of T. H. Cochrane & Co. The destination named in the three bills of lading was “Morgan street team tracks, Chicago, Illinois.” The defondant transported the cars to Chicago, Illinois, and placed them on a “holding and inspection track” on its line at Western avenue in said city. This track is about two and one-half miles from “Morgan street team tracks,” which is also on defendant’s lines, and. in said city. The plaintiffs purchased the cabbage from T. H. Cochrane & Co., and they received from them the said bills of lading duly indorsed. About November 1, 1912, Mr. Scovern, one of the plaintiffs, telephoned to Mr. Jones, the reconsigning clerk of the defendant, stationed at the Western avenue “holding and inspection tracks,” that his firm had purchased the three carloads of cabbage in question and that it held the bills of lading for the same; that he understood that the cars were then standing on the tracks at Western avenue, or were to be placed there by the defendant; that he wished the railroad company to place the cars on the Morgan street team tracks, the place they were billed to, at once. The clerk replied that the names of the plaintiffs did not appear. on the railroad billing as consignor or consignee of the cabbage, and that the railroad company would not place the cars on the Morgan street team tracks until the plaintiffs brought over to his office the bills of lading. Mr. Scovern refused to bring over to the said office the bills of lading, and insisted that the cars must be delivered to the destination named in the bills of lading. The plaintiffs also made several verbal requests to the same effect, and on each occasion received practically the same answer from the railroad company. About November 2nd, the plaintiffs sent a letter to the agent of the railroad company refusing to accept the cars at Western avenue, and asking that they be placed on the Morgan street team tracks.' On the trial of the case, over the objection of the plaintiff, the defendant was allowed to- prove that the Morgan street team tracks were situated in the heart of a busy wholesale district on the west side of the city of Chicago; that it had limited trackage facilities, and was capable of holding only one hundred or one hundred and ten cars; that the railroad company used it for the placement of cars, the contents of which were to be unloaded as quickly as possible; that the defendant had provided holding tracks at Western avenue in the city of Chicago, where cars might be inspected, and either reconsigned or diverted to other places, or ordered down to the Morgan street team tracks for immediate unloading; that the plaintiff and other dealers in cabbage in Chicago were familiar with the character of the track and- the use to which the defendant put it; that the railroad company, for the purpose of preserving the character of the Morgan street team tracks, and to prevent them from becoming holding tracks, made the following rules:

‘ ‘ Chicago, Milwaukee & St. Paul Railway,
Local Freight Office.
Chicago, Nov. 2nd, 1911.
Chicago, Illinois.
Gentlemen:
On and after Thursday, November 9, 1911, all carloads of potatoes and cabbage will be held on Track #7, Yard #1, Western Avenue Yard, corner Grand and California Avenues, for inspection, ordering and diverting.
No cars of potatoes or cabbage will be brought to Yard #2 (Morgan Street Team Track), except for unloading purposes.
It will, therefore, be necessary for you to arrange in accordance with the above.
Please acknowledge receipt of this letter, and oblige,
Yours truly,
Agent.”
“Chicago, Milwaukee & St. Paul Railway,
Sept. 23rd, 1912.
To All Concerned:—
Commencing and including Wednesday, September 25th, 1912, all carloads of potatoes and cabbage will be held at Track #1, Yard #1, Western Avenue Station, for Inspection, Ordering and Diverting.
N. W. Pierce, Agent.”

The defendant was further allowed to prove, over the objection of the plaintiff’s, that the plaintiffs, and others engaged in the sale of cabbage in the city of Chicago, were familiar with the said rules.

After the cars had remained at the Western avenue “holding and inspection tracks” for some time, notice, as provided by the statutes of Illinois relating to the sale of unclaimed perishable property, was given to the plaintiffs by the defendant, and shortly thereafter the contents of the cars were sold at public auction by the defendant. The cabbage was then in a damaged condition and the sale netted but a few dollars.

The plaintiff contends: (1) That the bills of lading expressly designate Morgan street team tracks as the destination of the cars, and that the defendant did not'complete its contract of carriage by delivering the cars at the Western avenue “holding and inspection tracks”; that the railroad company, under the terms of its contract, had no right to make that place the place of delivery of the cars; and that it was error for the trial court to allow the defendant to make proof of the rules and customs of the company, ■ heretofore referred to, for the reason that the said rules and customs could not override the express agreement of the parties; (2) that the defendant had no right to demand, as a condition precedent to the placement of the cars on the Morgan street team tracks, that the plaintiffs produce their bills of lading at the Western avenue “holding and inspection tracks,” and that the plaintiffs were not obliged to present the bills to the railroad company until it had completed its contract and transported the cars to the destination named in the bills of lading.

The defendant contends: (1) That while the destination named in the bills of lading is Morgan street team tracks, Chicago, Illinois, each of the said bills also contains the provision that the railway company is to carry the car “to its usual place of delivery at said destination,” and that the usual place of delivery for cars billed to Morgan street team tracks, Chicago, Illinois, as shown by the evidence in the case, is the Western avenue “holding and inspection tracks”; that the defendant, for the purpose of explaining the terms of the contract, had the right to show, by parol evidence, that the “usual place of delivery at said destination” is the Western avenue “holding and inspection tracks.” (2) The railway company never refused at any time to place the cars on the Morgan street team tracks for the lawful holder of the bills of lading; it was ready and willing at all times to make the placement on the said tracks as soon as the lawful holder of the bills of lading presented the same to the reconsigning clerk at the Western avenue “holding and inspection tracks”; that the said requirement was a reasonable one and the defendant had the right to make it a condition precedent to the placement of the cars on the Morgan street team tracks.

In support of its claim that the Western avenue “holding and inspection tracks” is the usual place of delivery intended by the contract of the parties in this case, the defendant relies on the provision in each bill of lading that the railway company is to carry the car “to its usual place of delivery at said destination.” It contends that by rules and custom, well known to all shippers, this place is the delivery place for all cars of cabbage consigned to Morgan street team tracks, and that it is the place of delivery contracted for by the parties to the bills of lading in question, as evidenced by the said provision just quoted. The said provision is plain and unambiguous. It does not change the destination specifically named in such bill. It was intended to protect the railway company from being required to deliver the cars at a place at the destination other than its usual place of delivery. The defendant carried the cars to the Western avenue “holding and inspection tracks,” located about two and one-half miles from the destination named in the bills of lading. It is clear that the contention of the defendant, that the Western avenue “holding and inspection tracks” is the delivery place intended in the bills of lading, cannot be sustained. The cars had not reached their destination at that place, and the railway company, to complete its contract of carriage (as it admits in its brief), was obliged to transport the cars to the destination named in the bills—the Morgan street team tracks. As the cars, when they reached the Western avenue “holding and" inspection tracks,” had not reached their destination, the railway company, over the objection of the plaintiffs, had no right to make that place the place of delivery, and the plaintiffs had the right to insist that the cars be carried to the usual place of delivery at the Morgan street team tracks. The contracts between the parties clearly specify that the place of delivery shall be at the destination named in the bills of lading, and it was error for the trial court to admit the evidence offered by the defendant, tending to prove that the Western avenue “holding and inspection tracks” (tracks not located at the specified destination) were, by rule and custom, the delivery place for the Morgan street team tracks. The law regarding the showing of a custom or usage, for the purpose of showing the intention of the parties to a contract, is very clearly stated in the case of Dixon v. Dunham, 14 Ill. 324, 326. In that case the court said: “No usage or custom can be admitted to vary or control the express terms of a contract, but they may be admitted to determine that, which by the contract is left undetermined. The parties, by their contract, may abrogate any custom, no matter how ancient or uniform, but such custom cannot abrogate the terms of a contract. Whenever there is a conflict, the contract must control.”

The defendant had no right to demand, as a condition precedent to the placement of the cars on the Morgan street team tracks, that the plaintiffs present their bills of lading to the reconsigning clerk at the Western avenne “holding and inspection tracks, ’ ’ as the contract of carriage, at the time of the demand, had not been completed. When the plaintiffs sought the possession of the goods at the proper place of delivery, the defendant would then, of course, have a right to demand that the plaintiffs present the bills of lading for the cars before the company parted with the possession of the contents of the same. The defendant strenuously argues that the necessities of trade compelled the defendant to use the Morgan street team tracks only as a place for immediate delivery; that the capacity of the same is limited, and that it would be a great hardship to the defendant and to the shippers of perishable goods, like cabbage, if the company is not allowed to preserve the character of the place by reasonable rules. Such an argument cannot avail against the plain language of the contract in this case. If the company desires to give a certain character to the destination in question in this case, it is well able to do so through the medium of its bills of lading.

It follows from what we have said that the defendant did not complete its contract of carriage by delivering the cars at Western avenue “holding and inspection tracks,” and the refusal of the plaintiffs to produce their bills of lading at that place did not affect the liability of the defendant for its failure to complete its contract. For the reasons heretofore given by us in this opinion, we hold that the trial court erred in finding the issues for the defendant. The judgment of the Municipal Court of Chicago will be reversed and the cause remanded.

Reversed and remanded.


text:
    Watson Fireproof Window Company, Defendant in Error, v. E. A. Rysdon, trading as E. A. Rysdon and Company, Plaintiff in Error.
    Gen. No. 19,594.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action of the fourth class in the Municipal Court of Chicago by Watson Fireproof Window Company against E. A. Rysdon, trading as E. A. Rysdon and Company, to recover $262.46 alleged to be a balance of mi-mmum royalties due under a written contract. The cause was heard by the court without a jury and the issues were found for the plaintiff. To reverse a judgment entered on the finding for the amount of plaintiff’s claim, defendant prosecutes a writ of error.
    It appeared that the plaintiff, a New York corporation, was the owner of letters patent from the United States Government for an improvement in fireproof windows, and that it entered into a written “license contract” with the defendant, dated September 1, 1910. The contract was signed at Chicago, Illinois, and was in substance as follows: Licensor grants to licensee shoprights to manufacture at his factory and elsewhere, windows embodying the invention of said letters patent and the right to sell the same throughout the- United States and territories; licensee agrees to keep books of account of each window made and sold and that such books may be inspected by licensor; agrees to make bimonthly reports and pay royalties; agrees to pay two cents per square foot of window area upon each window made and sold; acknowledges the validity of said letters patent; agrees that he will not make or sell any windows resembling said patented window nor place the same in unfair competítion with the licensed window; agrees to pay as a minimum royalty $300 per year, payable bimonthly; the agreement contemplated the vigorous assertion of said patent against infringers, to the end that the licensee would be protected and the licensor agreed that it would institute all necessary suits and prosecute the same to conclusion, etc.
    Abstract of the Decision.
    1. Corporations, § 710

      —what does not constitute doing business in violation of Foreign Corporation Act. A foreign corporation by entering into a single written contract signed in the city of Chicago whereby it granted to the licensee the right to manufacture at his factory and elsewhere certain fire windows embodying an invention owned by the corporation, and also granted the right to sell the same throughout the United States and territories, the corporation to be paid royalties and a certain sum per square foot of the area of each window sold, held not to constitute doing business in this State in violation of the Foreign Corporation Act of 1905, J. & A. ¶ 2531.

      Defendant urged as ground for reversal: (a).That the plaintiff, at the time the said contract was executed, was a foreign corporation, doing, business in this State, without having complied with the statute of this State requiring foreign corporations to obtain a license before doing business in this State, and as a consequence thereof, said contract was void and no action can be maintained thereon; (b) that the plaintiff did not make out a case against the defendant, even if the contract were a valid one, since- it failed to prove that the defendant was making the patent device in question; (c) that, even if the contract were a valid one, the plaintiff ought not to recover under said contract, for the reason that it breached the contract first, in that it did not protect the defendant against infringers, and permitted several firms to make its alleged patent device without interference or prosecution by suits against them; that when it did sue certain infringers it failed to prosecute such suits to a conclusion. The last two contentions were held to be without merit without discussing the evidence.
    J. H. Perkinson, for plaintiff in error.
    Bell & Cross, for defendant in error; Delbert A. Clithero, of counsel.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Corporations, § 710 —effect of single act of lousiness as violation of Foreign Corporation Act. The doing of a single act of business in this State does not constitute a violation of the Foreign Corporation Act of 1905, requiring foreign corporations to obtain a license in this State.


text:
    John F. Devine, Administrator, Appellee, v. L. Fish Furniture Company, Appellant.
    Gen. No. 19,618.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Banford T. Sinclair, deceased, against L. Fish Furniture Company, Katharine McCormick, Eleanor Patterson, Joseph Medill Patterson and Robert Rutherford McCormick to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendants in not maintaining sufficient and reasonable means of escape in case of fire from a building occupied by L. Fish Furniture Company under a lease from the other defendants as trustees. The jury returned a verdict finding the L. Fish Furniture Company guilty and the other defendants not guilty and a judgment for eighty-five hundred dollars, the amount of the verdict, was entered against the Furniture Company. To reverse the judgment, the latter appeals.

      Abstract of the Decision.
    1. Master and servant, § 795

      —when instruction as to liability under Factory Act may be refused. In an action to recover for the death of an employee hy fire in defendant’s building alleged to have resulted from failure of defendant to provide means of egress as required by section 14 of the Factory Act, Hurd’s R. S. 1912, ch. 48, p. 1131, J. & A. ¶ 5404, refusal of court to instruct the jury that defendant was not liable unless it had been notified by the Chief State Factory Inspector or his deputy that the means of egress were insufficient and unreasonable, and had specified the necessary changes, held not error.
    2. Master and servant, § 801

      —when instruction not in language of Factory Act not erroneous. In an action for the death of an employee based on a violation of section 14 of the Factory Act, J. & A. ¶ 5404, an instruction giving the legal effect of the statute instead of using the exact language of the statute, held not erroneous.

      The plaintiff’s intestate was employed in the office on the sixth floor of the appellant’s mercantile establishment and was killed by a fire that occurred in said premises on March 25, 1910. Fourteen persons were working on the sixth floor at the time the fire broke out, and eleven of them were killed. A number of suits were started against appellant as a result of the fire. One of them was decided by the Appellate Court in Hunt v. L. Fish Furniture Co., 187 Ill. App. 326. The statement of the court in the present case refers to the statement of facts in that case as serving the same office for the opinion in this case, so far as the evidence is concerned, on account of there being an agreement between counsel that the evidence in that case is substantially the same as in the case at bar. As the declarations in the two eases are not the same, that part of the said statement referring to the declaration may be disregarded.
    Miller, Gorham & Wales, for appellant.
    James L. Bynum and Charles C. Spencer, for appellee; Bernhardt Frank, of counsel.

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

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

3. Instructions, § 38 —when may not he given in language of statute. A court in instructing a jury as to a statute is not compelled to quote the statute verbatim, hut may instruct the jury as to the legal effect of the same; and in cases where there is anything in the language of the statute calculated to mislead the jury as to the law, the latter method is to be preferred.

4. Master and servant, § 801 —when instruction as to what constitutes compliance with Factory Act correct. An instruction telling the jury that the duty of the defendant under section 14 of the Factory Act, J. & A. ¶ 5404, is not fulfilled by providing any number of means of egress, if they believe from the evidence that the means of escape provided are not sufficient and reasonable means of escape in case of fire, held to correctly state the law.

■ 5. Master and servant, § 801 —when instruction on duty of employer to provide means of escape in case of fire not erroneous. An instruction quoting section 14 of the Factory Act verbatim and then stating, “and by reason of such statute, it then and there became the duty of said defendants and all of them to provide such building with reasonable and sufficient means of escape in case of fire,” held not erroneous for the reason that it did not add to the latter part of the instruction the statutory words, "by more than one means of egress.”

6. Master and servant, § 777 —when requested instruction properly refused as misleading. A requested instruction to the effect that the employer is not an insurer of the safety of the deceased employee, held properly refused as calculated to confuse and mislead the jury where plaintiff did not contend that defendant was liable as an insurer.

7. Master and servant, § 801 —when requested instruction properly refused. In an action for the death of an employee based on a violation of section 14 of the Factory Act, J. & A. ¶ 5404, an instruction offered by defendant, which told the jury as a matter of law that if they found from the evidence that the defendant had at the time of the fire provided the building with sufficient and reasonable means of escape in case of fire by more than one means of egress, and that such means of escape were at the time of the fire plainly marked and free from any obstruction interfering with access thereto, then the said defendant cannot be held liable because the fire originated in the part of the building where such means of, escape were located and thus cut off access to such means of escape, but in that event they must find the defendant not guilty, held properly refused for the reason it was misleading and argumentative, and that it assumed that the means of escape were cut off to the employee by the fire and not by alleged obstructions; and held that it was erroneous also for the reason that it called upon the court to hold that the statute was complied with if more than one means of egress were provided for, and such means of escape were plainly marked and free from any obstruction.

8. Appeal and error, § 1463 —when refusal to exelude testimony harmless. Refusal of court to strike out testimony of a witness and refusal to instruct the jury to disregard the same on the ground of its incompetency, held not prejudicial where the admission of the testimony could not have harmed the complaining party.


text:
    Alice G. Roherty, Administratrix, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 19,628.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Alice G. Roherty, administratrix de bonis non of the estate of Hugh D. Roherty, deceased, against Chicago Eailways Company to recover damages for wrongfully causing the death of plaintiff’s intestate. The death of the deceased was claimed to have resulted from one of defendant’s cars running into a wagon in which he was riding at the time he was crossing the tracks of defendant at a street intersection. A trial was had before the court and a jury and a verdict was returned in favor of defendant. To reverse the judgment entered on the verdict, plaintiff prosecutes a writ of error.
    George H. Mason, for plaintiff in error.,
    Philip Rosenthal and Alfred B. Davis, for defendant in error; John R. Guilliams and Frank L. Kriete, of counsel.

      Abstract of the Decision.
    1. Trial, § 130

       when remarks of counsel improper and prejudicial. Where, on cross-examination of one of defendant’s witnesses, plaintiff’s counsel brought out the fact that he had talked with the witness in the corridor of the court, and that the witness after being informed that counsel represented plaintiff refused to tell him what he knew about the facts of the case, and defendant’s counsel in his argument to the jury persisted, after objections sustained thereto, in arguing that the purpose of counsel for plaintiff in talking with the witness was to induce him to change his testimony, held that the remarks of counsel were highly improper as the evidence did not sustain the charge made against plaintiff's counsel, and held that the remarks were prejudicial.
    2. Trial, § 47

      —when remarks of court prejudicial. A remark of the trial judge intimating that counsel for plaintiff was wasting time in asking a certain question of defendant’s witness on cross-examination, and after exception taken to the remark, a further remark to plaintiff’s counsel that at the conclusion of the trial he would expect counsel to wait until he had an opportunity to discuss further the matters of his objection, held prejudicial as tending to unduly disparage plaintiff’s counsel in the eyes of the jury, it appearing that the question asked on cross-examination was proper, and that the jury would have understood from the language used by the court, that plaintiff’s counsel was not only wasting time but that he was disrespectful in his conduct towards the court, and that the court was intimating that he would punish him for contempt at the conclusion of the trial.
    3. Witnesses, § 283

      —when permitting improper cross-examination prejudicial. In an action for wrongful death, permitting counsel for defendant to ask questions of one of plaintiff’s witnesses on cross-examination for the purpose of showing that the witness, a married man, was living with a woman other than his wife in a state of adultery, held prejudicial error.

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

   Mr. Justice Scanlan

delivered the' opinion of the court.


text:
    The People of the State of Illinois ex rel. Winifred E. White, Defendant in Error, v. Marion H. Culver and Morton T. Culver, Plaintiffs in Error.
    Gen. No. 19,642.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Infants, § 4

      —right of parent to custody of child. The right of parents to the custody of a child is not an absolute one that is accorded to them under any and all circumstances; it may be taken away for good and sufficient cause by the paramount right of the State to insist that the safety, morals, health or happiness of the child be not endangered.
    2. Infants, § 4

      —when evidence insufficient to sustain finding as to custody of child. In a habeas corpus proceeding by the mother for the custody of her child, a finding that she was legally entitled to its custody held not warranted by the evidence, in view of the testimony as to the fitness of the mother, which showed she did not possess the essential moral character required.
    Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Petition by Winifred E. White in the name of the People of the State of Illinois against Marion H. Culver and Morton T. Culver for a writ of habeas corpus to obtain the possession and custody of Dorothy Vera White, a young child, the daughter of relatrix. The court found the issues in favor of the relatrix and ordered the respondents to deliver the child to her in open court. From a judgment entered on the findings, respondents prosecute a writ of error.
    Culver, Byron & Culver, for plaintiffs in error.
    Winifred E. White, pro se.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Logan Square Motor Club, Plaintiff in Error.
    Gen. No. 19,702.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Rehearing denied October 20, 1914.
    Statement of the Case.
    Proceeding brought by the City of Chicago against the Logan Square Motor Club for operating and maintaining a garage without a license in violation of section 2684 of the Municipal Code of Chicago of 1911. Sections 2683, 2684 and 2695 of said Code, are as follows:
    “Section 2683. The word ‘garage’ as used in this article shall be held to mean, and is hereby defined as meaning, any barn, stable, building or other place within the city where automobiles, auto cars or any similar self-propelled vehicles are kept "or let for hire or reward to any person, whether such vehicle be so hired out or let with or without an operator for same, or where such vehicles are kept ready for use and where rent is paid to the keeper thereof for such keeping.”
    “Section 2684. No person, firm or corporation shall keep, conduct or operate a garage in this city without first obtaining a license so to do in the manner hereinafter provided, and it shall not be lawful for any person, firm or corporation to locate, build, construct or maintain any garage within two hundred feet of any building used as and for a hospital, church, or public or parochial school, or the grounds thereof, nor shall any person, firm or corporation locate, build, construct or maintain any garage in the city in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such street in any such block, without the written consent of a majority of the property owners according to frontage on both sides of the street.

      “Such written consent shall be obtained and filed with the commissioner of buildings before a permit is issued for the construction of any such building; provided, that in determining whether two-thirds of the buildings on both sides of such street are used exclusively for residence purposes, any building fronting upon another street and located upon a corner lot shall not be considered; and provided, further, that the word 'block/ as used in this section, shall not be held to mean a square, but shall be held to embrace only that part of the street in question which lies between the two nearest intersecting streets, one on either side of the lot on which said garage is to be located, built, constructed or maintained.”
    “Section 2695. ' Any person violating any of the provisions of this article, where the penalty is not otherwise herein provided for, shall be fined not less than five dollars nor more than one hundred dollars for each offense, and his license shall be subject to revocation by the mayor.”
    The case was tried by the court without a jury. The defendant in error was found guilty of a violation of the ordinance and a fine of fifty dollars was assessed. To reverse a judgment entered on the finding, defendant prosecutes a writ of error.
    The facts showed that the defendant was organized as a corporation not for profit, the purposes of the corporation being “to organize and maintain a social club for the encouragement of motoring and for the mutual benefit thereof, to own, run and maintain a clubhouse and garage to be enjoyed by the members of the club,” and that certain persons were made officers of the corporation. A few months prior to the incorporation of the defendant, the Logan Square Motor Car Company, a corporation for profit, was incorporated with the same officers. Both of the corporations occupied. the same premises, which were owned by the wife of the vice-president of the defendant. The garage building occupied two lots and had a large entrance. The defendant corporation occupied the front part of the building except a small space which it allowed the Logan Square Motor Car Company to use in its business. The rear of the building was occupied by the latter corporation as repair rooms for cars. The defendant had no clubhouse or club-quarters except the premises in question. In order to become a member of the club a person signed an application card agreeing to pay. the club fifteen dollars per month as dues. He then had the right to immediately put his car in the garage whether it was a pleasure car or a business truck. It also appeared that no application for membership had been rejected and no investigation ever made of any applicant; that the only social affair given was a motor run that was participated in by four persons who were interested in the Logan Square Motor Company, and that the only privilege enjoyed by a member was the right to keep his car in the club garage.
    Defendant contended that it was not a business organization conducting an establishment sought to be reached by the ordinance, but that it was a social organization of citizens, and that a license was only required for a public garage in the nature of a public livery stable. The plaintiff contended that the defendant was organized and maintained as a subterfuge to permit the operation of the garage without a license; and that even if it is conceded to be a bona fide club it is required to procure a license to maintain its garage.
    William H. Sexton and James S. McInerney, for defendant in error; Richard E. Kropp and Albert J. W. Appell, of counsel.
    Brundage, Landon & Holt, for plaintiff in error; Robert N. Holt, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Automobiles and garages, § 5 —what constitutes garage within meaning of ordinance requiring a license. A motor club. organized as a corporation not for profit, to own, run and maintain a clubhouse and garage to be enjoyed by members of the club, held under the facts of the case to be maintaining a garage within the meaning of a city ordinance requiring a garage license.


author: Mr. Presiding Justice Brown

text:
    Morris Goldstein, Defendant in Error, v. Israel Muller, Plaintiff in Error.
    Gen. No. 18,313.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus P. Robinson, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Morris Goldstein against Israel Muller to recover $259. A part of said sum was alleged to be due plaintiff as an overpayment on a contract for work and materials furnished by defendant; another part was claimed to be a balance due for carpenter work done by plaintiff for defendant under another contract; and the balance was claimed to be due for other work and materials furnished to defendant by plaintiff. Defendant claimed he was not liable for anything set forth in plaintiff’s statement of claim, and filed a counterclaim for the amount of $300. The cause was tried by the court without a jury and plaintiff had judgment for $188. To reverse the judgment, defendant prosecutes a writ of error.
    Blum & Blum, for plaintiff in error.
    Kaplan & Kaplan, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 1488*—when admission of incompetent evidence not cause for reversal. In a case tried by the court without a jury, the admission of incompetent evidence is not sufficient cause for reversal, since the court will be presumed to have formed his conclusion upon the competent evidence only.
    2. Evidence, § 476*—determination of preponderance. In determining the preponderance of the evidence, there is no hard and fast rule which forbids a trial court from believing one witness rather than two others that contradict him; it all depends on the circumstances, the witnesses and the nature of the testimony.
   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Grace B. Guggenheim, Appellant, v. William Guggenheim, Appellee.
    Gen. No. 19,316.
    1. Divorce, § 67

      —when lack of prescribed residence of complainant will not justify vacation of decree. Where.a divorce is granted by a court having general jurisdiction of the "subject of divorce, in a jurisdiction where a bona fide residence of the complainant is a prerequisite to the right to a decree or to any correct action by the court with respect thereto; and the complainant’s bill alleges such residence, and the court finds as a fact that it exists, a court of equity is not justified, in either a direct or a collateral proceeding, in vacating such decree of divorce at the suit of such complainant, who participated in fraudulently procuring such erroneous finding, after the lapse of a long interval, during which such complainant acted on the assumption of the validity of such decree and the other divorced spouse married an innocent party, there having been issue of such marriage.
    2. Judgment, § 306

      —when judgment or decree will not be vacated, in equity. Where the record discloses jurisdiction of both the parties and the subject-matter, a bill to vacate a judgment or a decree is subject to all the usual rules as to equitable limitation and equitable estoppel, and want of clean hands, laches, estoppel and the intervening rights of third parties may defeat the bill.

      Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Charles J. Trainor, for appellant; John J. Lordan, of counsel.
    Newman, Levinson, Becker & Cleveland, for appellee ; S. S. Gregory, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

That which the court below was asked in this case to do was to vacate a decree of divorce obtained by a fraud on the court granting it, perpetrated with the •knowledge and active participation of the person now seeking the vacation. This request to set aside a decree obtained on the demand of the present suitor was made more than eight years after the decree was rendered, during which eight years no new fact had come to her knowledge, bettering her case for disturbing the decree, but during which she herself had married again and again been separated from a husband (the third, the defendant In this case being the second from whom she had been divorced after her marriage), and during which the defendant has also married a wife with whom he is now living and by whom he has a child. And the evidence would certainly lead one to suspect that this request is made because the wealth of the defendant, in the opinion of the suitor, renders it proper that she should receive more than the $150,-000 of alimony which she accepted after the supposed fraudulent divorce had been obtained.

It seems to us that it can hardly be seriously contended that the complainant comes into court in this case with clean hands, or that she is not seeking relief from the results of her own wrongful act, or that she has not been guilty of laches, or that many of the elements of equitable estoppel, which in an ordinary suit in equity would prevent relief upon her present bill, are not present.

It may be said, however, that as this is a divorce proceeding it stands upon a different ground from an ordinary equitable action, in that there is a public interest against the allowance and the effectiveness of collusive and fraudulent divorces. Undoubtedly there is such a public interest, but we fail to see how it could be advanced in circumstances like this by inflicting, at the request of this complainant, irreparable wrong on innocent third persons.

The considerations that we have named seem to us amply sufficient to determine this matter, unless the complainant has established to our satisfaction the position on which she primarily relies, that the decree of divorce by virtue of the fraud put on the court, in relation to her residence in Illinois at the time she brought the bill for a divorce, as going to the jurisdiction of the action, rendered the decree not merely voidable but void, so that no other decision than that asked by her, that it should so be -declared, is legally possible. This she has not done. It would be needless to elaborate and distinguish the many and diverse statements to be found in the books concerning the nullity and utter invalidity of a decree obtained when jurisdiction of the parties and jurisdiction of the subject-matter are not combined in the court entering it. For the one party to this litigation an attempt to justify our view would be doubtless ineffective; for the other useless. We prefer simply to state our conclusion strictly within the narrow limits required in the present case and to cite a few of the many cases which we think are .in general accord with our position. It is this: Where in a divorce suit the court assuming to grant the divorce has general jurisdiction of the subject of divorce, hut by the statutory law bona fide residence of the complaining party in the jurisdiction is one requisite for the right to the divorce, or to any correct action of the court thereon, and where a bill brought for a divorce contains an allegation of such residence by the complaining party, and the court finds as a fact that it exists, then in neither a direct nor collateral proceeding attacking that decree as void, is a court of equity obliged or justified in so declaring it, or in vacating or setting it aside, at the instance of a complaining party, who has secured or participated in the false finding as to residence, after a long-interval of time has elapsed, in which interval that party has him or herself deliberately acted on the assumption that the decree is valid and contracted another marriage; and in which interval the other party has contracted marital relations with an innocent party and there has been issue of such marriage.

This is all that this case demands in the way of an opinion. We limit our decision to it, and the statement of a broader principle or doctrine of the law may be dispensed with; but we will note that we think it but a particular example of that which we deem to be the doctrine of the Supreme Court of Illinois—that where the record on its face purports to show jurisdiction of the parties and of the subject-matter, a bill to vacate a judgment or decree is subject to all the rules of equitable limitation and equitable estoppel which attend the usual practice in equity, and want of clean hands, laches, estoppel, or the supervening or intervening rights of third parties may defeat the bill.

In line with the conclusion that we have reached on the law, we may cite as in point in one or another aspect of the case, as we believe: Mooney v. Valentynovicz, 255 Ill. 118; Mohler v. Shank’s Estate, 93 Iowa 273; Nichols v. Nichols, 25 N. J. Eq. 60; Yorston v. Yorston, 32 N. J. Eq. 495-506; Singer v. Singer, 41 Barbour (N. Y.), 139; Edson v. Edson, 108 Mass. 590; Sloan v. Sloan, 102 Ill. 581; Whittaker v. Whittaker, 151 Ill. 266; Maher v. Title Guarantee & Trust Co., 95 Ill. App. 365; In re Ellis’ Estate, 55 Minn. 401; Hurley v. Hurley, 117 Iowa 621; Elliott v. Wohlfrom, 55 Cal. 384; Bledsoe v. Seaman, 77 Kan. 679; Webster v. Webster, 54 Iowa 153; In re Morrisson, 52 Hun (N. Y.) 102; Karren v. Karren, 25 Utah 87; Hubbard v. Hubbard, 19 Colo. 13; Arthur v. Israel, 15 Colo. 147; Turpin v. Turpin (Tenn.), 58 S. W. Rep. 763; McNeil v. McNeil, 78 Fed. 834.

We are not unmindful that our view of the facts is not that presented by the arguments for the appellant. We have formed it for ourselves from the record before us. No possible good purpose would be served by a discussion here of the unsavory details of this scandalous proceeding. The court below, as shown by its rulings, first on the pleadings and then on the evidence offered and the plea adjudged good, held that the participation of the complainant in the alleged fraud and the marriage and issue of the defendant since the decree attacked were a good defense—that is, that the combination of the doctrines concerning clean hands, of estoppel and of the intervening rights, and interests of innocent third parties, made, under the evidence, a complete and effective defense to the bill. With this we agree, and it renders unnecessary, in our opinion, the discussion of technical questions of equity pleading and the cross-errors assigned by the defendant.

The decree of the Circuit Court dismissing the bill is affirmed.

Affirmed.


text:
    Grace B. Guggenheim, Plaintiff in Error, v. William Guggenheim, Defendant in Error.
    Gen. No. 17,147.
    Divorce, § 59a

      —when court without jurisdiction to vacate. Where a decree of divorce is final, not void on its face but regular and valid, the court has no jurisdiction to vacate or set it aside after the term at which it was entered.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed October 13, 1914.
    Charles J. Trainor, for plaintiff in error; John J. Lordan, of counsel.
    Jacob Newman and Chester E. Cleveland, Amici Curiae.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is sued out to reverse an order of the Circuit Court of Cook county entered December 17, 1909, denying the motion of the plaintiff in error, made on that date, for leave to file a certain petition (theretofore on November 19, 1909, first tendered and exhibited to the court) of Grace B. Guggenheim, praying that an order might be entered in a cause entitled Grace B. Guggenheim v. William Guggenheim, begun by the said petitioner as complainant in the Circuit Court of Cook county February 16, 1901, for a divorce, revoking the decree of divorce entered in said cause on March 20, 1901, declaring it to be a nullity and expunging it from the records of the court.

If we felt ourselves at liberty to enter into the merits of the cause or thought that the court below should have done so, reference to the matters recited in the opinion filed contemporaneously with this in the appeal of Grace B. Guggenheim v. William Guggenheim, number 19,316 in this court, ante, p. 146, would be necessary. They are not, however, material in this cause. The decree of divorce of February 16, 1901, was a final decree. It was not void on its face, but regular and valid, and the Circuit Court had no jurisdiction to vacate or set it aside after the expiration of the term at which it was entered. The court had lost jurisdiction of the case.

In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, the court said in a case where fraud in the procurement of a decree was alleged: “The proper method of impeaching and setting aside a decree after the term is to file an original bill in the nature of a bill of review, when such decree may be set aside, reversed or modified, according to the equities of the parties.” This is the course the plaintiff in error here subsequently followed, but in which, she was defeated on general principles of equity jurisprudence. Guggenheim v. Guggenheim, No. 19,316, in this court, ante, p. 146, in Goucher v. Patterson, 94 Ill. 525, the Supreme Court said of an attempt to show of a judgment of record that it was not even rendered by a court: “After the adjournment of a term at which a judgment is rendered, its absolute verity cannot be overcome or even attacked by affidavit. * * * So far as it is shown by the record, a regular trial was had before the Circuit Court and a judgment in all respects formal rendered by the court. A judgment rendered in this manner cannot be impeached by ex parte affidavits presented in support of a motion to vacate, entered long after the term 'has closed at which the judgment was rendered.”

In the present case the petition, which was sworn to and accompanied with certain affidavits of other persons as to the residence of the petitioner in February and March, 1901, was first presented to the court after more than one hundred terms of the Circuit Court of Cook county had passed since the entry of the divorce decree.

The order of the Circuit Court is affirmed.

Affirmed.


text:
    Charles W. Alcock, Appellee, v. Joseph R. Alcock, Appellant.
    Gen. No. 19,348.
    Contracts, § 216

      —agreement not to associate with another in business construed. In construing an agreement by a person not to “go into or associate with any one in the plumbing business in Chicago” within a certain period, held that the words “or associate with any one in the plumbing business” covered employment of such person as a foreman in a competing establishment.
    Baker, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Certiorari allowed by Supreme Court.
    A. G. Dicus, for appellant.
    Paul Larmer and C. E. Heckler, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The complainant and defendant in this case are cousins. They were connected in business prior to November 27, 1909, as stockholders of a corporation called the Alcock Plumbing Company. They would seem both to be plumbers. At all events they conducted the business of the corporation together. The complainant, Charles W. Alcock, was president of the company and looked mostly after the work “on the outside,” he says. Joseph R. Alcock was the “inside man,” “looking after the secretary work” and “estimating.” He was also treasurer and kept the books.

On November 27, 1909, they came to an amicable agreement, which was reduced to writing, by which Charles W. Alcock purchased Joseph R. Alcock’s interest in the company for $3,500. It was made in writing a part of the agreement:

• “That Joseph R. Alcock will not go into or associate with any one in the plumbing business in Chicago within five years from this date. ’ ’

After this contract was executed and the money was paid to Joseph R. Alcock he went to California. In December, 1911, he returned to Chicago and shortly afterwards became, at a salary of thirty dollars a week, an employee of one C. H. Law, who was carrying on a plumbing business in Chicago.

The master, to whom the cause'was referred by the court below, finds in accordance with the evidence, which seems to us practically uncontradicted, that as such employee or foreman he exercises a superintendence over plumbing jobs undertaken by Law, makes estimates, consults customers and calls on architects for him, “and in the absence of said C. H. Law from the city of Chicago exercises a general superintendency of the business except as to important matters which are deferred until the return of C. H. Law to the city of Chicago.”

The master also finds from evidence which is categorically contradicted by Joseph R. Alcock, that said Joseph R. Alcock has solicited business for Law from a former customer of the Alcock Plumbing Company. This last conclusion of the master is vigorously contested by the appellant, but does not seem to us material.

The following conclusion of the master, recited in his report, is without contradiction:

“The defendant has no interest in said plumbing business of said C. H. Law other than his salary of $30 a week, and * * ' * he does anything that C. H. Law tells him to do in the performance of his business. ’ ’

Under these conditions the complainant, Charles W. Alcock, April 3, 1912, filed a bill in equity in the Superior Court of Cook county praying that said Joseph E. Alcock should be,

“enjoined and restrained from engaging in or entering into the plumbing business and from associating himself with any other person, firm or corporation engaged in the plumbing business in any manner or capacity whatsoever, and from performing, accepting, pursuing or doing any work, duties or employment or calling in any capacity in or about or in connection with the said plumbing business in the said city of Chicago until the 27th day of November, 1914.”

The master in chancery to whom the cause was referred, after a hearing reported with others the findings of fact which we have recited, with a recommendation that,

“the prayer of the bill should be granted and the defendant enjoined from engaging in the plumbing business within the city of Chicago for the remainder of the period of five years from November 27, 1909; that the present employment of the defendant is a violation of the terms of the contract described in the bill of complaint and should be enjoined.”

Objections taken to the master’s report and overruled by him were ordered by the court to stand as exceptions thereto. On a hearing of said exceptions they were overruled and the report confirmed. Thereupon the court decreed:

“That defendant be and he is hereby enjoined and restrained from continuing his said employment in and about the plumbing business of the said C. H. Law, and that he be and is enjoined from going into or engaging in the plumbing business and from having or exercising any business association of any kind or character as agent, solicitor, employee, superintendent or otherwise, with any one engaged in the plumbing business in the said city of Chicago until the 27th day of November, 1914.”

The defendant, Joseph E. Alcock, appealed from this decree to this court and has here assigned for error that the court below should have sustained the exceptions to the master’s report and dismissed the bill.

The question before us is simply what construction should be given to the words of the contract of November 27, 1909—“go into or associate with any one in the plumbing business in Chicago,’’ etc. It is one not free from difficulty and one in which we cannot be assisted by any citation of authorities. It is true, as suggested by appellee’s counsel in argument, that:

“The language used in a contract will be construed in the light of the situation of the parties at the time the contract was made and the object it was intended to accomplish.”

But it is also true that language in a contract like the present one will not be given an extended construction beyond its actual meaning, against the liberty of a citizen to engage in work which will give him a livelihood. The right to the enforcement in equity of such contracts in partial restraint of trade is in itself rather a limitation of the broad principle which declares it against public policy to forbid any man activity in his own calling or business. However, on consideration of that which may be said on each side of this question, the majority of the court are constrained to think that in this case the words or “associate with any one in the plumbing business” did cover employment as a foreman in a competing establishment, and that the master and chancellor were right in so holding.

Affirmed.

Mr. Justice Baker dissents.


text:
    Flack & Company, Appellant, v. Central Trust Company of Illinois, Appellee.
    Gen. No. 19,365.
    1. Banks and banking, § 115

      —sufficiency of declaration in suit for wrongful payment of check. In an action by a depositor against a bank for wrongful payment of a check which was drawn payable to third parties, the declaration held defective in stating plaintiff’s right to maintain the action.
    2. Appeal and error, § 866

      —when abstract of record insufficient. An abstract consisting of a mere index of the record is insufficient.
    3. Banks and banking, § 134

      —when evidence insufficient to show hank liable for wrongful payment of check. In an action by the drawer of a check against the bank on which it was drawn to recover the amount of the check on the ground that the bank did not pay the check to the proper payees, held that a judgment entered on a verdict for defendant would be affirmed, it not appearing by what right the plaintiff was entitled to maintain the action, and it appearing that the check went to and was paid to the persons that a representative for the plaintiff intended.
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Benjamin F. J. Odell, for appellant.
    Edwin L. Waugh, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Cook county rendered November 9, 1912, on the verdict of a jury. The judgment was in favor of the defendant below, who had been sued by the plaintiff in an action of assumpsit. The declaration contained the consolidated common counts and two special counts. General demurrers were filed to the two special counts. These demurrers were overruled by the court. Why they were overruled we confess we are unable to see. The counts both alleged that the plaintiff .made its check for $1,452 to the order of Henry F. Kath and Ernestine Kath, and that the defendant accepted the check and became liable to pay it according to its tenor and effect, and then, without alleging any indorsement by the Kaths to the plaintiff or any one else, assert that the defendant promised to pay, and is liable for, the amount of the check to the plaintiff. The second count does indeed say that the check was “the property of the plaintiff,” but does not give any reason for the Trust Company’s being liable primarily to the maker on a check which it had accepted, payable to third parties. The first count does not even assert the check to be the-property of the plaintiff.

We mention this, although the cause went on through subsequent pleadings and a jury trial to a conclusion which obviates the necessity of a consideration of questions on the pleadings, because the defect of the declaration seems to be significant of a defect in the very basis of the plaintiff’s case. It does not seem anywhere to have proven any title to the check or the proceeds of it. If the action is to be taken, so far as the common counts go, as one for money deposited by the plaintiff to its own credit with the defendant, there still would be no evidence, to support a judgment in its favor. There is no evidence of any deposit or of demand for return or of refusal. The proceedings of the plaintiff, if that was the theory, would seem to be entirely misconceived.

It would be impossible from the abstract of the record presented by the appellant, the plaintiff, to gather any idea of what the suit or the appeal is about. It does not conform to the rule in any particular, and the judgment might well, and indeed we think ought to be, affirmed on that ground alone. Why the appellant’s counsel, having made nothing but an “index” of the record for an abstract, should have taken the trouble to duplicate bis work by making an index for that index, is another thing we do not understand about the case. Having violated the rule wholly in the one matter, he might have saved himself the trouble of conforming to it in the other.

Nor do we feel very much more enlightened by the additional abstract which the appellee’s counsel has filed, nor by the none too explicit “statements of the case” by which we are supposed to be informed in the printed arguments.

But going to the record for information, as we are under no obligation to do, and perhaps should not have done, we find that the facts from which the case seems to have arisen are these:

Prior to April 27, 1908, a man named Stanage, who appears to have been a nonresident, and one Sea-graves, who lived in Chicago and was doing business under the name of Lloyd J. Long & Co. (although Long was in reality working for Seagraves in Seagraves ’ office on a salary or commission), owned a piece of land in Chicago which was subject to a $12,000 mortgage. But although they two, Stanage and Seagraves, were the real or beneficial owners each of one-half interest in this land (subject to the incumbrance described), the legal title was in one Henry F. Hath, who was, as Seagraves expresses it, “a dummy.” He. had no beneficial interest in the property. He lived in New Boston, Illinois. On the equity in this property Seagraves and Stanage wished to obtain a loan. Seagraves seems to have applied to one Odell, a lawyer, and Odell, purporting to represent the plaintiff herein, “Flack & Company, a corporation” (whose identity does not otherwise appear, except that one G. I. Odell was president and treasurer), agreed to loan them for Flack & Company $1,452, of which, however, $252, representing with expenses a commission of 20 per cent, on the amount actually to be received and retained by Stanage and Seagraves, was to be paid back to Odell at once.

The method adopted of arranging the security for the loan was suggested by Odell. A power of attorney was drawn running to Lloyd J. Long and executed by Henry F. Kath and Ernestine A. Kath, his wife, authorizing said Long “to bargain, sell and convey all of my rights, interests and title” in the land, and “giving and granting unto Lloyd J. Long, said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises.” Armed with this, Long executed May 13, 1908, in the name of Henry F. Kath and Ernestine A. Kath a quitclaim deed of the property to one Jessie A. Matthews, whose identity does not further appear than that she was designated for such grantee by Odell. At the same time Long also executed and delivered to Odell several notes of $140 each to represent and evidence the indebtedness to Flack & Company, signing them “Henry F. Kath and Ernestine A. Kath by Lloyd J. Long, their Atty. in fact.”

There were at least ten of these notes, the balance being probably represented otherwise or repaid at once in cash.

Jessie Matthews contemporaneously signed and acknowledged a contract, which Long also signed “Henry F. Kath by "Lloyd J. Long, his Atty. in fact.” By this contract Jessie Matthews undertook to reconvey the land in question (subject to the $12,000 incumbrance) to Henry F. Kath on payment of $1,452 in monthly instalments of $140.

From the recitals in one of the notes introduced in evidence it would appear that a trust deed was also made to Grace I. Odell, trustee, to secure the notes of $140, but this is not clear. Perhaps the conveyances served as a satisfactory substitute for the trust deed originally proposed. However that may be, on the complete execution of such papers as were executed to evidence the loan and security, Flack & Company’s check, signed “Flack & Company, G. I. Odell, Pres, and Treas.,” for $1,452, drawn on the Central Trust Company, was given by Mr. Odell to Long at Sea-graves’ office. It was dated May 15, 1908, and was made payable to Henry F. Kath and Ernestine A. Kath. Odell showed or directed Long how to indorse the check, Seagraves says. At all events Long did indorse the check—

“Henry F. Kath,
Ernestine A. Kath,
By Lloyd J. Long,
their attorney in fact. ’ ’

Seagraves then indorsed the' check himself and Lloyd J. Long indorsed it individually and Seagraves and Odell went to Greenebaum Sons’ Bank and Sea-graves deposited the check thus indorsed to the deposit account of “Lloyd J. Long.” It was collected by Greenebaum & Company through the clearing house in the usual course of business from the Central Trust Company, on which it was drawn. This is the check, the payment of which is claimed to be a cause of action herein by Flack & Company, because, it says that the Kaths did not receive the money on it. Why this gives an action to Flack & Company on it we have before said, we cannot see. Proceeding with the story of the transactions, after the deposit was made to Long’s account Seagraves at once drew two checks on Greenebaum Sons, signed “Lloyd J. Long, per C. I. Seagraves.” As these were promptly paid, it is evident that at Greenebaum Sons Bank Seagraves was doing business not under the name of “Lloyd J. Long & Co.,” but under the name of “Lloyd J. Long.” One of the checks was for $502.50 and was payable to the order of Greenebaum Sons. For it was obtained a draft on New York, signed Greenebaum Sons, to the order of Henry F. Kath. This draft was sent to Kath, who indorsed it “Pay to the order of W. P. Stanage, Henry F. Kath.” W. P. Stanage indorsed it and presumably obtained the money from the Citizens Central National Bank of New York, on which it was drawn. It represented his interest in the loan on the property. The other of the checks was for $252 and was to the order of Seagraves himself. It was exchanged for currency by Greenebaum Sons and .the currency given by Seagraves to Odell for his commission and expenses, in accordance with the prior arrangement.

We have no doubt that matters occurred as thus recited, despite the half-hearted denials by Kath of his indorsement of the draft and the attempt to impeach the reputation for veracity of Seagraves, who gave the account of the transactions.

Apart from the entire want of any cause of action in the plaintiff against the defendant shown by them, even if the indorsement of the Kaths by Long on the $1,452 check had been unauthorized, and the payment of it wrongful, we think that the indorsement was not unauthorized or the payment wrongful. The defendant paid the check and is not liable to anybody longer on it or for the funds on which it was drawn. Kath was, to the knowledge of the plaintiff’s authorized and sole representative, a “dummy” acting through Long. The check went to the persons and was paid to the persons that Flack & Company’s representative meant it to go to. Neither it nor he have reason to complain. They are estopped from doing so by the whole course of the transactions. The instructions were given on this theory and were not erroneous.

The judgment is affirmed. An allowance should be made in the costs for the additional abstract. It was necessary, although not satisfactory.

Affirmed.