text:
    Nelson T. Burroughs, Appellee v. William J. Selleck, Appellant.
    Gen. No. 18,436.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Nelson T. Burroughs against William J. Selleck to recover the balance of purchase money claimed to be due on a contract under seal for the sale of certain real estate. The defendant filed a counterclaim for damages alleging that plaintiff’s real estate agents made false and fraudulent representations to him as to the condition of the property. The court excluded all of defendant’s evidence, directed a verdict and gave judgment for plaintiff in the sum of $5,266.66. From the judgment,, defendant appeals.-

      Abstract of the Decision.
    1. Seáis, § 6

      —defenses in action on sealed instrument. In the absence of a statutory provision permitting such defenses, want of consideration and total failure of consideration or other such defenses, cannot be shown in an action at law for tne purpose of barring a suit on a sealed instrument. The Negotiable Instrument „Act only makes such defenses applicable to negotiable instruments.
    2. Fraud, § 38

      —when sealed contract cannot he abrogated for fraud in action at law. A contract under seal for the purchase of real estate cannot be rescindes or abrogated in an action at law for false and fraudulent representations by the vendor as to the quantity or quality of the property. Only fraud in the execution of a sealed instrument such as has induced the execution thereof of a character not intended to be executed may be pleaded and proved for the purpose of abrogating it and entirely defeating an action thereon without first resorting to a court of equity to have it declared void.
    3. Set-off and recoupment, § 18

      —when recoupment permitted in action on contract under seal. In an action to recover a balance of purchase money due under a sealed contract for the sale of real estate, a defense in the nature of a counterclaim for damages resulting from false and fraudulent representations by the vendor as to the condition of the property is simply in mitigation of damages and not for the purpose of impairing the legal effect of the instrument sued on, and is permissible to entitle defendant to recover by way of recoupment.
    4. Set-off and recoupment, § 17

      —when claims may he recouped. A claim originating in contract may by recoupment, in order to prevent circuity of action, be set up against one founded In tort, if the counterclaim arises out of the same subject-matter and is susceptible of adjustment in one action. So, also, may claims in contract or in tort be set up by recoupment against one founded in contract if the counterclaim arises out of the contract sued on, although the counterclaims are for unliquidated damages.
    5. Set-off and recoupment, § 4

      —set-off and recoupment distinguished. Set-off may be allowed for liquidated damages arising
      ex contractu even to the extent of permitting a judgment for the defendant for the excess of his claim over that of the plaintiff. In recoupment the claim is merely allowed hy way of lessening the plaintiff’s damages, which may go to the extent of extinguishing plaintiff’s damages, but no judgment for any excess of the counterclaim over that of plaintiff’s claim can be given for the defendant.

      Charles S. Knudson, for appellant.
    Underwood & Smyser, for appellee; Charles R. Young, of counsel.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

6. Vendor and purchaser, § 317 —when direction of verdict for plaintiff in action for purchase money is error. In an action to recover a balance due on a contract for the sale of real estate where defendant filed a counterclaim for damages resulting from false and fraudulent representations made by the plaintiff as to the condition of the property, action of court in excluding all of defendant’s evidence and directing a verdict for plaintiff held error, it appearing that defendant’s evidence tended to prove every element of fraud and deceit and that he was entitled to have a jury pass upon the merits of his defense.

7. Vendor and purchaser, § 348 —measure of damages for false representations hy vendor. For fraud and deceit in inducing a person to purchase real estate upon representations that there was a certain number of fruit trees thereon, the measure of damages is the difference between the value of the land as conveyed to him and the same land with the number of fruit trees thereon as represented.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Archibald W. McCandless, Appellee, v. John N. Crouse, Appellant.
    Gen. No. 18,449.
    (Tiot to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Farein Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Petition filed on redocketing of cause below after remand from Supreme Court by Jokn M. Cronse averring that he had complied with the mandate of the Supreme Court by tendering to Archibald W. McCandless the amount found due the latter together with a deed to the property in litigation, hut that said McCandless refused to accept the deed and praying that the latter be required to answer in detail showing in what respect said McCandless claimed that the property had deteriorated in value while the title thereto was in petitioner. The master to whom the case was referred found that owing to petitioner’s neglect to make repairs the premises had been damaged to the extent of $1,327.75, and the chancellor approving his findings decreed that petitioner pay said sum to McCandless, from which decree Crouse appeals.
    Abstract of the Decision.
    1. Judgment, § 408

      —when judgment on appeal res adjudieata. Where on a prior appeal from a decree on a bill for accounting the equities of the parties were determined by the judgment of the Appellate and Supreme Courts, such judgment is res adjudieata, and the subject is not open to inquiry on a subsequent appeal between the same parties involving the same subject-matter.
    2. Partnership, § 366

      —when partner liable on dissolution for depreciation of property conveyed to him to purchase interest in ■firm. Where under a partnership agreement certain premises were conveyed to one of the partners in part payment of the purchase price of an interest in the firm, and on a bill for accounting following a voluntary dissolution such partner was decreed to recover the property, the latter is liable for depreciation in the value of the property resulting from his neglect of duty to repair while holding the legal title, notwithstanding the fact that the amount expended by him on the property was in excess of his income therefrom, in view of a finding on appeal from' the decree in accounting that he was neither entitled to he reimbursed for an excess in expenditures nor to be required to account for an excess in receipts.

      The litigation out of which this proceeding arises will be found in Crouse v. McCandless, 121 Ill. App. 237, affirmed in 220 Ill. 344, and Macfarland v. Utz, 175 Ill. App. 525.
    Miller, Gorham & Wales, for appellant.
    Ashcraft & Ahscraft, for appellee; E. M. Ashcraft, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    J. W. Netterstrom, Defendant in Error, v. Kinzie Manufacturing Company, Plaintiff in Error.
    Gen. No. 18,509.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Architects and engineers, § 3

      —when evidence sufficient to sustain claim for commissions. In an action by an architect for commissions, the evidence was held to sustain his claim that a contract was procured through an estimate and bid made by him, and that under an agreement with defendant he was entitled to commissions thereon.

      Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by J. W. Netterstrom against Kinzie Manufacturing Company to recover commissions on contracts secured for defendant through estimates and bids made by plaintiff. From a judgment for three hundred and twenty-five dollars, defendant brings error.
    Brady & Levy, for plaintiff in error; Josiah Burn-ham:, of counsel. ■
    Charles F. McKinley, for defendant in error.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

2. Appeal and ebbob# § 1410 —when judgment not reversed as against evidence. A judgment will not be reversed as unsupported by evidence unless clearly and' manifestly against the weight of the evidence.


author: Mr. Justice Duhcah

text:
    John Trzetiatowski by Michael Trzetiatowski, Defendant in Error, v. Evening American Publishing Company, Plaintiff in Error.
    Gen. No. 18,581.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912,
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by John Trzetiatowski, an infant' by Michael Trzetiatowski, his next friend, against Evening American Publishing Company to recover for personal injuries inflicted by an automobile truck owned by defendant. From a judgment for plaintiff, defendant brings error.
    J. C. M. Clow, for plaintiff in error.
    Nathau S. Sohoenbrod and Blum & Blum, for defendant in error.

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

   Mr. Justice Duhcah

delivered the opinion of the court.

Abstract of the Decision. .

1. Automobiles and garages, § 2 —when owner of machine operated rapidly on wrong side of street liable for injuries to pedestrian. In an action for personal injuries by an infant, the evidence though disputed, tended to show that plaintiff, a boy between ten and eleven years old, while crossing a public street near its intersection with another street, with a roller skate on one foot, was struck and injured by an automobile truck running on the wrong side of the street at high speed. Held defendant’s negligence was for the jury.

2. Roads and bridges, §. 228*—when pedestrian may expect compliance with law of the road. One crossing a public street may reasonably expect that danger from vehicles will arise only from persons driving in conformity with the law of the road.

3. Instructions, § 7 —necessity for accuracy where evidence is conflicting. Where the evidence is conflicting as to the seriousness of the injury, instructions on damages must be accurate.

4. Damages, § 25 —injury to personal appearances. In an action for personal injuries, injury to personal appearance is not a proper element of damages.

5. Automobiles and garages, § 3 —when evidente of speed not incompetent because of vagueness. In an action for personal injuries inflicted by an automobile, testimony that the automobile “ran fast,” “ran very fast,” “ran mighty fast” is not wholly incompetent because of its vagueness, particularly where ^appellant’s evidence was to the effect that the automobile was “running slow.”


text:
    The People of the State of Illinois, Defendant in Error, v. Charlie Lee, Plaintiff in Error.
    Gen. No. 19,684.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, .Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 11, 1914.
    Rehearing denied March 24, 1914.

      Abstract of the Decision.
    1. Infants, § 5a

      —when information charging defendant with contributing to delinquency of female child sufficient. An information charging in substance that the defendant unlawfully encouraged the delinquency of a female child and did acts contributing to conditions which rendered her a delinquent child, and that the defendant took such female child and lived with her as man and wife contrary to the form of the statute, etc., held sufficient after verdict in the absence of a motion to quash it as against objections that it omitted the words “as defined by the statutes of this State” and “as so defined”, and that it did not state in what particulr the female was or had been 'delinquent.
    2. Indictment and information, § 11

      —when information not vitiated by indorsement on margin. An information charging the commission of an offense on July 10, 1913, is not vitiated by a statement on the margin thereof signed by the clerk “William F. Bowler resworn July 15, 1913,” where there is no indication on the face of the information that it was amended by erasing any former date, and the record does not recite that it was amended in that manner or otherwise.
    3. Indictment and information, § 18

      —verification of inform,ation. When an information is presented by a party other than the State’s Attorney, it must, under the Municipal Court Act, be sworn to by him, and his affidavit in due form should be appended thereto and subscribed by him, and the jurat of the officer in due form should also be appended and signed by him in his official capacity.

      Statement of the Case.
    Information by The People of the State of Illinois charging Charlie Lee with unlawful acts contributing to the delinquency of Nellie Furlong, a female child under the age of eighteen years. Defendant was found guilty by the Municipal Court “in manner and form as charged in the information” and sentenced to confinement at labor in the House of Correction for six months. To reverse the judgment, defendant prosecutes error.
    Friedman & Ader, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

4. Indictment and information, § 20 —verification of amended information. Where an information is amended in court, it must be reverified by the prosecuting witness, and a new affidavit and jurat in due form should be appended and subscribed by the prosecuting witness and the officer in the same manner as originally.

5. Criminal law, § 497 —presumption as to amendment of information. It cannot be presumed that an information was amended from a showing that leave to amend was granted.

6. Criminal law, § 372 —what constitutes judgment. The announcement of the court or the judge’s minutes are no part of the judgment proper, and cannot be so considered; they merely serve as indicators for the correct recording of the judgment and sentence in the record by the clerk.


author: Mr. Presiding Justice Fitch

text:
    Albert B. Yudelson, Plaintiff in Error, v. Philip Winterberg, Defendant in Error.
    Gen. No. 18,821.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Rehearing denied April 9, 1914.
    Statement of the Case.
    Action by Albert B. Yudelson against Philip Winterberg to recover a sum claimed by the plaintiff to be due him for services as a physician. The defendant interposed a set-off and claimed that part of the services rendered by plaintiff were rendered before he had a license to practice medicine. On a trial before the court without a jury the court found in favor of defendant upon both items of defense and rendered judgment for plaintiff for seven dollars. Plaintiff sues out a writ of error to reyerse the judgment.

      Abstract of the Decision.
    1. Municipal Coubt of Chicago, § 25

      —time for suing out writ of error. Motion to dismiss writ of error to review a judgment of the Municipal Court on the ground that it was not sued out within thirty days as required by section 23 of the Municipal Court Act, J. & A. jf 3335, denied for the reason that such section had been held unconstitutional.
    2. Municipal Coubt of Chicago, § 18

      —when motion for non-suit comes too late. Under section 30 of the Municipal Court Act, J. & A. If 3342, a motion for nonsuit comes too late when made after the court had stated in substance what his finding would be, though made before the court made formal announcement of his finding.
    Israel Cower, for plaintiff in error.
    Blum & Blum, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Presiding "Justice Fitch

text:
    W. A. Fraser Company, Appellee, v. The Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 18,907.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; .the Hon. H. C. Moban, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 26, 1914.
    Rehearing denied April 9, 1914.
    Statement of the Case.
    Action by W. A. Fraser Company against The Chicago, Burlington & Quincy Railroad Company to recover for the loss of grain shipped by the plaintiff over the railroad of defendant at various times during a period of eight years. Plaintiff was in the grain business and operated a grain elevator in each of nine towns in Illinois along the line of defendant’s road. About 5,300 cars of grain were delivered to and transported by the defendant for the plaintiff during said eight years, and plaintiff’s claim is for the value of grain alleged to have been lost in transit, as shown by the difference between the weights of the grain as loaded into defendant’s cars and as delivered from such cars at destination. From a judgment in favor of plaintiff for $22,087.87, defendant appeals.
    Abstract of the Decision.
    1. Carriers, § 148

      —when computation as basis for damages for loss of grain in various shipments inadmissible. In an action against a railroad company for the loss of grain in transit on various shipments made by the plaintiff during a period of eight years, proof of the value of the grain lost by permitting a witness for plaintiff to testify as to a computation made by multiplying the total loss in each of the shipments by the average of the prices obtained for the grain which was delivered upon, the several dates when it was delivered, held inadmissible, and allowing such proof held reversible error, it appearing that the jury made the computation a basis for its verdict.
    2. Carriers, § 137

      —proof of damages resulting from breach of contracts contained in various bills of lading. Where an action against a carrier is to recover damages for breach of contracts contained in various bills of lading, plaintiff is required to prove a breach of each contract and damages resulting therefrom and the question that each of the bills of lading constitute a separate and independent contract depends, to some extent at least,, upon the circumstances under which such bills of lading were issued.
    Wilt,tam D. Barge, for appellant; Chester M. Dawes and J. A. Connell, of counsel.
    Charles A. Butler and Brown & Ewen, for appellee; Warren Pease, Charles P. Molthrop and Franklin Baber, of counsel.

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

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

   Mr. Presiding "Justice Fitch

delivered the opinion of the court.

3. Municipal Court op Chicago, § 13 —when proof is limited to claim made by plaintiff’s statement. In the Municipal Court, where formal pleadings are not required, the name given to the action by the plaintiff is not necessarily decisive of the right to recover, but he is limited in his evidence to the claim he has made. He cannot make one claim in his statement and recover upon proof of another, without amendment.


text:
    Bernard Sackarnd, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,984.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Action "by Bernard Sackarnd against Chicago Railways Company to recover for personal injuries inflicted on him as the result of the wagon which he was driving on defendant’s tracks being struck by the overhang of a car on another track rounding a curve. From a judgment for plaintiff for one thousand dollars, defendant appeals.
    Charles L. Mahony, William: H. Symmes and Alfred B. Davis, Jr., for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Lynn & Batjmer, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

Street railroads, § 100 -—when driver of vehicle strode By overhang of car on curve guilty of contributory negligence. In an action for personal injuries sustained by the driver of a vehicle struck by the overhang of a car rounding a curve, the evidence showed that on the curve in question the clearance between cars using the two tracks varied from six inches upward, depending upon the position of the cars on the curve; that prior to the accident plaintiff was driving in the tracks on the proper side of the street; that to have been struck by the overhang of the car he must have turned on to the space between the two sets of tracks, as a car was approaching in plain view. Held plaintiff was guilty of contributory negligence barring recovery.


text:
    William L. O’Connell v. National Surety Company, Appellant. Thomas Connelly Company, Appellee.
    Gen. No. 19,000.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Bill of interpleader by William L. O’Connell, as treasurer of Cook county, against National Surety Company, a corporation, and Thomas Connelly Company, a corporation, to determine the ownership of a fund in complainant’s hands claimed by both defendants. From a decree finding the Connelly Company entitled to nine hundred dollars of the fund and the0 Surety Company_ to the balance, the latter appeals.

      Abstract of the Decision.
    1. Interpleader, § 1

      —what questions presented for determination. On a bill of interpleader the question for determination is, who is entitled to the identical property brought into court, and it is not the province of the court to permit a general accounting between the defendants.
    2. Interpleader, § 8

      —when court may settle equitable claims on fund. On interpleader the court may investigate and settle equitable as well as legal claims to the fund in dispute, provided such claims are in the nature of equitable liens upon the particular fund in controversy as distinguished from merely equitable claims by one defendant against the other which have never, by contract or otherwise, been made a charge or lien upon the specific fund in court.
    3. Interpleader, § 1

      —when court may settle equities of parties. Where defendants to a bill of interpleader answer without objection and the complainant is dismissed, the court may so shape its decree as to do complete equity between the parties.
    4. Interpleader, § 8

      —when claim constitutes an equitable lien on fund. Where a Surety Company, taking over the work on a public contract under an assignment by the contractor for whom it was surety, induced a material man, who had advanced money to the contractor to pay labor, to withdraw his lien for such advance and for material claims under a promise to pay his claim in full out of any surplus remaining on the completion of the work after payment of other claims, such material man has an equitable lien on the surplus to the extent of his claim, which may be enforced in equity on a bill of interpleader filed against him and the Surety Company by the county treasurer.
    5. Appeal and error, § 1258

      —when unsuccessful party cannot complain of inadequacy of finding for adverse party. Where the evidence would have justified a finding in excess of the amount allowed, the unsuccessful party is not injured thereby.
    6. Trial, § 87

      —when refusal to reopen case to permit witness to correct testimony not error. Where on interpleader one of the defendants claimed a portion of the fund in controversy under an alleged agreement with the other defendant that if he would withdraw his lien his claim would he paid out of any surplus which might remain after the payment of other claims, and an officer of the latter testified that there was a sufficient amount on hand to pay the claim in full if it were a just claim, the refusal of the chancellor to reopen the case to permit such officer to correct his testimony, hy showing that he had testified without full information and that there were other claims outstanding, is not an abuse of discretion.

      Winston, Payne, Strawn & 'Shaw, for appellant; John C. Shade, of counsel.
    S. L. Shawitsky, for appellee Thomas Connelly.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    R. A. Crandall, Defendant in Error, v. Albert L. Kirk, Plaintiff in Error.
    Gen. No. 19,007.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Action by E. A. Crandall against Albert L. Kirk to recover, a stipulated sum agreed by the latter to be paid on failure to perfect title to certain property conveyed to plaintiff in part payment of the purchase price of an automobile, such sum to be in lieu of the property. On trial below without a jury plaintiff recovered judgment for four hundred dollars, from which defendant brings error. A motion to affirm the judgment was reserved to the hearing.
    Francis E. Croarkin, for plaintiff in error.
    John T. Booz, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and bbrob, § 849 —when exhibits sufficiently identified to become part of record. The fact that exhibits introduced in evidence at the trial appear after instead of above the judge’s signature to the stenographic report does not prevent them from being part of the record where so identified in the report as to show conclusively that they were the exhibits referred to therein.

2. Appeal and ebbob, § 482 —when propositions of law unnecessary. Propositions of law are unnecessary where the only questions presented for review relate to pure questions of fact or to rulings of the court during the trial which were otherwise preserved.

3. Appeal and ebbob, § 594 —when motion for new trial or in arrest unnecessary. Where the trial is by the court without a jury, no motion for new trial or in arrest of judgment is necessary.

4. Appeal and ebbob, § 551 —when exception unnecessary. Under the amendment of 1911, Practice Act, sec. 81, J. & A. jf 8618, no formal exception is necessary to be shown where a stenographic report of the trial instead of a bill of exceptions is certified, filed and used as the record of the court of review.

5. Municipal Coubt of Chicago, § 26 —when seal unnecessary to stenographic report. The signature of a Municipal judge to the stenographic report need not be under seal.

6. Municipal Coubt of Chicago, § 26 —when certificate to stenographic report sufficient. Certificate to a stenographic report that it is a “correct stenographic report of proceedings in said cause” is not open to objection.

7. Appeal and ebbob, § 1105 —when failure to give notice of filing of prcecipe not ground for dismissal. Failure to give the five days’ notice of filing prcecipe for record provided for in Practice Act, see. 81, J. & A. V 8618, is not ground for the dismissal of the appeal.

8. Vendor and pubchaseb, § 332 —when tender of reconveyance at trial insufficient. Where the vendor of an automobile accepted a deed to certain realty in part payment of the purchase price, on condition that certain defects in title be removed within a specified time, or in lieu thereof á stipulated sum of money, in an action to recover such sum a tender of a reconveyance at the trial will not suffice, and the plaintiff’s remedy is confined to the recovery of damages for breach of contract to deliver a merchantable title.

9. Vendor and purchaser, § 344 —measure of damages for defective title. The measure of damages for breach of contract to deliver a merchantable title is the difference between the actual value of the title delivered and its agreed value.


text:
    The Chicago Journal Company, Plaintiff in Error, v. Union Life Insurance Company, Defendant in Error.
    Gen. No. 19,045.
    (Not to be reported in full.)
    Abstract of the Decision.
    Corporations, § 357

      —authority of president to contract for personal advertisement. In an action by a newspaper corporation to recover for publishing a picture and biography of the president of an insurance company under a written request signed by the president in the name of the insurance company, a finding and judgment for defendant held proper, there being no evidence tending to prove that the president was authorized to contract for the publication at the expense of the corporation, and it appearing that the publication contracted for was purely a personal advertisement of the president and not for the purpose of advertising the business of the company.

      Error to the Municipal Court of Chicago; the Hon. Henry C. Beitlee, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Action Tby Chicago Journal Company against Union Life Insurance Company to recover a sum claimed to he due upon a written contract signed by “Union Life Ins. Co., By E. C. Spinney, Pt.” The contract was in the form of a letter addressed to plaintiff stating plaintiff was authorized to make a half-tone engraving of Spinney and print the same, including a brief biography of him as “Pres. Union Life Ins. Co.” Upon a trial without a jury, the court found the issues for defendant, and from the judgment entered thereon plaintiff brings error.
    Horace C. Bennett, for plaintiff in error; Enoch Harpole, of counsel.
    Eastman & White, for defendant in error; Balph B. Hawxhurst, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    The People of the State of Illinois ex rel. Mary Bobola, Defendant in Error, v. Andrew Madaj, Plaintiff in Error.
    Gen. No. 18,413.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Complaint by The People of the State of Illinois ex rel. Mary Bob ola against Andrew Madaj alleging that said Mary Bobola was an unmarried woman and was delivered of a female child and that defendant was the father of the child. Defendant plead not guilty, a trial by jury was waived and the court found the defendant guilty. The court entered judgment on the finding and further adjudged that the defendant pay the sum of five hundred and fifty dollars for the support, maintenance and education of the child. To reverse the judgment, defendant prosecutes error.
    George Remus, for plaintiff in error.
    Maclay Hoyhe, for defendant in error; Zaoh Hoeheimer, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

Bastabds, § 22*—sufficiency of evidence. In a bastardy proceeding, a finding that the defendant was the father of a bastard child held sustained by the evidence.


author: Mr. Justice Gbidley

text:
    Michael Kramp et al., Appellees, v. John Kramp et al. Louis Thexton and Elizabeth H. R. Thexton, Appellants.
    Gen. No. 18,905.
    1. Moktgages, § 56

      —when mortgage assumed by grantee of equity of redemption not void for fraud. On bill to foreclose a second mortgage, where the facts showed that the premises had subsequently been conveyed subject to incumbrances to one of the defendants who had also conveyed subject to the incumbrances to another defendant, held that a' defense by the second grantee, that the second mortgage was void for the reason that the complainants and the first grantee had entered into a conspiracy to defraud him by placing a fictitious incumbrance on the property for the purpose of deceiving him as to the value of the property, was not sustained by the evidence.
    2. Moktgages, § 231

      —when grantee of premises estopped from questioning validity of incumbrance. A grantee taking a warranty deed with the understanding or agreement that there was a bona fide second mortgage upon the premises in addition to a first mortgage, and that such incumbrances formed a part of the consideration, is estopped from questioning the validity of such second mortgage.
    3. Moktgages, § 514

      —when court may order receiver to remainin possession and collect rents. On bill to foreclose a second mortgage, held the court did not err in ordering that a receiver theretofore appointed remain in possession to collect the rents, etc., until the further order of the court.
    Appeal from the Superior Court of Cook county; the Hon. Tiieobobe Beentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.

      Certiorari denied by Supreme Court (making opinion final).

      Statement by the Court. This is an appeal by Louis Thexton and Elizabeth H. E. Thexton, his wife, from a decree of sale of certain real estate situated in Chicago, Illinois, entered by the Superior Court of Cook county on July 19,1912, under a bill to foreclose a second mortgage of $17,000, brought by Michael Kramp and Edwin L. Waugh, trustee, as complainants, against John Kramp, the two Thextons and others as defendants. The land was improved by a twenty-four flat building, known as the “Stanley Building,” occupied by tenants, and there was a first mortgage on the property of $25,000, of which $1,000 had been paid.
    The bill was filed on January 15,1912, and four days thereafter a receiver was appointed by order of the court after due notice. No appeal was taken from this order. On February 26th the joint and several answer of the defendants, Louis and Elizabeth H. E. Thexton, was filed, to which complainants filed a replication. All the other defendants defaulted, and the cause was referred to a master in chancery to take proofs and report the same, together with his conclusions, etc. On May 31st, the motion of the Thextons for the removal of the receiver vas denied. On July 17th, the master filed his report, together with the testimony taken before him. He recommended that a decree be entered in accordance with the prayer of the bill. Both the Thextons and the complainants filed objections to the report before the master, which were overruled, and also exceptions before the court, which were also overruled. The court approved the master’s report, and found that there was due the complainant, Michael Kramp, upon the principal and interest notes mentioned in the hill, the sum of $17,903.33, together with solicitor’s fees of $100, or a total sum of $18,003.33, together with costs, and adjudg’ed and decreed that, unless the said sum, with interest upon $17,000 thereof and said costs, be paid to said Michael Kramp within five days, said property be sold by said master in chancery at public sale, after notice, etc., and the court also ordered that the receiver remain in possession to collect the rents, etc., until the further order of the court.
    The material facts of the case, as appears from the evidence introduced before the master, are substantially as follows: On July 1,1911, the defendant, John Kramp, then being the owner of the property, incumbered by said first mortgage, executed his promissory note of that date wherein, for value received, he promised to pay to the order of himself the principal sum of $17,000, on or before July 1,1915, with interest thereon at the rate of five and one-half per cent, per annum, payable semiannually, until maturity, and with interest at seven per cent, per annum after maturity, both principal and interest being payable at the office of Edwin L. Waugh, Chicago, or such other place as the legal holder of the note might from time to time appoint. It is stated on the face of the note that the same is secured by a trust deed of even date therewith to said Waugh, trustee, on real estate in Cook county, Illinois. On July 1, 1911, also, John Kramp indorsed said note in blank and retained the same in his possession until about August 7, 1911. This note, when introduced in evidence, also bore the indorsement: “Interest on this note is paid to August 1,1911.”
    For the purpose of securing the payment of the principal and interest evidenced by said promissory note, said John Kramp, a widower, of the city of Battle Creek, Michigan, signed a trust deed, dated July 1, 1911, conveying the premises to said Edwin L. Waugh, trustee, in trust, however, subject to a condition of defeasance upon the payment of said principal sum and interest and the performance of the other covenants and agreements in said trust deed contained. It was provided therein that if default be made in the payment of said principal note, or the interest thereon or any part thereof, at the time and in the manner therein specified for the payment thereof, then in such case the whole of said principal sum and interest should thereupon, at the option of the legal holder of said note, become immediately due and payable; and that, upon the application of the legal holder of the note, it should be lawful for the grantee, or his successor in trust, to enter upon and take possession of the premises, collect and receive rents, file a bill or bills to foreclose, obtain a decree of sale, and out of the proceeds thereof pay all costs, including a solicitor’s fee of $100, etc., and pay the principal of said note, and interest due, etc. This trust deed was duly acknowledged before a notary public by said John Kramp on July 29,1911, and was filed for record in the recorder’s office of Cook county on the same day at 9:41 a. m., as document No. 4,802,273, and duly recorded.
    Prior to the date of the filing of said trust deed for record, on July 29, 1911, John Kramp had some negotiations with one Thomas H. Kelley relative to the purchase by Kelley of Kramp’s equity in said property. These negotiations resulted in the signing of a warranty deed by Kramp, bearing date July 25, 1911, in and by which he, John Kramp, a widower, etc., “for and in consideration of the sum of $65,000,” conveyed and warranted to Thomas H. Kelley, of Chicago, Illinois, the said property (describing it), “subject to two incumbrances, the principals thereof aggregating the sum of $42,000, upon which $1,000 has been paid; subject also to the taxes for the year 1911, and to all special assessments.” This deed was acknowledged by John Kramp on July 29, 1911, before said Edwin L. Waugh as notary public, and was filed for record in the recorder’s office of Cook county on the same day, also at 9:41 a. m., as document No. 4,802,274, and duly recorded. It will be noticed that said trust deed to said Edwin L. Waugh, trustee, securing said principal nbte of $17,000, and said warranty deed to said Kelley, were both acknowledged on July 29, 1911, and were filed for record at the same hour and minute on that day,—the trust deed having the lower document number.

      It appears from the testimony of John Kramp, called as a witness for defendants, that, prior to the execution and recording of said warranty deed to Kelley, he and Kelley signed a contract by the terms of which Kramp was to convey the property to Kelley for the consideration named in the contract, and that he (Kramp) subsequently received that consideration. This contract was in the possession of said Waugh. It was produced and handed to the solicitor for the defendants, who examined it. The contract was not introduced in evidence, but it was stipulated by and between the respective solicitors that “the consideration shown in the contract between Thomas H. Kelley and John Kramp, over and above the mortgages aggregating $41,000, was 350 shares of capital stock of the American General Agency Company, a corporation under the laws of Illinois, fully paid and non-assessable, and the interest from August still on the incwmbra-nce.” It will be noticed that the amount of said principal note of $17,000 and the net amount of $24,000 remaining unpaid on said first mortgage, when added together, equals the sum of $41,000, as mentioned in said contract. As previously stated, .the said note when introduced in evidence bore the indorsement that the interest on the same was paid to August 1, 1911. John Kramp testified that this indorsement was- made by said Edwin L. Waugh about the time he (Kramp) made the deed to Kelley, that he saw Waugh make the indorsement, that Waugh was Kelley’s attorney and that Kelley introduced him to Waugh at the time when he (Kramp) signed said note of $17,000 on July 1, 1911. Edwin L. Waugh testified that he was Kelley’s attorney, that Kramp did not have an attorney, that he (Waugh), however, prepared the note of $17,000 and the trust deed and the warranty deed, that he took Kramp’s acknowledgment to the warranty deed and that a notary public in his office took Kramp’s acknowledgment to the trust deed, that he (Waugh) prepared the papers “so that Thomas IT. Kelley would get the title to the.property, as he had contracted to get it,” that the two incumbrances recited in the warranty deed formed a part of the consideration of $65,000 as recited therein, that “Kelley and Kramp went over and recorded their deeds together,” and that it is quite possible that at that time he cautioned Kramp to see that the trust deed was recorded before the warranty deed.
    It further appears from the testimony of John Kramp that he purchased the property in question in January, 1908; that on July 1, 1911, the property had cost him approximately $50,000; that he had about $26,000 in the property over and above the $24,000 unpaid on. the first mortgage; that on the day he signed and indorsed said note of $17,000, viz.: July 1, 1911, he was indebted to his brother, Michael Kramp, the complainant, in the sum of $6,025; that after he signed the trust deed the same was in the possession of said Waugh, trustee, until it was recorded; that he delivered the note to his brother, Michael Kramp, on the 6th or 7th of August, 1911; that the consideration for the transfer of the note to his brother was $475 in cash, the cancellation of said indebtedness of $6,025, and 100 shares of the capital stock of Swift & Company, which was worth “a little above par at that time”; that he “took the Swift stock for $10,500”; that he received from his brother on August 7th said $475 in cash and 50 shares of said stock, and that he received the other 50 shares during the first part of October, 1911. The complainant, Michael Kramp, testified that he is the owner of the note; that he bought it from his brother, John Kramp, the first part of August, 1911, at which time he received from him the note and trust deed; that one month’s interest on the note had been paid before he got the note; that the interest due on January 1, 1912, was not paid and he told said Waugh to start a foreclosure suit, which Waugh shortly thereafter did; that when he bought the note he paid his brother “to the amount near to $17,000”; that “we figured our balance near to $17,000, * * * and we made that by taking the amount of money which he already owed me and adding to that 100 shares of Swift stock and paying .the balance in cash”; that he first heard of Kelley when he- bought the note and first heard of Dr. Thexton when the interest became due; that at the time he bought the note he knew that there was a first mortgage on the property of $24,000; and believed that the property was worth more than $17,000 besides the first mortgage, and that he then considered it worth from $45,000 to $48,000.
    It further appears from the evidence that on November 18,1911, said Thomas H. Kelley and wife made and executed a warranty deed conveying said premises to the defendant, Louis Thexton. The deed was acknowledged on the same day before said Edwin L. Waugh, as notary public, and was filed for record on December 5, 1911. It was recited in the deed that the considera'tion was $65,000, and that the conveyance was made “subject to incumbrances noto aggregating $41,000 and accrued interest thereon, said incumbrances being payable $1,000 in January and July in each of the years 1912, 1913 and 1914, $1,000 in January, 1915 and $34,000 in July, 1915; subject also to all taxes and assessments.”
    In their answer to the bill, the defendants, Louis Thexton and wife, charged that the suit to foreclose was the result of a conspiracy, between Michael Kramp, said Waugh and said Kelley, to defraud Louis Thexton; that they entered into a scheme whereby John Kramp placed a “fictitious incumbrance” (viz., said note and trust deed) upon the property; and that this was done for the purpose of deceiving prospective customers as to the value of the property. And said defendants stated in said answer that subsequently, in November, 1911, Kelley represented to Louis Thexton that the said property was worth $70,000, and offered to sell or trade it on a valuation of $60,000; that Kelley further represented to Thexton “that it was worth a great deal more than the apparent incumbrance upon the same, that the incumbrance was placed upon the property in good faith, and that the incumbrance represented actual value in the property;” and that thereby Thexton was induced to purchase the fee and to convey and trade therefor clear lands of the value in excess of $15,000, etc. Neither the defendant Thexton nor said Kelley testified before the master.
    The master in his report found, inter alia, that John Kramp, when the owner of said property, executed said note and trust deed; that interest had been credited on said note down to August 1, 1911; that the interest due on said note on January 1, 1912, had not been paid; that Michael Kramp at the time of the filing of the bill was the legal holder and owner of said note and trust deed; that by reason of the default in the payment of the interest due he had elected to declare all of the indebtedness immediately due and payable; that there was due him on said principal note the sum of $17,000, together with interest thereon at the rate of five and one-half per cent, per annum, and also the further sum of $100 for solicitor’s fee, together with costs and expenses; that said Kramp had a valid lien upon the premises for said sum, interest, solicitor’s fees and costs, and was entitled to a foreclosure of the trust deed and to have the premises sold to satisfy said lien. The master further found that John Kramp had executed and delivered the warranty deed to said Kelley as above mentioned; that John Kramp had delivered said note and trust deed to Michael Kramp at the time and for the consideration as above mentioned; that on November 18, 1911, said Kelley and wife had executed and delivered the warranty deed to Louis Thexton as above mentioned; that there was a prior incumbrance upon said property as aforesaid, and that a note of $1,000 secured thereby fell due in January, 1912, and that an instalment of interest on said first incumbrance fell due at the same time, and that Louis Thexton paid a part of said interest. The master fur* ther found that it was stipulated by counsel that, at the time of the delivery of said warranty deed to said Thexton by said Kelley, there was shown of record against the property in question two trust deeds, one securing an indebtedness of $25,000, of which $1,000 had been paid, and the other being the said trust deed from John Kramp to Waugh, trustee, dated July 1, 1911, securing an indebtedness of $17,000, payable July 1, 1915, and that there were no other trust deeds or mortgages of record and unreleased at said time. The master further found, as to the charge of conspiracy and fraud contained in the said answer of the two Thextons that “the said parties are free and clear of any acts of conspiracy, and * * * free and clear of any fraud in the premises”; and that the equities were with the complainant, Michael Kramp, and that he was entitled to the relief as prayed.
    Harvey Striokler, for appellants.
    Samuel Toplipp, for appellees.

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

   Mr. Justice Gbidley

delivered the opinion of the court.

The contentions made by counsel for defendants before the court upon exceptions to the master’s report, and now here made, are, in substance; (1) That when on July 29,1911, Thomas IT. Kelley received said warranty deed from John Kramp and recorded the same, the said trust deed of John Kramp to Edwin L. Waugh, trustee, sought by these proceedings to be foreclosed, was void and was not then a lien upon the premises, and that, therefore, said Kelley then took title to the premises free from any lien of the trust deed, notwithstanding the fact that said warranty deed contained the recital that the conveyance was made “subject to two incumbrances, the principals thereof aggregating the sum of $42,000, upon which $1,000 has been paid”; and (2) that Louis Thexton, who subsequently received a warranty deed from said Kelley, is in the same position as his grantor, Kelley, and that Thexton took title to the premises also free from any lien of said trust deed, notwithstanding the recital in the warranty deed to him that the conveyance was made “subject to incumbrances now aggregating $41,000 and accrued interest thereon. ’ ’

After careful consideration, we are of the opinion that, under the somewhat peculiar facts of this case, the contentions cannot be sustained.

We do not think that as to Thomas H. Kelley the trust deed was void. It is disclosed by the evidence that Edwin L. Waugh was Kelley’s attorney; that John Kramp, the owner of the premises subject to a first mortgage upon which $24,000 remained unpaid, had negotiations with Kelley relative to Kelley’s purchase of Kramp’s equity in the premises; that Waugh drafted the $17,000 note which was signed and indorsed by Kramp on July 1, 1911; that on this date John Kramp was actually indebted to the complainant, Michael Kramp, in the sum of $6,025; that Waugh also drafted the trust deed conveying the premises to himself as trustee'and purporting to secure said note; that during the negotiations John Kramp and Kelley entered into a written contract wherein it was stated, in substance, that the consideration for the sale of Kramp’s equity in the premises, over and above the mortgages aggregating $4.1,000, was 350 shares of the capital stock of a certain Illinois corporation, and the interest from August still on the incumbrance; that Waugh made the indorsement on said note that the interest thereon had been paid to August 1, 1911; that Kramp subsequently received said shares of stock; that Waugh drafted the warranty deed from Kramp to Kelley and took Kramp’s acknowledgment thereto; that the warranty deed contained the recital that the conveyance was made subject to two incumbrances aggregating the net sum of $41,000; that said two incumbrances formed a part of the consideration of $65,000 recited in said deed; that Kramp and Kelley went together to the recorder’s office when the trust deed and the warranty deed was filed for record, and that they were both filed for record on July 29, 1911, at the same hour and minute and that the trust deed has the lower document number. While it is true that John Kramp did not deliver said note o'f $17,000 to the complainant, Michael Kramp, until about August 7, 1911, or about nine days after John Kramp delivered the warranty deed to Kelley, the evidence discloses that the complainant, in consideration of the transfer of the note to him, cancelled the indebtedness of $6,025 owing him by John Kramp, paid the latter $475 in currency and ultimately delivered to the latter 100 shares of the capital stock of Swift & Company, which was worth ££a little above par” and was taken at an agreed valuation of $10,500,—all of which sums amount in the aggregate to the face of said note, $17,000. Under all the facts and circumstances in evidence we think that, when Kelley took the warranty deed from John Kramp, he did so with the understanding or agreement that there was a bona fide incumbrance upon the premises, in addition to said first mortgage of $24,000, to the extent of $17,000 with interest from August 1,1911; that these incumbrances formed a part of the consideration for the property, in that the amount which he was required to pay to John Kramp at the time of the delivery of said warranty deed, either in money or property, was lessened to the extent of the amount of said incumbrances; and that, were Kelley now here seeking to have the premises freed from the lien of said trust deed, he would be estopped from questioning its validity. Lang v. Dietz, 191 Ill. 161, 166; Pidgeon v. Trustees of Schools, 44 Ill. 501, 502; Essley v. Sloan, 116 Ill. 391, 398; Valentine v. Fish, 45 Ill. 462, 468; Ray v. Lobdell, 213 Ill. 389, 395; Foy v. Armstrong, 113 Iowa 629, 631. And we do not think that the case of Crawford v. Nimmons, 180 Ill. 143, relied upon by counsel for defendants, is authority for a different conclusion under the facts of the present case.

And we are of the opinion that the master’s finding, confirmed by the court, that the charges of conspiracy and fraud, as contained in the answer of Thexton and wife, were not proved, is fully warranted by the evidence. And it appears that the $17,000 note, secured by said trust deed, was delivered to the complainant, Michael Kramp, about August 7, 1911; that part of the consideration for said note was then paid to John Kramp and the balance of the consideration, viz., the other 50 shares of the Swift & Company’s stock, was delivered to him by complainant during the first part of October, 1911; that the warranty deed from Kelley to Thexton was not delivered until November 18, 1911; that at that time there was shown of record against the property two trust deeds, one securing a net first mortgage indebtedness of $24,000, and the other being the trust deed in question securing said note of $17,000, and that there were no other trust deeds or mortgages of record upon the property and unreleased, and that in said warranty deed to Thexton it was recited that the consideration was $65,000, and that the conveyance was made “subject to incumbrances now aggregating $41,000 and accrued interest thereon.” And in the answer of the defendants it is alleged that Kelley represented to Thexton, before the warranty deed was delivered, that the property was worth “more than the apparent incumbrance upon the same, that the incumbrance was placed upon the property in good faith, and that the incumbrance represented actual value in the property,” and that Thexton purchased the fee and gave in trade therefor clear lands of the value in excess of $15,000. Our conclusion is that the said trust deed, as against the Thextons, is a valid lien upon the premises, and that the court did not err in entering the decree of sale appealed from.

And we do not think that, under the facts of this case, the court erred in ordering that the receiver theretofore appointed remain in possession to collect the rents, etc., until the further order of the court.

The appellees have here assigned cross-errors, in which they contend that they should have been allowed interest upon said principal note from the date of the filing of the bill to foreclose at the rate of seven per cent, per annum, instead of at the rate of five and one-half per cent., as allowed by the master and confirmed by the court, and further contend that they should have been allowed a larger sum than $100 as solicitor’s fees. Without discussion, we deem it sufficient to say that in our opinion, under the facts of this case, the contentions are lacking in substantial merit.

The decree of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Gíridley

text:
    Central Machine Company, Appellee, v. Northern Equipment Company, Appellant.
    Gen. No. 18,991.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Cook county; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 26, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Central Machine Company, a corporation, against Northern Equipment Company, a corporation, to recover on an- indebtedness incurred by American Boiler Economy Company alleged to have been assumed by defendant on taking over the property and rights of the Boiler Company. From a judgment for plaintiff for $1,369.25, defendant appeals.

      Abstract of the Decision.
    1. Corporations, § 472

      —when corporation purchasing property of another estopped to deny assumption of debts. Where defendant corporation succeeded to all the property and rights of another corporation which was indebted to plaintiff, defendant was held estopped to take advantage of the fact that a letter to plaintiff advising it of the consolidation and assuming the indebtedness to it was written, and the meeting of the board of directors of defendant at which such obligation was assumed was held before defendant had became fully organized, and never ratified after the organization was completed.
    2. Municipal Court of Chicago, § 13

      —when statement of claim sufficient. In an action against a corporation on a claim against another corporation to whose property and rights it succeeded, and which it was claimed the former assumed and agreed to pay an allegation in the statement of claim that defendant was the successor of said corporation, is sufficient, after verdict, to charge defendant with liability.
    3. Appeal and error, § 1550

      —when submission of question not in issue harmless. In an action against a corporation succeeding to the property and rights of another corporation on an indebtedness incurred by the latter, an instruction submitting the question as to whether the consolidation of the corporations was fraudulent as to creditors was held, not prejudicial to defendant, although there was no allegation of fraud in plaintiff’s statement of claim.
    4. Appeal and error, § 479

      —when error in instruction not reviewable in absence of objection. Error in submitting to the jury the question as to whether a transaction was a fraud on creditors, though fraud was not alleged in plaintiff’s statement of claim, is not available on appeal where the instruction submitting the question was not specifically objected to on that ground, the objections made being based on other grounds.
    Fyffe, Adcock & Ryner, for appellant; Colin C. H. Fyffe, of connsel.
    Bryan, McCormick & Wilber, for appellee; Howard H. McCormick, of connsel.

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

   Mr. Justice Gíridley

delivered the opinion of the court.


text:
    Vaclav Zygarlowski, Plaintiff in Error, v. W. Jaworski et al., Defendants in Error.
    Gen. No. 19,029.
    (Not to be reported in full.)
    Abstract of the Becision.
    Tbover and conversión, § 3

      —when officers of beneficial society not liable for conversion by attorney. Where a death benefit fund in the hands of a beneficiary society was claimed adversely by two brothers as heirs at law of a deceased member and the society filed a bill of interpleader against them, and on the advice of the attorney for the society, that it was necessary to pay the amount in dispute into court, the officers constituting the executive council of the society authorized the payment of such sum to said attorney for the purpose of having same deposited in court, such officers are not liable to the successful party in the interpleader suit for the amount so paid to the attorney and converted by him.
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Action by Yaclav Zygarlowski against W. Jaworski, Walenty Zwierzynski and W. Spy chala to recover a death benefit fund in a beneficial society alleged to have been held by defendants in trust for plaintiff and to have been converted by them. From a judgment for defendant, plaintiff brings error.
    William F. Bigelow, for plaintiff in error.
    Charles A. Churan, for defendants in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Joseph Husak, Plaintiff in Error, v. Martin Maywald, Defendant in Error.
    Gen. No. 19,072.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Brokers, § 36

      —when broker not entitled to compensation until deal consummated. Where under the contract with a broker the latter’s compensation is expressly made dependent upon the actual consummation of a trade, the fulfillment of the condition is a prerequisite to his right to recover compensation.

      Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Action by Joseph Husak against Martin Maywald to recover commissions as a broker on an exchange of lands negotiated by him between defendant and one John Svatek. The contract for the exchange which was drawn by plaintiff provided that each party should “provide for the use of the other within fifteen day's from the date hereof, proper abstracts of title to the property hereby agreed by them to be conveyed * * * showing good and sufficient title to the same in the grantors ’ ’; that time was the essence of the contract ; that Svatek should pay to plaintiff two hundred dollars, and defendant should pay to plaintiff two hundred and fifty dollars, as brokerage fees, and that “each one is to pay the above commission to Joseph Husak when deal is consummated.”
    Frank H. Novak, for plaintiff in error.
    Benjamin Wolf and George A. McCorkle, for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Abstbacts of title, § 3 —when abstract insufficient without certificate from abstract company. Where under a contract for the exchange of land one of the vendors was to furnish a “proper” abstract within a certain time, and the abstract furnished was rejected because showing title in a person other than the vendor, and on being returned contained an inserted page showing a conveyance by the record owner to a person bearing a name similar to vendor’s, there being no certificate from the abstract company furnishing the abstract showing by whom such page had been inserted, such an abstract is not a “proper” abstract within the contract.


text:
    The People of the State of Illinois, Defendant in Error, v. John Schleig, Plaintiff in Error.
    Gen. No. 19,184.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois against John Schleig on complaint of Helen Kleich under section 1 of the “Act concerning Bastardy”, J. & A. ff 703, and section 50a of the Municipal Court Act, J. & A. 3364. Defendant pleaded not guilty and waived a trial by jury. The court found the defendant to be the father of the child and entered judgment on the finding adjudging that defendant pay to the clerk of the court for the support, maintenance and education of the child the sum of five hundred and fifty dollars, to be paid in certain instalments. To reverse the judgment, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Bartabds, § 14

      —necessity of seal of Municipal Court to jurat of the complaint. The fact that the seal of the Municipal Court is not attached to the jurat signed by the clerk of said court accompanying a complaint in a bastardy proceeding does not make the complaint defective.
    2. Bastabds, § 14

      —when complaint sufficient without indorsement of judge. A complaint filed in the Municipal Court in a bastardy proceeding need not bear the indorsement of the judge of said court that he had examined the complaint and was satisfied that the warrant should issue, where it appears from an order of court entered of record on the day the complaint was presented that the presiding judge examined the complaint and also examined the relatrix under oath and was satisfied that^ there was probable cause for filing the complaint, and an objection for want of such indorsement cannot be first urged on review.
    3. Bastakds, § 60

      —when formal defects in complaint cannot he urged on review. Mere formal defects in a complaint cannot be taken advantage of for the first time in the Appellate Court.
    4. Notaries, § 12

      —when seal unnecessary. In this State the jurat of a notary public to affidavits made before him in the county of his residence need not be authenticated by his notarial seal.
    Defendant urges as ground for reversal: (1) The seal of the Municipal Court is not attached to the jurat signed by the clerk of said court accompanying the complaint; and (2) the complaint does not bear the indorsement of a judge of said court to the effect that he examined the complaint and was satisfied that it should be filed, as provided by section 27 of the Municipal Court Act, J. & A. 3339.
    George Remus, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Edward Mars, Plaintiff in Error.
    Gen. No. 19,507.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Information signed and sworn to by Laura Ebel and filed in the Municipal Court against Edward Mars alleging that the defendant was the father of four dependent minor children and neglected to remove the condition which rendered said minor children dependent, though able to do so. The information was filed under section 42hb, ch. 38, Hurd’s R. S. 1912, J. & A. 3580. Defendant was arrested on a capias and pleaded not guilty. A jury found the defendant guilty in the manner and form as charged in the information, and the court adjudged that the defendant pay to his wife, Mary Mars, for her use, the sum of ten dollars weekly for one year, and that defendant be given leave to enter into a recognizance in the sum of eight hundred dollars payable to the People for the nse of his wife, etc. To reverse the judgment, defendant prosecutes error.
    Defendant urges as ground for reversal: (1) That defendant did not have a jury trial as guaranteed by the Constitution of the State, in that a name appears among the names of the jurors who signed the verdict which does not appear among the names of the jurors impaneled to try the cause; (2) that the trial court erred in the manner in which it conducted the trial while one of defendant’s witnesses was on the stand; and (3) that the verdict is not supported by the evidence.

      Abstract of the Decision.
    1. Infants, § 5a

      —when conviction for contributing to dependency of minor children sustained by evidence. On information filed under section 42hb, eh. 38, Hurd’s R. S. 1912, J & A. If 3580, charging defendant with neglecting to remove a condition which rendered his minor children dependent, a finding of guilty held sustained hy the evidence.
    2. Cbiminal law, § 554

      —when examination of witness by court not reversible error. Action of trial court in asking certain questions of one of defendant’s witnesses while such witness was being examined by defendant's counsel, held not to so control the examination of the witness to the prejudice of defendant as to amount to reversible error.
    3. Cbiminal law, § 463

      —when variance as to name of juror in transcript of record obviated by additional transcript. Where it appears from the original transcript of the record that the name of one of the jurors impaneled to try the cause was “W. J. Paterson,” while the name of one of the jurors who signed the verdict was “W. J. Peterson,” an objection that defendant did not have a jury trial as guaranteed by the Constitution, held to be without merit where, after the briefs of counsel for defendant had been filed, the counsel for the People by leave of court filed an additional transcript in which the trial judge certified that he had examined the record and that the name “W. J. Paterson” appeared as one of the jurors who signed the verdict.
    Harry Biossat, for plaintiff in error.
    Maclay Hoyhe, for defendant in error; Edward E. Wilsoh, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice G-ridley

text:
    The People of the State of Illinois, Defendant in Error, v. Joseph Berg, Plaintiff in Error.
    Gen. No. 19,539.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 1

      —evidence constituting a prima face case of excessive speed. On information charging the driver of an automobile with violating the speed statute, testimony of a witness for the State that the defendant was driving on a boulevard in a residence district at a certain place at twenty-nine miles per hour and at another place at thirty-five miles, and that the automobile was a touring car and not an ambulance, held to make a prima facie case of a violation of the statute, and that it devolved upon defendant to overcome it by competent evidence.

      Error to the Municipal Court of Chicago; the Hon. Shebidan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 26, 1914.
    Statement of the Case.
    Information filed in the Municipal Court of Chicago charging Joseph Berg with driving a motor vehicle upon the streets of the city of Chicago at a speed in excess of fifteen miles per hour in violation of section 10 of the Motor Vehicle Act, J. & A. 10010. Defendant pleaded not guilty and a jury returned a verdict finding the defendant guilty. The court entered judgment upon the verdict and further adjudged that the defendant pay a fine of seventy-five dollars and costs, and that in default of such payment that he be committed to the House of Correction. To reverse the judgment, defendant prosecutes error.
    Rose, Symmes & Kirkland, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

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

   Mr. Justice G-ridley

delivered the opinion of the court.

2. Automobiles and garages, § 1 —when evidence sufficient to sustain conviction for excessive speed. On information charging defendant with driving a motor vehicle in excess of fifteen miles per hour in violation of section 10 of the Motor Vehicle Law, J. & A. 1f 10010, held that the question whether the defendant violated the statute was for the jury, and that a finding of guilty was sustained by the evidence, it appearing from the testimony of witnesses on behalf of the People that the defendant was driving at a rate of from twenty-nine to thirty-five miles per hour on a boulevard in the residence portion of the city and defendant’s evidence showing that he was driving in excess of fifteen miles per hour but that his speed was slackened at street intersections and that his automobile was in good condition so that the machine could be stopped at any time within from fifteen to twenty feet.

3. Municipal Court of Chicago, § 17 —oral instructions. Under section 37 of the Municipal Court Act, J. & A. If 3349, the court may within its discretion instruct the jury orally.

4. Municipal Court of Chicago, § 28 —necessity of exception to specific portion of oral instruction. Objection that certain portions of an oral charge to the jury cannot be considered where the bill of exceptions does not show an exception to any specific portion thereof.

5. Municipal Court of Chicago, § 17 —when court may refuse to give written instructions. The Municipal Court may refuse to give to the jury written requested instructions where it has determined to charge the jury orally.


text:
    The People of the State of Illinois, Defendant in Er-Error, v. Ralph Standish, Plaintiff in Error.
    Gen. No. 19,691.
    Jury, § 32

      —when error to deny leave to withdraw fury waiver. Where defendant waived a trial by jury before his arraignment and plea, it was error for the court to deny his application for leave to withdraw his jury waiver, which application was also made before arraignment and plea.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jb., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 26, 1914.
    Thomas J. O’Hare, for plaintiff in error.
    Maolay Hoyne, for defendant in error; Francis E. ITincley, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

An information was filed in the Municipal Court of Chicago, in which it was alleged that “Balph Standish * * * on the 10th day of July, A. D. 1913, at the City of Chicago, # * * did unlawfully steal, take and carry away one box of rubber tire patches, of the value of sixty cents, the personal goods and property of Butler Bros., a corporation.” 'The defendant, Standish, was arrested and brought before the court on July 11, 1913, and it appears from the transcript of the record that on that day the defendant, upon being duly advised by the court as to his right to a trial by jury, elected to waive such a trial and executed a former waiver thereof in writing, and that the court ordered that the trial be set for July 15th, without a jury. It does not appear that on said July 11th the defendant entered any plea to the information. From said transcript it further appears that on said July 15th the defendant was present in court and his attorney was also present, and that, before he had been arraigned and made any plea, the defendant moved that he be allowed to withdraw the jury waiver previously executed by him, which motion was overruled; that thereupon the defendant was arraigned and pleaded not guilty, and a trial was had before the court without a jury; that the court found the defendant “guilty in manner and form as charged in the information herein,” and that the court adjudged him to be “guilty of the criminal offense of larceny of the value of sixty (60) cents on said finding of guilty,” and that the court further adjudged that he be sentenced to confinement at labor in the House of Correction for two weeks, and that he be further sentenced to pay a fine of ten dollars, and costs of suit taxed at nine dollars, and that in default of payment of said fine and costs he, the defendant, after the expiration of said term of imprisonment, stand committed in said House of Correction until said fine and costs shall have been worked out, etc., or until he shall have been discharged according to law, etc. The defendant by this writ of error seeks to reverse the judgment of the trial court.

The main contention of counsel for defendant is that the finding and judgment is against the law in that the court erred in denying defendant’s motion for leave to withdraw his waiver of a trial by jury, which waiver was executed, and which motion for a withdrawal thereof was made, prior to the time of his arraignment and plea.

We are of the opinion that there is merit in the contention. In Parkinson v. People, 135 Ill. 401, 402, it is said that the arraignment and plea of the defendant “are essential to the formation of an issue to be tried by a jury. Where there is no issue, there is nothing to be tried.” In the present case it appears that the defendant’s waiver of a trial by jury was executed on July 11, 1913, before he had been arraigned and had pleaded, and, therefore, before the issue had been made and before there was anything to be tried. It also appears that before arraignment and plea the defendant asked leave to withdraw his said waiver of a trial by jury. The right of a trial by jury in a criminal case is jealously guarded. We think that under the circumstances the court erred in denying defendant’s motion and in effect denying a trial by jury to the defendant. Cain v. State, 102 Ga. 610; Butler v. State, 97 Ga. 404; State v. Touchet, 33 La. Ann. 1154.

Counsel for defendant also makes the point that the judgment order is incorrect, but inasmuch as we think the judgment should be reversed for reasons above stated, it is unnecessary for us to discuss this point.

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

Reversed and remanded.