text:
    Charles A. Wahrer et al., copartners, trading as Wahrer Brothers, Appellants, v. Ciecilia Molloy, Appellee.
    Gen. No. 22,725.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action in replevin by Charles A. Wahrer et al., co-partners, trading as Wahrer Brothers, plaintiffs, against Ciecilia Molloy, defendant, for the recovery of a diamond ring, statement in trover being filed on non-recovery of the ring. From a judgment for defendant, plaintiffs appeal.

      Abstract of the Decision.
    Evidence, § 421*—how value may be proved. Testimony as to the value of a diamond ring by a party not an expert nor in any way qualified to testify on the subject, held to be inadmissible.
    Kraft, Kraet & Erskine, for appellants.
    No appearance for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    Charles A. Wahrer et al., copartners, trading as Wahrer Brothers, Appellants, v. William J. O’Connor, Appellee.
    Gen. No. 22,726.
    1. Trover and conversion, § 47

      —what is correct measure of damages for conversion. The correct rule for the measure of damages in actions in trover is that of the value of the property on the day of the conversion.
    2. Trover and conversion, § 40*—when instruction on measure of damages in action of trover is erroneous. In an action of trover for the value of goods sold on partial payments, where the title and right of possession were to remain in the seller until the goods were fully paid for, an instruction that the measure of damages would be the value of the goods at the time of conversion less the amount of the partial payment or payments made, held to be erroneous.
    3. Trover and conversion, § 38*—when evidence as to value of goods is inadmissible in action of trover. In an action in trover for the value of goods, evidence as to their wholesale value held to be incompetent, as the proper inquiry should be as to their fair market retail value at the time of their conversion.

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Kraft, Kraft & Erskine, for appellants; Arthur L. Olson, of counsel.
    No appearance for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court in a replevin suit brought by plaintiffs against the defendant, wherein the jury returned a verdict finding the defendant guilty and assessing plaintiffs’ damages in the sum of one cent.

The evidence discloses that plaintiffs had sold to defendant a pair of diamond set earscrews, for which defendant agreed to pay $75, in instalments of $2 per week until the full amount was paid. It was further agreed in the contract that the title, ownership and right to possession to the property in question should remain in the plaintiffs until the sum due under the contract should be fully paid; and further, that the defendant would return the property to plaintiffs on demand in the event that he.failed to pay therefor as provided. The last payment on the contract was made by defendant on September 23, 1914, at which time he had paid a total sum of $40.50. On default of further payments a demand was made by an agent of the plaintiffs for a return of the property, hut defendant refused to comply therewith.

By leave of court a statement in trover was filed, to which the defendant pleaded the general issue.

On his own behalf the defendant testified that he informed plaintiffs that he had learned the earscrews were not worth $75, and that he would not pay any-thing more until they had made “the price right”; that he had submitted the matter of the value of the property to an expert, one Edward W. Eew. Eew testified that the earscrews were worth about $45 (here in Chicago) and that their wholesale value was about $30.

The judgment of the Municipal Court must be reversed for the error of the court in giving the following instruction:

“The court instructs the jury that if they find the issues in this case in favor of the plaintiffs they will assess the damages in favor of the plaintiffs and that the measure of damages so to be assessed is the value of the property at the time of its conversion, with interest from that date at 5 per centum (5%) per annum, but the jury should deduct from the amount which they find to have been the value of the property on the day of conversion, the amount which the defendant had paid to the plaintiffs upon his contract in this case, and your verdict therefore should be in the amount of the difference between the actual value of the property on the day of conversion and what had been paid under said contract. If you find for the plaintiff, therefore, you must assess the damages in Ms favor in at least the sum of one cent, but in any event not more than $24.50.”

This instruction is erroneous for two reasons: First, it is not the law that in trover cases similar to the one at bar “the jury should deduct from the amount which they find to have been the value of the property on the day of conversion, the amount which the defendant had paid to the plaintiffs upon his contract in this case. ’ ’ The correct rule for the measure of damages in actions in trover is that of the value of the property on the day of the conversion, and however harsh the application of this rule may be in certain cases, we find no authority for the position taken by the trial court that the amount paid by the defendant upon his contract could be deducted from the price which he had agreed to pay.

In Branstetter Motor Co. v. Silverberg, 140 Ill. App. 451, a case very similar in principle to the one under consideration, the court, speaking through Mr. Presiding Justice Holdom, said:

"The contract of the parties is a hard one in its operation upon Silverberg. By his failure to live up to the terms of his contract he has lost his money, and has no machine. But the contract is of his own making, and we have no power, even if we had the disposition, to change or modify any of its terms. By the contract and that alone must his rights be determined. ’ ’

The decision in this case seems to be well supported by authority.

“As a general rule the seller need not in an action to recover the goods or the value thereof allow for or refund partial payments, such payments being regarded as forfeited.” 35 Cyc. 704, title “Sales.” In Latham v. Sumner, 89 Ill. 233, it was held that the retaking of possession of property, in a case essentially similar to the instant case, was but in accordance with the contract and the vendor was held not to be liable to refund certain payments made to him. See also, Herbert v. Rhodes-Burford Furniture Co., 106 Ill. App. 588. “But if the condition of payment is not fully complied with or is waived, the original vendor’s rights become perfect and absolute, and he may follow the property in whosever hands it is, or recover its full value, without any deduction for any partial payments made by the original vendee; at law they are all forfeited.” Benjamin on Sales (Ed. 1892), 283.

Second, the court also erred in instructing the jury that it “must assess the damages in his favor in at least the sum of one cent, but in any event not more than $24.50.”. Expert testimony was introduced upon the trial by both plaintiffs and defendant as to the value of the property in question. The witness for plaintiffs testified that the property was worth the contract price of $75; on cross-examination by the court, however, this witness said: “The wholesale value of the property at the time of conversion was $65”; and it is evident that the court meant to instruct the jury that the market value of the property must be taken, as a matter of law, to be its wholesale value and not its retail value. Evidence as to the wholesale price was incompetent; the proper inquiry should be as to the fair market value at the time of the conversion. The court erred in its instruction to the. jury that it was required to accept as the test of market value the wholesale price and to allow credits for payments made.

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

Reversed and remanded.


author: Mr. Justice Holdom

text:
    University Club of Chicago, Appellant, v. Earl H. Deakin, Appellee.
    Gen. No. 21,815.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by the University Club of Chicago, a corporation, plaintiff, against Earl H. Deakin, defendant, for rent under a written lease. From a judgment for defendant, plaintiff appeals.
    This case was before the Appellate Court, 182 Ill. App. 484, and also before the Supreme Court, 265 Ill. 257, the opinion in which is controlling on the questions of law involved.
    Abstract of the Decision.
    Landlord and tenant, § 325

      —when evidence sufficient to show violation of terms of lease. The evidence held sufficient to show that a certain tenant of a building in the conduct of his general jewelry business made a specialty of the sale of pearls, in an action for rent against another tenant under a lease containing a covenant on the part of the lessor not to rent any other store in the building to a tenant making a specialty of the sale of pearls, where it appeared that plaintiff had rented another store in the building to such tenant, and that such tenant, among several evidences of the fact that he made a specialty of selling pearls, advertised with a cut of a pearl necklace “a pearl necklace with no duplicate in existence” and “pearl necklaces, $400 to $7,000,” and certain other articles of jewelry valued at $5 to $400.
    Matz, Fisher & Boyden, for appellant.
    Robert F. Pettibone and John S. Goodwin, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Frank C. Dixon, Appellee, v. Smith-Wallace Shoe Company, Appellant.
    Gen. No. 23,551.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 228

      —when judgments of courts of record are admissible. Judgments of courts of record must, to he admissible ‘in evidence, be proven in conformity to Rev. St. ch. 51, sec. 13 (J. & A. ¶ 5530).
    2. Maaicious prosecution, § 74*—when evidénce is insufficient to establish fact of action or of judgment. In an action to recover for alleged malicious prosecution of a civil action in a foreign State, the testimony of the plaintiff as to such judgment and of another witness as to such action, held to be insufficient to establish the fact of the action or of the judgment.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiia, Judge, presiding. Heard in this court at the October. term, 1916.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by Frank C. Dixon, plaintiff, against Smith-Wallace Shoe Company, a corporation, defendant, to recover for alleged malicious prosecution of a foreign civil action. From a judgment for plaintiff, defendant appeals.
    Brothers & Fairfield, for appellant; Elmer D. Brothers, of counsel.
    Brady, Rutledge & Devaney, for appellee; Andrew Rutledge, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Abraham Sharff, Appellee, v. Ferdinand Herman, Appellant.
    Gen. No. 22,684.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action of forcible detainer by Abraham SharfE, plaintiff, against Ferdinand Herman, defendant. From a judgment for plaintiff, defendant appeals.
    The decision in this case is governed by Guiseppe Elia v. Societa Mutuo Soccorso di Piane Crati, 203 Ill. App. 278.
    George A. Brinkman, for appellant.
    No appearance for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Fred C. Forster, Plaintiff in Error.
    Gen. No. 22,687.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Conspiracy, § 50

      —when evidence sufficient to sustain charge of to defraud employer. The testimony of the State held sufficient to sustain the charge beyond all reasonable doubt, under an indictment charging an employee with conspiring to cheat and defraud his employer, where the evidence showed, irrespective of an alleged confession by the defendant, that he had falsely certified to his employer his receipt of certain goods, whereupon his employer, in reliance upon the truth of such certification, had paid to defendant’s co-conspirator in the indictment a certain sum of money in payment for such goods which were never received.

      Error to the Criminal Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied and additional opinion filed March 26, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Fred C. Forster, defendant, charging the defendant in three counts in the indictment with a conspiracy with one John Edison to cheat and defraud the National Lead Company out of the sum of $506.08, and in three other counts with obtaining money by false pretenses by the practice of a confidence game. From a judgment on conviction under the conspiracy counts and sentence to two years’ imprisonment in the penitentiary and fine of $1,000, defendant brings error.
    Cruice & Langille, for plaintiff in error; Daniel L. Cruice, of counsel.
    Maclay Hoyne, for defendant in error; Alexander E. Arkin, 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 Holdom

delivered the opinion of the court.

2. Criminal law, § 526 —when errors are harmless. The record in a prosecution for conspiracy held to disclose no prejudicial error in the admission or rejection of evidence nor any prejudicial remarks of the court or counsel, where the evidence as to defendants guilt was very convincing.

3. Criminal law, § 491*—what points and arguments may not he made in petition for rehearing. New points and new arguments are of no avail in a petition for rehearing in a criminal case.


text:
    J. V. Kinsman, Appellee, v. Brunswick-Balke-Collender Company, Appellant.
    Gen. No. 22,691.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by J. V. Kinsman, plaintiff, against Brunswick-Balke-Collender Company, a corporation, defendant, to recover damages for injuries to plaintiff’s automobile from a collision with defendant’s automobile. From a judgment for plaintiff for $87.25, defendant appeals.
    This case is analogous to and is governed by the principles set forth in the case of Gardner v. Ben Steele Weigher Mfg. Co., 142 Ill. App. 348.

      F. J. Canty, for appellant.
    Litzinger, McGurn & Beid, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Peter Dahlgren, Appellee, v. Louis Israel and Isaac Israel, Appellants.
    Gen. No. 22,696.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action of the fourth class under the Municipal Court Act, in tort, by Peter Dahlgren, plaintiff, against Louis Israel and Isaac Israel, defendants. From a judgment for plaintiff for $1,000, defendants appeal.
    The statement of claim set forth that certain goods of the value of $1,485.66 were stolen, and plaintiff waived the excess over $1,000 so as to bring the action within the fourth class.
    John M. Grimes, for appellants.
    Walter J. Miller, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1252 —when defendants cannot com/plain of action of plaintiff in minimising amount of claim. A plaintiff has the right to choose his forum and to minimize for jurisdictional purposes the amount of his claim, and the defendants cannot be heard to complain on that ground.

2. Appeal and error, § 1420*—when error is not reversible. An error, to be reversible, must be injurious in some way to the interest of the party assigning same, and if no harm has resulted therefrom a court of review will not reverse for mere matters of form which lack substance affecting substantial rights.

3. Municipal Court of Chicago, § 28*—when objection to jurisdiction may not be raised. An objection that the court had no jurisdiction of a fourth-class case under the Municipal Court Act because the actual value of the goods involved in the case exceeded the jurisdictional amount of $1,000, where the plaintiff, however, had limited his right bf recovery to that amount and had waived the balance, cannot be raised for the first time on review.

4. Trial, § 45*—when remarks of court are not erroneous. In a tort action to recover the value of stolen goods, where the court stated: “The Criminal court is still located over on the North side, and if I detect any perjury in the case the person who testifies falsely is going over to the North side to answer for it,” held that such language could not be construed as injurious to the defense or as having influenced the verdict contrary to the merits of the case, as the remarks were entirely impersonal, of a general character, and without reference to any particular witness, and were justified as a precautionary measure from the character of some of the witnesses as disclosed by the evidence.

5. Carriers—when evidence is sufficient to sustain findings in action to recover value of stolen goods. The evidence held sufficient to establish that the plaintiff was a common carrier and that the goods in question were sufficiently identified and to show their value in an action in tort to recover the value of stolen goods.

6. Trial, § 261*—when correction of sealed verdict after disbandment of jury is not error. Where the jury in a sealed verdict in an action in tort against two defendants assessed the damages at a certain sum and was complete and in due- form up to and including such assessment, and then followed same by undertaking to apportion the amount each defendant should contribute towards the payment of such sum, held that the court might properly have stricken out such apportionment clause of the verdict as surplus-age. and no error was committed in the court having the jury reform the verdict, upon their reassembling after disbandment, by eliminating that clause from the verdict before it was recorded.

7. Trial, § 267*—controlling effect of recorded verdict. It is the recorded verdict which controls.


text:
    James Goggin, Appellee, v. Margaret A. Collins, Appellant.
    Gen. No. 22,701.
    (Not to be reported in full.)
    Abstract of the Decision.
    Building and construction contracts, § 61

      —when issuance of certificate by architect is fraudulent and not binding. In a suit for a mechanic’s lien, based upon a contract providing that payment should be made to the contractor upon the architect’s certificates as the work progressed and that the architect’s final certificate should be conclusive on the parties, where the architect had written to the contractor a letter stating that his work was unsatisfactory and inclosed an account charging the contractor with a certain amount for inferior work and for delay at a rate provided in the contract, and thereupon the building was turned over to the owner and the architect settled with and discharged, held that a subsequent certificate issued by the architect to the contractor for a certain amount as due from the owner to the contractor was a fraud upon the owner and not binding upon her.

      Appeal from the Circuit Court of Cook county; the Hon. David P. Matchett, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Suit by James Goggin, complainant, against Margaret A. Collins, defendant, for a mechanic’s lien. From a decree establishing the lien for the sum claimed, eight hundred dollars, defendant appeals.
    Comerford & Cohen, for appellant.
    Carl O. Beroth, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Alleanza Italiana, Appellant, v. Carmela Papa, Tarquinius di Bernardino et al., Appellees.
    Gen. No. 22,708.
    1. Judgment, § 360

      —when may' not he collaterally reviewed. A judgment which is undisturbed by appeal or writ of error is a verity and binding upon the parties, and cannot be collaterally reviewed in equity, where the court’s jurisdiction is not attacked either as to the parties or the subject-matter or as to fraud, accident or mistake, or as unconscionable, and all parties were before the court and heard both before and after the judgment.
    2. Judgment, § 318*—when equity will not relieve against. "While a court of equity will relieve against a judgment procured by fraud, accident or mistake, no aid will be extended merely for errors intervening in the progress of the cause or the entry of the judgment.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    John De Graizia, for appellant.
    A. G. Digits, for appellee Carmela Papa.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The bill in this case is called a bill of interpleader and is before this court for the, second time. The former appeal was from an interlocutory injunctional order, which we affirmed. The facts necessary to a proper understanding of the case are sufficiently stated in the opinion of the court on the prior appeal, general number 22,508 to which we now refer without repeating them. [199 Ill. App. 401.]

Since the filing of the mandate of this court in the trial court complainant amended its bill, the most material part of which consisted in the setting forth in haec verba of its affidavit of meritorious defense filed in the Municipal Court in the suit of Carmela Papa against complainant, which on motion was stricken from the files,, and the judgment sought to be enjoined rendered against it. The other amendments in no way affect the rights of the parties as they stood under the bill as originally filed. To the bill as amended the defendants Papa and the two Johnstons interposed demurrers. The remaining defendant having answered the original bill, his answer was on motion allowed to stand as an answer to the bill as amended. The demurrers were sustained, and complainant electing to stand by its bill as amended, the same was as to said demurring defendants dismissed for want of equity.

The main purpose sought to be attained by complainant through its bill is to perpetually enjoin the enforcement of the judgment obtained against it in the Municipal Court.

At the root of this case and controlling its decision lies the question of the right "of complainant to have the collection of the judgment of the Municipal Court enjoined or its enforcement interfered with. The judgment remains in the Municipal Court undisturbed by appeal or writ of error. The defenses interposed by complainant have been adjudicated against it. The rulings of the court in that trial cannot be attacked collaterally or reviewed by the processes of equity. The judgment is verity and binding upon the parties and cannot be collaterally disturbed. There is no challenge as to the court’s jurisdiction of either the parties or the subject-matter of the suit. Neither is it contended that the judgment was procured by fraud, accident or mistake. Nor can it be said to be unconscionable, for all the parties to the judgment were before the court and were heard in their several interests both before and at the time the judgment was entered. The claims of the parties and their rights were made known to complainant by the pleadings. Two courses were open to it—one to defend the suit in the forum in which it was brought, the other to have filed a bill of interpleader before adjudication of the rights of the parties in the suit at law and rendition of judgment. Having chosen to defend the suit at law, the unreversed judgment in that suit obtained is not subject to attack in a proceeding in equity. Another difficulty environing complainant lies in the fact that it is not an independent stakeholder. It is interested in the fund in dispute, and is asking that a decree be entered enjoining the collection of the Municipal Court judgment constituting that fund, and that some of the defendants be ordered to pay its costs and solicitor’s fees. In its essence this is not an interpleader action. It is an attempt to avoid the payment of a judgment obtained with jurisdiction of the parties and the subject-matter. This cannot be done. While a court of equity will relieve against a judgment procured by fraud, mistake or accident, no aid will be extended merely for errors intervening in the progress of the cause or the entry of the judgment. Central Stock & Grain Exchange v. Pine Tree Lumber Co., 140 Ill. App. 471; West Chicago St. R. Co. v. Stoltzenfeldt, 100 Ill. App. 142; Calman v. Stuckart, 70 Ill. App. 310; Gibbons v. Bressler, 61 Ill. 110; Palmer v. Bethard, 66 Ill. 529; Ames v. Snider, 55 Ill. 498; West Chicago Park Com’rs v. Riddle, 151 Ill. App. 487.

The answer of defendant di Bernardino was, on the initiative of the chancellor, stricken from the files and the bill was dismissed as to the answering defendant for want of equity. Of this order no one is complaining.

The decree of the Superior Court sustaining the demurrer, striking the answer of the answering defendant from the files and dismissing the bill as amended for want of equity is affirmed.

Affirmed.


text:
    Elizabeth Baxter, Appellee, v. Rothschild & Company, Appellant.
    Gen. No. 22,712.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook couuty; the Hon. Lookwood Honobe, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by Elizabeth Baxter, plaintiff, against Rothschild & Company, a corporation, defendant, to recover damages for personal injuries sustained by the plaintiff while a customer in the building wherein the defendant was carrying on a commercial business. From a judgment for plaintiff for $2,500, defendant appeals.
    P. L. McArdle and Zimmerman & Garrett, for appellant.
    Le Bosky & Levine and Edward Maher, for appellee.

      Abstract of the Decision.
    1. Master and servant, § 856

      —when relation of servant and not of independent contractor exists. Where a painting contractor in the performance of his contract in the interior of a building placed a heavy canvas on the floor in front of the elevators of the building to serve as a drop cloth, the building being at the time in possession and use of the defendant in its business, and a customer of the defendant tripped on the canvas in getting out of an elevator and was injured, held that such contractor was not an independent contractor hut was a servant of the defendant and his negligence was that of the defendant, in an action to recover damages for such injuries.
    2. Accord and satisfaction, § 10*—when question for jury. In an action against several defendants to recover damages for injuries sustained by the plaintiff, where certain of the defendants were dismissed from the case upon payment by them to the plaintiff of a certain sum in consideration of the plaintiff giving them a covenant not to prosecute, held that the question whether this was an accord and satisfaction to and a release of all the defendants was properly left to the jury, and that they might properly find that the money received was an undertaking not to prosecute and was not in settlement of the case.
    3. Appeal and error, § 1542*—when instruction on amount of recovery is not reversible error. Where, after the jury in a personal injury action had retired, the court at their request instructed them in writing that the ad damnum in the case was the lesser amount named in the additional counts instead of the greater amount named in the amended declaration, held that such instruction was not reversibly erroneous.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Margaret Hudson, Appellee, v. Merchants Reserve Life Insurance Company, Appellant.
    Gen. No. 22,716.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 164

      —when attorney is not privileged from testifying. An attorney for a party is not privileged from testifying as to a communication made by him and such party to a third party.
    2. Witnesses, § 169a*—when privilege is waived by party. A party waives the privilege of a communication between himself and attorney by testifying in relation to it.
    3. Evidence, § 331*—when parol admissible. A receipt given for the payment of money may be explained orally.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Margaret Hudson, plaintiff, against Merchants Reserve Life Insurance Company, defendant, to recover on two life insurance policies for $1,000 each in which the plaintiff was the beneficiary. From a judgment for plaintiff for $1,667, defendant appeals.
    Archibald A. McKinley and Luther F. Binkley, for appellant.
    Litzinger, MoGurn & Reid, for appellee. *

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Christian Johnson, Appellee, v. Paul F. P. Mueller, Appellant.
    Gen. No. 32,723.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 685

      —when evidence is sufficient to show that accident to servant resulted from, failure to furnish safe place to work. The evidence held sufficient to warrant a finding that the accident to the plaintiff resulted from defendant’s negligence in failing to furnish plaintiff a safe place in which to work, in an action to recover damages for personal injuries sustained by plaintiff while at work for defendant.
    2. Master and servant, § 721*—when fellow-servant relation is question of fact. The question as to who was a fellow-servant of the plaintiff held under the evidence to be one of fact.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by Christian Johnson, plaintiff, against Paul F. P. Mueller, defendant, to recover damages for personal injuries sustained by the plaintiff by the falling upon him of a shore while he was engaged in wedging certain other shores near by. From a judgment for plaintiff for $2,000 on remittitur, defendant appeals.
    An earlier opinion on a prior appeal appears in Johnson v. Mueller, 192 Ill. App. 422.
    Landon & Holt, for appellant; Robert N. Holt, of counsel.
    Alexander H. Heyman, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    George W. Bernstein, G. Edwin Bernstein and Horace W. Bernstein, trading as George W. Bernstein & Sons, Defendants in Error, v. Chicago Title & Trust Company, Conservator of the Estate of A. N. Waterman, Plaintiff in Error.
    Gen. No. 22,109.
    Bills and notes, § 434

      —when exclusion of evidence as to failure of consideration is erroneous. In an action by the payees of a note against the maker where the defendant pleaded a failure of consideration by reason of plaintiffs’ failure to assign a certain claim for which the note was given, the refusal to admit proof of a letter by which the note was delivered to the plaintiffs and accompanying which was a written assignment of the claim for plaintiffs’ execution, and of a copy of such assignment, and that such assignment was not executed, held to be reversible error, as such proof tended to support the defense, and the note itself was produced in evidence.
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 14, 1917.
    Glenn E. Plumb and James McKeag, for plaintiff in error.
    F. N. Wood, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This was a suit by the payees of a note against the maker thereof. The defense was failure of consideration by reason of the failure of plaintiffs to assign a claim for which the note was given. The note was delivered to payees by mail, the accompanying letter stating that the note was in payment of an assignment of a claim and that a written assignment was inclosed for plaintiffs’ execution. Proof was adduced that the letter was mailed and contained both said note and said assignment, and that the assignment was never executed. That the letter reached the hands of plaintiffs is manifest from the fact that they produced it on notice at the trial.

The court, however, rejected proof of the letter and of a copy of the assignment that was not produced, and struck out proof of the fact that the assignment was never executed. The rejected and stricken evidence together clearly tended to establish the defense pleaded and should have been received.

Defendants in error seek to justify the exclusion of the letter on the ground that it was not correspondence between the parties to the suit as it was neither addressed to the payees nor signed by the maker, and on the ground that there was no proof that Hudson, who signed the letter, had authority to write it. Claiming lawful delivery of the note, as they must to maintain their suit, and not denying the means by which it was delivered, plaintiffs are in no position to question either the authority or means by which they received the note. The inconsistency of such a position is obvious.

Both the letter and copy of assignment tended to prove the defense and were improperly rejected. For such errors the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Barnes delivered

text:
    I. Muller, Defendant in Error, v. L. Walensky and H. Rabinovitz, Plaintiffs in Error.
    Gen. No. 21,551.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 13

      —when striking of affidavit of merits from files is erroneous. In an action in the Municipal Court to recover against the makers of a promissory note, where the defendants filed an affidavit of merits pleading a total failure of consideration and stating, in substance, that the note was given for work of a specific kind to be done, that was never performed, held that the striking of such affidavit from the files was erroneous, especially under the liberal form of pleading in the Municipal Court, and that the defendants were entitled to make their defense upon the facts pleaded.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by I. Muller, plaintiff, against L. Walensky and H. Rabinovitz, defendants, to recover upon two promissory notes executed by defendants. From a judgment for plaintiff, defendants bring error.
    H. J. Rosenberg, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes delivered

the opinion of the court.


text:
    S. S. Borden Company, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 21,965.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when statement of claim, in action for mistransmission of telegram is defective. Where statement of claim alleged plaintiff’s purchase of a carload of poultry from a certain company at Milan, Tennessee, and that plaintiff had instructed such company to ship to Pittsburgh, Pennsylvania; that plaintiff delivered to defendant a telegram addressed to the company at Milan, Tennessee, saying: “Bill car poultry Grant street”; that defendant transmitted the telegram to Martin, Tennessee; that the company was “instructed by the party receiving the telegram to ship said poultry to Grant street, Chicago,” and that the car was shipped to Chicago, and plaintiff was compelled to forward it to Pittsburgh, causing damages complained of, held that such statement failed to state the essential elements of a tort on the part of the defendant, as the words “the party,” construed most strongly against the plaintiff, reasonably supported the inference that the message was delivered in proper form but that some other than the defendant’s agent was responsible for its misinterpretation, and also that such statement was defective in omitting any averment as to defendant’s business or as to a duty owing from defendant to plaintiff.

      Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Rehearing denied March 31, 1917.
    Statement of the Case.
    Action by S. S. Borden Company, plaintiff, against the Western Union Telegraph Company, a corporation, defendant, in tort, to recover damages for mistransmission of a telegram. From a judgment for plaintiff, defendant brings error.
    West & Eckhart, for plaintiff in error.
    Walter H. Eckert, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Municipal Court of Chicago, § 19 —when judgment by default based upon defective statement of claim should be vacated. A judgment based upon a statement of claim in a tort action which fails to state the essential elements of a tort cannot stand, even where entered after defendant’s default, and should be vacated on motion.


text:
    W. B. Crane and O. F. Crane, trading as W. B. Crane & Company, Defendants in Error, v. Tooker Storage & Forwarding Company, Plaintiff in Error.
    Gen. No. 22,049.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action in replevin by W. B. Crane and O. F. Crane, trading as W. B. Crane & Company, plaintiffs,.against Tooker Storage & Forwarding Company, defendant, to recover lumber which plaintiffs shipped from a foreign State to themselves in Chicago. From a judgment for plaintiffs for possession and nominal damages, defendant brings error.
    The initial carrier deviated from plaintiffs’ instructions in routing it by other connecting carriers than they specified, by reason of which plaintiffs declined to .pay the accrued charges of transportation, whereupon the lumber was stored by the last or next to the last carrier with defendant, a licensed public warehouseman, who advanced the accrued railroad charges and duly notified plaintiffs of the receipt of the property and of the amount of the charges. Plaintiffs again refused to make payment and brought replevin for the goods with the result stated.
    Abstract of the Decision.
    1. Warehousemen, § 11

      —when entitled to lien for advanced transportation charges. A lien for transportation charges on a shipment of goods through connecting carriers advanced by a public warehouseman with whom the goods were stored by the last carrier upon the shipper’s refusal to pay such charges, held to exist in such warehouseman, notwithstanding the initial carrier misrouted the shipment by other connecting carriers than those specified by the shipper.
    2. Carriers, § 209*—what need not he done by connecting carrier in order to preserve lien for charges. A connecting carrier is not bound to inquire into the initial carrier’s authority as to routing in order to preserve a lien for its charges.
    3. Carriers, § 186*—what is authority of initial carrier as to forwarding of shipment. While an initial carrier is the agent of the owner or shipper, it is clothed with apparent authority to forward a shipment by any ordinary or usual route.
    4. Carriers, § 195*—what is authority of connecting carrier as to payment of accrued charges. A connecting carrier becomes an agent of the owner or shipper of goods transported and has implied authority to pay for him previously accrued charges of transportation,
    5. Warehousemen, § 25*—when replevin lies to recover stored goods. Replevin will not lie for goods held under a lien for transportation charges advanced by a warehouseman without plaintiff first making or tendering payment of such charges.
    Bull & Johnson, for plaintiff in error.
    W. Tudor Ap Madoc, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Etha Gallay, Defendant in Error, v. August Mathis, Plaintiff in Error.
    Gen. No. 22,077.
    1. Appeal and error, § 764

      —when record on former appeal filed as additional record will he stricken from files. The record in a case on a former appeal which is filed as an additional record will he stricken from the files by the court on its own motion, as the court cannot look into the record of an independent proceeding to determine questions arising wholly on the record of the judgment as to which writ of error is filed.
    2. Toby, § 84*—when swearing of to try issues in tort action is not ground for reversal. In a tort action where the defendant was defaulted, the swearing of the jury “to try the issues” instead of swearing them merely to assess damages, held not to he ground for reversal.
    3. Appeal and ebbob, § 1332*—when presumed that notice of default or of assessment of damages was given. In a tort action where the defendant was defaulted, and service of notice of the default or of assessment of damages is not recited in the record, it must be presumed that such notice was given, as such recitation is not an essential part of the record.
    4. Appeal and ebbob, § 788*—when question of notice of default or of assessment of damages is not presented for review. The question of notice of a defendant’s default or of assessment of damages in a tort action is not presented for review where the proceedings are not preserved in a bill of exceptions or otherwise.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beetles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 20, 1917.
    Brundage, Landon & Holt, for plaintiff in error.
    Jacob Levy, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error brings for review a judgment entered in default of an affidavit of merits or defense. In addition to the statutory record thereof we allowed plaintiff in error to file herein the record in case No. 20,797, Gallay v. Mathis, 195 Ill. App. 170, where this court reviewed an order entered on a petition filed under section 21 of the Municipal Court Act (J. & A. ¶ 3333) to vacate the judgment here under review. It was held in that case that the matters here assigned as error could not he reviewed on cross errors under the writ of error in that case, and it is equally true that we cannot look into the record of those independent proceedings to determine the questions before us which arise wholly upon the record of said judgment; hence, the additional record will be stricken on our own motion.

The record of the judgment under review shows that the plaintiff in error was defaulted in a tort action for failure after his appearance to file within the time prescribed by order of court an affidavit of defense or merits and that two days later judgment for $1,000 was entered against him on an assessment of damages by a jury sworn “to try the issues.’’ The errors assigned relate to the form of oath administered to the jury and to alleged failure to give notice either of taking default or of the assessment of damages.

It is true that the entry of default left no issues to be tried and that the jury should have been sworn merely to assess the damages. But we do not deem the informality of the oath as ground for reversal. While authorities are cited in Elia v. Bavuso, 187 Ill. App. 487, to sustain a different conclusion, the reasoning of the opinion in Roberts v. Swearengen, 1 Hard. (3 Ky.) 121, seems to us more sound. The court there said:

“But this case, standing upon a judgment by default and writ of inquiry, was an acknowledgment of the plaintiffs’ right to recover something, so that it was not necessary that a jury should have been required to do more than find the amount to which the plaintiffs were entitled; and that having been sworn to do more than ought to have been required of them, cannot vitiate that which they have properly done, and must as necessarily have done under the oath to try the issue, as the oath to inquire of damages.”

As to the question of notice, we do not think that it arises upon this record. If notice „was required we think it would be presumed under the rule which requires us to indulge the presumption of regularity of procedure when there is nothing in the record to indicate the contrary. We cannot assume that notice was not given from the fact that service thereof is not recited in the .record. A recitation thereof is not an essential part of the record. No proceedings are preserved in this record by a bill of exceptions or otherwise to indicate that service, if required, was not given, hence questions as to notice are not fairly before us for consideration. We find no reversal of error in the record.

Affirmed.


text:
    Mary Szulerecki, Defendant in Error, v. Julius Oppenheimer, Plaintiff in Error.
    Gen. No. 22,094.
    1. Landlord and tenant, § 155

      —how character of estate is determined. What estate passes by a lease depends upon the intention of the parties to be collected from the whole lease, from their situation, and from the subject-matter of the contract.
    2. Landlord and tenant, § 446*—when lease is terminated by destruction of building. In the absence of any special provision on the subject in a lease of a portion of a building as to continued tenure of the tenancy after total destruction of the building, no interest in the land would pass under the lease and such destruction would terminate it.
    3. Landlord and tenant, § 446*—when lease conveys interest in land continuing after destruction of building. Where a lease of a portion of a building provided that the lessor should within a certain time after any loss, damage or destruction of the building or leased portion thereof which rendered same untenantable restore the same, and if he did not the lessee might at his option terminate the lease, held, that such lease conveyed an interest in the land and continued in force after any such loss, damage or destruction until the lessee exercised his option and terminated it.
    4. Landlord and tenant, § 446*—what constitutes total destruction of building. There is a total, destruction of a building by fire authorizing the termination of a lease of a portion of the building by the lessee under the provisions of the lease where only parts of the walls are left, which subsequently have to be razed, as the property lost thereby its character as a building.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed March 20, 1917.
    Rosenthal & Hamill, for plaintiff in error; Lessing Rosenthal and Harry Markheim, of counsel.
    Austin J. Rooney, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error presents for review a judgment in a forcible detainer suit for possession of premises described as “4708 South Ashland avenue, Chicago.” The defendant (plaintiff in error) conducted a department store in the buildings on three adjoining lots on said avenue. The middle lot is twenty-five feet wide and about one hundred and twenty feet deep from street to alley. Defendant occupied the same under a lease from plaintiff (defendant in error) for the term from May 1,1908 to April 30,1918. The other two lots and the buildings thereon were owned by defendant. The front part of the building on the leased lot was of brick and mill construction, three stories high, and covered the fifty feet from the front line. The rear of the building was of frame construction one story high and extended beyond the brick portion about sixty feet to within about ten feet of the alley. There was a basement under the brick construction, but none under the frame. December 24, 1914, the buildings on these lots were destroyed by fire. It left only parts of the brick walls of the leased building, which afterwards had to be razed, but most of the foundations and basement remained intact. Defendant occupied the entire first floor of the three-story part and the basement thereunder and the entire frame portion. Another tenant occupied the second story, but the terms of his lease are not disclosed. The record indicates that he leased only the rooms.

Relying on provisions in the lease hereinafter set forth, defendant served plaintiff with a written notice on April 24, 1915, setting forth the same and stating that unless plaintiff restored the building defendant might elect to restore the same at plaintiff’s expense. Plaintiff refused to make the restoration and demanded that defendant vacate the premises. Defendant then began erection of new buildings on his lots and in September, 1915, proceeded to erect over the entire leased lot between the walls of his two buildings a one-story building of brick and terra cotta exterior, of slow burning, mill construction, capable of supporting two additional stories and of being used for the same purposes as the building replaced if the other stories were added. The same foundations were used except where they had been condemned by the city. The roof rested on iron posts and girders, and new walls were erected in front and rear but not on the sides. No rent was paid after the fire. On October 13, 1915, about two weeks after the restored building was under roof, plaintiff began the forcible detainer suit.

The premises demised were described in the lease as “the entire first floor and basement of the three-story brick building known as No. 4708 South Ashland avenue.” The executed instrument was on a printed form that contained the following clause:

“In case said premises shall be rendered untenantable by fire or other casualty, the lessor may, at his option, terminate .this lease, or repair said premises within thirty days, and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine.”

This clause was ruled out with red ink and there was substituted in its place in handwriting the following paragraph, the proper construction of which is the main question before us, namely:

“In the event that said demised building, or any part thereof, shall be rendered untenantable by fire or other casualty, or be damaged, condemned or taken by the public authorities, the lessor shall, and agrees to, restore the same within ninety days after any such loss, damages or destruction, and the lessee shall not be obligated to pay any rent for the part of the demised premises .rendered untenantable while the same are not tenantable. In the event of the lessor’s failure to restore the same, as aforesaid, the lessee may at his option but without prejudice to his other remedies terminate this lease.”

Defendant among other things covenanted to keep the premises in good repair and to keep them “and appurtenances, including catch basins, vaults and adjoining alleys, in a clean and healthy condition,” and to remove'the snow and ice from the roof when necessary, and clean the snow and ice from the sidewalks in front of said premises.

The decisive question presented upon the foregoing facts is whether the lease to plaintiff in error conveyed an interest in the land. The court was requested, but refused, to hold in effect that the lease was not terminated ipso facto by such destruction of the building. What estate passed by the lease depended of course upon the intention of the parties to be collected from the whole lease, from their situation, and from the subject-matter of the contract. (2 Bac. Abr. Lease, K.; Winton v. Cornish, 5 Ohio 477; Shawmut Nat. Bank v. Boston, 118 Mass. 125; Crocker v. Hill, 61 N. H. 345.) We would find little difficulty in gathering its intention but for the provision in the lease preserving to the lessee the option to terminate it on failure of the lessor to restore the building in the event of its destruction. Without such provision the facts would seem to bring the case within the principle that a lease only for portions of a building will be terminated on its total destruction. In such a case the theory is that no interest in the land passes and therefore there is nothing after the destruction of the building upon which the lease can operate. The principle is stated on varying facts in Winton v. Cornish, supra; Shawmut Nat. Bank v. Boston, supra; Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514; Smith v. McLean, 123 Ill. 210; Stockwell v. Hunter, 11 Metc. (Mass.) 448.

The specific description of the premises demised in the lease at bar as “the entire first floor and basement of the three-story brick building known as No. 4708 South Ashland avenue” would, in the absence of a provision indicating, a different intention, seem to import a demise of merely a portion of the building. And we do not think that the covenant of the lessee to keep the "appurtenances, including catch basins, vaults and adjoining alleys, in a clean and healthy condition” and to remove the snow and ice from the roofs and the sidewalks in front of the premises, or the personal covenant of the lessor to restore the demised building in case of its destruction, would alone or together, without the aid of other provisions, import a different intention.

But we are unable to reconcile the clause expressly giving to the lessee the option to terminate the lease in the event of the lessor’s failure to restore the building, with an ipso facto termination of the lease on the destruction of the building or the failure of the lessor to perform his covenant. Without a demise of any interest in the land the lease would unquestionably terminate on the destruction of the building, or the refusal or failure of the lessor to restore it, and the lessee would be relegated to his remedy for a breach of the lessor’s covenant to restore the building, as was held in the Shawmut case, supra.

But was it intended that the lease should be so terminated? If so, the clause in question is wholly inoperative and meaningless. If, on the contrary, the option gave the lessee the right to continue the lease, then of necessity there was demised an interest in the land, as otherwise there would be nothing left upon which the lease could operate. Following the general rule of construction we must, if possible, give effect to every sentence. “To this end, in the construction given, one part must'be so construed with reference to the other portions that every part must stand, and, if it can be prevented, no part of it, either in words or sentences, shall be regarded as superfluous or void.” (John Morris Co. v. Southworth, 154 Ill. 118.) What meaning, then, shall be given to the provision in question? It gives lessee an option to terminate the lease. That implies a right of choice, and the only alternative is the continuance of the lease. Or, to state it another way: A lease is implied for the full term, notwithstanding the building shall be rendered untenantable, unless the lessee elects to terminate it on the failure of the lessor to restore the building. If, on the other hand, the lease is terminated ipso facto, then the lessee has nothing with respect to which he can exercise an option. As the option was expressly given and the exercise of it is not incongruous with any other part of the lease, the provision in question is capable of only one construction, namely, that if the lessee did not exercise his right to terminate the lease, then it continued in force. If the words in the provision were at all ambiguous, we might resort in aid of such construction to the fact that this provision was substituted for a printed provision that gave the lessor instead of the lessee the option to terminate the lease under similar circumstances, and expressly provided that it should terminate on the lessor’s failure to repair or upon the destruction of the premises. The substituted clause imports a very different intention, and we fail to see how it can be given effect otherwise than by holding that the lease continued in force on the failure of the landlord to restore the building unless the lessee exercised his option to declare it terminated. Had the lessor performed his covenant by restoring the premises, can it be doubted the lessee would have been obligated to pay rent for the full term of the lease except while the building was untenantable? And, if he failed to restore the building and the lessee did not elect to terminate the lease, can it be doubted that the latter had a right to make use of the premises for the purpose designated in the lease, namely, “for mercantile purposes”?

It appears that the lessee has undertaken to restore the premises, so far as he might enjoy the use thereof, as contemplated by the lease, leaving the building capable of being restored to its former uses, if the landlord chooses to effect further restoration. But as we view it, no questions pertaining to the character of the building are before us for consideration. The question here is merely one of the right of possession. If that is in defendant, as we hold, any other controversy as to the extent of plaintiff in error’s right to restore the building does not arise in this proceeding.

We recognize that the question before us is not free from doubt. No other case brought, to our attention presents this precise question. But we fail to see what other construction can be given to the provision in question, or that it can be given effect except the lessee alone had the right to terminate or continue the lease on failure of the lessor to restore the building. Hence, we think the lease imports an intention to demise an interest in the land.

There was no controversy over the essential facts. The testimony differed as to how much of the walls of the destroyed building was left standing. But whichever state of facts on that question be accepted, there was in law a total destruction of the building, “being such as destroyed the leased property in its character as a building.” (Humiston case, supra, p. 520.) This was manifestly the view of the court below as indicated by its rulings on the propositions of law submitted to it. But a proper holding on all the propositions of law would have required the court to give a different construction to the lease and to find the right of possession in the defendant as a matter of law. The court’s finding of the right of possession depended not upon controverted facts but a legal construction of the lease. Its judgment, therefore, will be reversed.

Reversed.


text:
    Edward Marks and Frank M. McKey, Trustee, Plaintiffs in Error, v. Nathan T. Brenner, Defendant in Error.
    Gen. No. 22,101.
    1. Corporations, § 218*-—when stockholder is not liable for unpaid subscriptions of other stockholders. On a creditor’s bill and intervening petition by the trustee in bankruptcy of a corporation, each seeking enforcement of liability for unpaid stock subscriptions, where a certain subscriber had paid in full for the stock subscribed by him and no other stock had been transferred to him on the books of the corporation and there was nothing on the books to show his ownership of any other stock, held, that such subscriber was not liable for the unpaid subscriptions of other stockholders but such liability attached to the holders of the legal title of su'ch other stock only, and that the courts would not look beyond the registered stockholder nor inquire into what equities he held.
    2. Corporations, § 231

      —when evidence is insufficient to show making of stock subscriptions by agents of stockholder. Evidence held insufficient to show that certain unpaid stock subscriptions were made by certain parties as agents for the defendant, in a suit seeking to hold the defendant liable for such unpaid subscriptions.
    3. Corporations, § 218*—when transferee of stock is liable for corporate debts and unpaid balances of subscriptions. The transferee of stock in a corporation is not recognized as a stockholder nor chargeable with the corporate debts or unpaid balances of subscriptions until the transfer is made on the books of the corporation or a contractual relationship between him and the corporation otherwise established.

      Error to the Superior Court of Cook county; the Hon. Denis E. Suimvan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Stedman & Soelke, for plaintiffs in error.
    Goldzier, Rodgers & Froehuoh, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error brings for review a decree dismissing for want of equity, as to defendant in error, Brenner, a creditor’s bill and an intervening petition by the trustee in bankruptcy of Ft. Sheridan Distilling Company, a corporation, each seeking enforcement of liability for unpaid subscriptions to said company’s capital stock against the subscribers therefor, including said Brenner, the only defendant served with process.

The decree approved an adverse report of the master in chancery to whom the cause was referred to take evidence and report his conclusions thereon.

The stock of the company, consisting of 1,000 shares of the par value of $100 each, was subscribed for by five persons, three of them, Max Rivitz, Hiram Rivitz and Simon Nickman, subscribing for 250 shares each, and Brenner for 100 shares and one Saperston 150 shares. The charter states, and the commissioners who opened subscriptions reported, that $70,000 was paid in and that stock for the remaining $30,000 was not to be issued to the several subscribers therefor until paid for. The commissioners also reported that property appraised at the actual cash value of $60,000 was accepted in payment for 600 shares of the stock. In payment of said property the directors authorized the issuance of said 600 shares, 200 each to the Rivitzes and Nickman, but the certificate issued to each of them called for 250 shares. Brenner paid for his 100 shares, thus making the $70,000 paid in capital. Saperston’s stock was never issued nor paid for and no payment was ever made for the 150 shares in excess of 600 paid for by said property, issued to the Bivitzes and Nickman.

The real question at issue was whether Brenner was liable for subscription to any other stock than that which was originally issued to him. He was not registered on the books of the company either as a subscriber or transferee of any other stock than the 100 shares that he subscribed and paid for. But it was sought to hold him liable for other stock than that registered in his name on the books of the company, first, on the theory that the 150 shares issued to Nickman, Max and Hiram Bivitz in excess of what they paid for, and the 150 shares subscribed for by Saperston, were subscribed for by them respectively as the agents and for the benefit of said Bivitzes, Nickman and Brenner jointly; and secondly, that Brenner became liable for the unpaid subscription of Nickman and the Bivitzes because of an agreement on his part to hold them harmless therefor made after he had knowledge that the property so turned in for their stock was not worth $60,000 and was fraudulently overvalued.

The main proof adduced to support such theories consisted (1) of a bill in chancery previously filed by Brenner against the Bivitzes charging on information and belief a fraudulent overvaluation of such property; (2) a subsequent agreement between Brenner and the Bivitzes and Nickman whereby upon certain considerations and warranted representations as to the amount of the company’s indebtedness Brenner agreed to save and keep them harmless against any and all liabilities, claims and demands that might be made against them by virtue of their stock subscriptions and against any obligations of the company; and (3) evideuce that in pursuance of said agreement the stock issued to the Rivitzes and Nickman, came into possession of Brenner or his attorneys, and was (together with the rest of the outstanding stock for which he had originally subscribed) delivered at his direction for a consideration to one Kauffman, who turned over the company’s assets to the trustee in bankruptcy. There was, however, no transfer of their stock to Brenner on the books of the company. The certificates received by him and delivered to Kauffman were the original certificates issued to the Rivitzes and Nickman and assigned by them either in blank or to said Kauffman.

Brenner’s said bill in equity was introduced in evidence on the theory that it contained admissions of the agency of the other subscribers to subscribe for his benefit. But we find no averments therein amounting to such an admission and no other proof in the record of such agency, even if it were availing in such a proceeding. Nor do we find in said bill or in any other part of the record any evidence of facts which in law cast upon Brenner liability to the creditors of the insolvent corporation for the unpaid subscriptions of stock issued to the other subscribers or any of them. Whatever liability may be enforced against him under said agreement by the other parties thereto is a question wholly aside from his statutory liability to the creditors of such corporation for their unpaid subscriptions. Inasmuch as he paid in full for all the stock he subscribed for, and no other stock of the company was transferred to him on its books and there was nothing on its records to indicate his ownership of any other stock than that he subscribed for, the court and the master properly held that he was not liable for the unpaid subscriptions hut that such liability attached to the holder of the legal title to the stock only, and that the courts would not look beyond the registered shareholder nor inquire into what equities he holds. (Thompson on Corporations, vol. 3, secs. 3192-3194; Wheelock v. Kost, 77 Ill. 296; Sherwood v. Illinois Trust & Savings Bank, 195 Ill. 112.) We think the general rule that the transferee of stock is not recognized as a stockholder nor chargeable with the corporate debts or unpaid balances of subscriptions until the transfer is made on the books of the corporation or a contractual relationship between him and the corporation otherwise established, was properly applied to the facts of the case. Cook on Corporations (4th Ed.), sec. 258; Kellogg v. Stockwell, 75 Ill. 68; Hood v. McNaughton, 54 N. J. L. 425; Brown v. Allebach, 166 Fed. 493; People’s Home Sav. Bank v. Stadtmuller, 150 Cal. 106.

Because of the inadequacy of proof to establish liability against Brenner for any of the stock subscriptions other than his own, for which he fully paid, the decree will be affirmed.

Affirmed.


text:
    George J. Cooke Company, Appellee, v. E. R. Stege Brewery et al., in the matter of the intervening petition of Vincent D. Wyman et al., trading as Wyman, Jurgens & Carpenter, Appellants.
    Gen. No. 22,119.
    (Not to be reported in full.)
    Abstract of the Decision.
    Parties, § 33

      —when petition for intervention by attorneys is properly dismissed. Where a firm of attorneys filed an intervening petition in a suit brought on a bill of interpleader to determine the right to a certain fund paid into court, claiming in such petition as assignee of the interest in said fund of one of the defendants to such suit after issue joined therein, and it appeared the petitioners were attorneys at law who had represented the assignor at a certain stage of the controversy and that one of them was his solicitor in such suit, held that the petition was properly dismissed in view of such circumstances.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Bill of interpleader by George J. Cooke Company, complainant, against E. B. Stege Brewery et al., defendants, to determine the right to a certain fund paid by complainant into court. From an order dismissing the intervening petition of Vincent D. Wyman et al., copartners, trading as Wyman, Jurgens & Carpenter, the interveners appeal.
    Raymond T. Ellis and Ragnar Oberg, for appellants.
    Simeon Straus and Ira E. Straus, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    George J. Cooke Company, Appellee, v. E. R. Stege Brewery et al., on appeal of Patrick Ahern, Appellant.
    Gen. No. 22,120.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Rehearing denied March 30, 1917.
    Statement of the Ca_se.
    Bill of interpleader by George J. Cooke Company, a corporation, complainant, against E. R. Stege Brewery and Patrick Ahem, defendants, to determine the right to certain rents paid by complainant into court. Prom a decree ordering payment of the fund, less the amount of the master’s fees to be paid therefrom, to the defendant E. R. Stege Brewery, and taxing costs other than the master’s fees against the defendant Ahem, the defendant Ahem appeals.
    The claim of the defendant E. R. Stege Brewery was predicated upon a sheriff’s deed issued upon an execution sale of the premises in controversy under a judgment for $1,605.38 recovered by it against the defendant Ahern. The latter’s claim was based upon the fact he was lessor of the premises, that he, at the time of the sale, owned an estate of homestead therein, and that such homestead was not set off to him and his equity of redemption was not then nor since worth $1,000. Ahern also filed a cross-bill praying removal of said deed as a cloud upon his title, upon which issue was formed. Such homestead estate was adjudicated in Ahern’s favor in the case of Dooley v. Ahern, 191 Ill. App. 140. Ahern’s claims were sustained by the master’s report, to which no exceptions were filed. Before entry of decree confirming such report, Ahern moved to dismiss Ms cross-Mil. The motion was deMed and decree entered, setting aside the sale and deed, vacating the satisfaction of the judgment and restoring the judgment, and directing payment of the money in the clerk’s hands, $561.55, to the defendant E. R Stege Brewery and applied upon its judgment.
    Abstract of the Decision.
    1. Homestead, § 113

      —when sale of on execution is invalid. Where the property of a judgment debtor was taken and sold on execution and a deed therefor issued to the purchaser, in which property the debtor had at the time of such sale a homestead which was not set off to him, and the value of his equity of redemption was not worth $1,000 at the time of the sale or since, held that such sale and deed were void.
    2. Interpleader, § 18*—when court may in decree establish equitable lien or trust upon fund. On a bill of interpleader and answer of the defendants, held that the court could so shape its decree as to do complete equity between the parties and fasten upon the fund in controversy any equitable lien or trust which one of the parties established, although the proprietary legal title and ownership belonged to the other.
    3. Liens, § 4*—when equitable lien on fund does not arise. Where, under a bill of interpleader as to certain rents deposited in court, one of the defendants claimed ownership of the premises as an execution creditor under a judgment in his favor against the lessor and a sale and deed thereunder which were void, and there was no averment of fact in the pleadings to support an equitable lien on the part of such defendant nor proof to establish one, held that no equitable lien would arise from the mere existence of the judgment in favor of such defendant, and the lessor would be entitled to such rent.
    Raymond Y. Ellis and Ragnar Oberg, for appellant.
    Simeon Straus and Ira E. Straus, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

4. Interpleader—when question whether mortgagee is necessary party is not presented for review. Where a bill of interpleader to determine the right to certain rent deposited in court alleged that the complainant leased the premises from and attorned to one df the defendants, the other of whom was a mortgagee, and there was no averment to the contrary in the pleadings or the proof, held that the question whether the mortgagee was a necessary party to the suit was not presented for review.


text:
    B. A. L. Thompson, Jr., Defendant in Error, v. Lucius J. M. Malmin and Laura U. Malmin, Plaintiffs in Error.
    Gen. No. 22,149.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Venue, § 10

      —when denial of motion for change of not deemed to be upon ground of want of reasonable notice. The action of the trial court in denying defendants’ motion for change of venue cannot be deemed to be on the ground of want of reasonable notice when the notice is served at two o’clock of the day before that of hthe hearing of the motion, and the parties are represented at such hearing and no longer notice is required or usually given, and there is no complaint of insufficient notice.

      Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by B. A. L. Thompson, Jr., plaintiff, against Lucius J. M. Malmin and Laura U. Malmin, defendants. From an order denying defendants’ motion for a change of venue, defendants bring error.
    Lucius J. M. Malmin, for plaintiffs in error.
    William B. Denmark, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Venue, § 24 —when denial of motion for change of is erroneous. The court cannot arbitrarily deny a change of venue where one brings himself within the provisions of the statute.

3. Trial, § 286*—when necessary to hear evidence. Entry of judgment upon issues of fact raised by the pleadings in a trial before the court without hearing evidence, held to be erroneous.


text:
    In the Matter of the Petition of Florence Ferguson Leonard, Appellee, v. Iza D. Leonard, Judgment Creditor, Appellant.
    Gen. No. 22,157.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Petition by Florence Ferguson Leonard, petitioner, to be discharged under the Insolvent Debtors’ Act against Iza D. Leonard, judgment creditor, respondent. From an order releasing the debtor, the creditor appeals.
    Morton H. Eddy and Charles F. McKinley, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Execution, § 293

      —when judgment debtor may not be released from custody. The County Court has no authority to enter an order releasing a judgment debtor from the custody of the sheriff under a writ of capias ad satisfaciendum issued upon a judgment in tort where malice was the gist of the action.
    2. Execution, § 285*—when affidavit is not required for issuanee of a capias ad satisfaciendum. Under Hurd’s Rev. St. 1913, ch. 77, sec. 62 (J. & A. If 6809), an affidavit is not required for the issuance of a capias ad satisfaciendum upon a judgment in tort.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Ohio Salt Company, Defendant in Error, v. Baltimore & Ohio Railroad Company, Plaintiff in Error.
    Gen. No. 22,181.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by the Ohio Salt Company, a corporation, plaintiff, against the Baltimore & Ohio Railroad Company, a corporation, defendant, to recover damages for the loss of a shipment of salt delivered by plaintiff to defendant as the initial carrier for transportation to Camden, New Jersey, via Cleveland, Ohio. From a judgment for plaintiff for $183.50, defendant brings error.

      Abstract of the Decision.
    1. Carriers, § 100

      —when delay in transfer of car is due to act of God. Where a carrier placed a car in transit in its yards at a transfer point for classification and transfer about seven o’clock p. m., and during that night a flood of unusual and unprecedented proportions not reasonably to be anticipated by the carrier arose and delayed the transfer of the car beyond the time of its transfer, under normal conditions about eleven o’clock of that night, until about six o’clock the next morning, held that such delay and resultant loss were occasioned solely by an act of God.
    2. Commerce, § 5*—what is effect of Carmack Amendment to Interstate Commerce Act. Since the passage of the Carmack Amendment to the Interstate Commerce Act, the special regulations and polices of particular States upon the subject of a carrier’s liability for loss or damage to interstate shipments and the contracts of carriers with respect thereto have been superseded.
    3. Carriers, § 100*—when interstate carrier is excused from liability for loss or damage to shipments. Under the federal rule as to liability of carriers for loss or damage to interstate shipments, an act of God excuses the carrier although its own negligence or delay may contribute as a remote cause of such loss or damage.
    Calhoun, Lyfobd & Sheean, for plaintiff in error; P. H. Keeney, of counsel.
    A. K. Hutchinson, for defendant in error; H. C. Lust, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Elizabeth Baab, Defendant in Error, v. Royal Life Insurance Company of Chicago, Plaintiff in Error.
    Gen. No. 22,200.
    (Not to be reported in full.)
    Abstract of the Decision.
    Insurance, § 518

      —when payment to administrator of insured operates as release from liability. Where an industrial life insurance policy provided that the insurer might make payment thereunder to the executor, administrator, husband Or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to be equitably entitled to the same by reason of having incurred expense on behalf of the insured for his or her burial, and that a receipt signed by any such party should be conclusive evidence of full satisfaction under the policy, and that the policy contained the entire contract between the parties, held that a payment made to the administrator of the insured would be a release of the insurer’s liability under such policy, notwithstanding the application for the policy, which contained no provision for naming a beneficiary, was indorsed by the insurer’s agent at the insured’s request with the name of a certain party as beneficiary.
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Elizabeth Baab, plaintiff, against the Boyal Life Insurance Company of Chicago, a corporation, defendant, to recover on an industrial life insurance . policy issued by the defendant. From a judgment for plaintiff, defendant brings error.
    Charles G. Hendricks and Louis H. Marks, for plaintiff in error.
    Robert W. Dunn, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Samuel C. Pirie et al., Plaintiffs in Error, v. Ethel Horwich, Defendant in Error.
    Gen. No. 22,230.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Elanagan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Action by Samuel C. Pirie, John T. Pirie, Gordon L. Pirie, John W. Scott, Robert L. Scott, Frederick H. Scott, Andrew McLeish and Bruce McLeish, copartners, trading as Carson, Pirie, Scott & Company, plaintiffs, against Ethel Horwich, defendant. From an order discharging the defendant upon a citation under section 64 of the amended Municipal Court Act (J. & A. 3381), for examination concerning her property after return on an execution issued upon a judgment for the plaintiffs of no property found and no part satisfied, plaintiffs bring error.
    Defendant appeared at the time specified in the citation, but failed to appear at the times to which continuances for a hearing were taken. Order for a rule upon her to show cause why she should not be held in contempt was entered. At the hearing she appeared and objected to the legality of the supplemental proceedings for the reason that the bailiff had made no personal demand on her under the execution.
    Martin J. Tergan, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Execution—when order to appear in supplementary proceedings must be obeyed. Unless there is an entire absence of jurisdiction in commanding a judgment debtor to appear in supplemental proceedings, the order must be obeyed.

2. Execution—when judgment debtor may not obtain vacation of order directing supplemental proceedings against him. A judgment debtor cannot obtain a vacation of an order directing supplemental proceedings against him by showing that the judgment or execution was irregular or erroneous.


author: Mr. Justice McDonald

text:
    Minnie Roedel et al., Plaintiffs in Error, v. Quin O’Brien et al., Defendants in Error.
    Gen. No. 21,541.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed March 20, 1917.
    Statement of the Case.
    Suit by Minnie Roedel and others, complainants, against Quin O’Brien, William E. Hatterman, both individually and as executor of the last will and testament of Friedrich Schramm, deceased, William D. Johnson, Elizabeth Stern, Frank Schramm, William Schramm, Herman Schramm, Ella Reetz, Josephine Freeh and George F. Gartung, defendants, for an accounting. From a decree dismissing the bill, on demurrer, for multifariousness, plaintiffs bring error.
    Grace F. Peter, for plaintiffs in error.
    Quin O’Brien and Munson T. Case, for defendants in error.

      Abstract of the Decision.
    1. Equity, § 146

      —when hill is multifarious. A bill is multifarious -which seeks relief in matters arising out of independent and distinct items, the improper consolidation of which would lead to confusion.
    2. Equity, § 146*—when hill deemed to he multifarious. The question whether a bill is multifarious depends upon the particular facts of each case and is one resting in the sound discretion of the court.
    3. Equity, § 146*—when hill for accounting- is multifarious. Where proceedings were instituted by certain heirs of a decedent to contest both his marriage and his will, under an agreement between them and a certain attorney that he should receive a certain portion of the property recovered if the proceedings were successful, and such proceedings terminated in a settlement agreement under which such attorney received on behalf of such heirs a certain portion of the property involved which he distributed in part to them, held that a bill filed by certain of the heirs against the other heirs and said attorney and the executor of the estate of the decedent and his attorney, seeking an accounting both as to said original agreement Under which such proceedings were instituted from said attorney and also as to said settlement agreement under which such proceedings were terminated from the executor and his attorney, was multifarious, as the several claims sought to be litigated by such bill were separate and distinct and had no relation or dependence one on the other.

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

   Mr. Justice McDonald

delivered the opinion of the court.

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