author: Mr. Justice Baker

text:
    Robert F. Summers, Appellee v. James W. Hedenberg, Appellant.
    Gen. No. 22,011.
    1. Vendor and purchaser, § 65

      —when provision in contract for delivery of warranty deed modified. A provision in a contract for the sale of real estate relative to a warranty deed being ready for delivery, held modified by another provision that it should be deposited with a title and trust company after the first two payments under the contract had been so deposited.
    2. Appeal and error, § 367*—when defense not raised in answer unavailable on appeal. Where in proceedings in equity to declare void a contract for the sale of real estate, defendant contended for the first time in the Appellate Court that complainant did not make proof of ownership, and did not, in his answer deny the averment of ownership in the bill of complaint, held the defendant could not avail himself of such matter of defense.
    3. Equity, § 156*—when defendant must set out nature of defense in answer. The rule in chancery is that a defendant is bound to apprise the complainant by his answer of the nature of the defense he intends to set up, and the defendant cannot avail himself of any matter of defense which is not stated in his answer even though it should appear in the evidence.
    4. Equity, § 431

      —when point not raised before master waived. A point which is not raised before the master by objection or exception to his report is waived.
    5. Contracts, § 164*—when parol evidence as to negotiations leading to land contract inadmissible. Where a contract for the sale of lands is plain and unambiguous, evidence as to negotiations leading up to it, in equity proceedings to declare same forfeited, is inadmissible and such evidence is properly disregarded by the master.
    6. Vendor and purchaser, § 151*—when tender of deed excused by failure to comply with contract. Defendant’s repeated failures to comply with a contract whereby he had agreed to purchase real estate from complainant, held to amount to a refusal to so comply, which, under the terms of the contract, excused complainant from tendering a deed to defendant, it appearing that the terms of the contract obligated him to pay a specified sum within a certain period after a specified date, and such payment was repeatedly demanded for several months when complainant elected to declare the contract forfeited.
    7. Vendor and purchaser, § 67*—when provision in contract reciting payment as earnest money construed as referring to payment on purchase price. Provision in contract for sale of real estate that “said purchaser has paid $1,000 as earnest money to be applied on such purchase when consummated,” construed to mean that the purchaser parted with the earnest money for the benefit of the seller and that he paid it as a part of the purchase money.
    8. Vendor and purchaser, § 67*—when vendor entitled to earnest money as liquidated damages. Provisions in contract for the sale of real estate with reference to earnest money paid by the purchaser, construed to mean that in case of defects in title which are not cured, at purchaser’s option the contract becomes void and the earnest money shall be returned, but if the purchaser fails to perform, then, at the seller’s option, the earnest money should be retained by the vendor as liquidated damages, and this regardless of whether the earnest money was delivered to the seller or by agreement was held by a third party.
    9. Equity, § 9*—when equity will determine whether party rightfully declared penalty forfeited. A court of equity will not interfere with contracts providing for penalties and forfeitures, if the parties proceed strictly according to their terms, except in cases of fraud, mistake or unconscionable provisions but where the aid of such court is sought to declare whether a party rightfully declared a penalty forfeited, it is very different from asking the court itself to declare such forfeiture.
    10. Equity, § 512

      —when decree does not declare a forfeiture. In chancery proceedings where complainant seeks to have a contract for the sale of real estate from him to defendant declared void and other equitable relief, and where under such contract defendant paid earnest money to a title and trust company to be applied on his purchase when completed, and he tries to obtain it from the stakeholder and such money is complainant’s own according to the terms of the contract, and, inasmuch as no contractual relations exist, defendant cannot sue such holder in assumpsit, and the court incidentally must decide whether the forfeiture which complainant has declared was justified under all the circumstances of the case, there is no declaration of a forfeiture but simply a finding that the declaration of forfeiture is warranted under the circumstances.
    11. Vendor and purchaser, § 151*—when tender of deed unnecessary. Where complainant sought in a court of equity to have a contract, whereby he agreed to sell real estate to defendant, declared void, a tender of deed to defendant held not necessary, as by means of defendant’s default it would have been a useless act, and as by the terms of the contract it was provided that there should be no delivery to defendant but simply a deposit with a title and trust company.
    12. Vendor and purchaser, § 116*—what constitutes tender of performance of contract for sale of real estate 6y vendor. Where the obligations in a contract for the sale of real estate became mutual and concurrent by the service of a notice on the part of the vendor whereby he offered to perform, held such offer of performance was a tender of performance.
    13. Vendor and purchaser, § 116*—what constitutes tender of performance of contract for sale of real estate. A tender of performance in the case of mutual and concurrent promises in a contract for the sale of real estate does not mean the same kind of an offer as when used in reference to the payment of a debt due in money, but only means a readiness and willingness accompanied by ability on the part of the parties.
    14. Vendor and purchaser, § 277*—when vendor may declare contract for sale of land forfeited. Under the terms of contract for sale of real estate and under the circumstances shown by the evidence, complainant vendor held to have the right to declare such contract forfeited.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Bradley, Harper & Eheim, for appellant; Thomas E. D. Bradley and Edward J. Farrell, of counsel.
    Dawson & Dawson, for appellee.

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

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

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

   Mr. Justice Baker

delivered the opinion of the court.

This appeal brings in review a decree for complainant Summers on a bill filed by him against defendant Hedenberg, praying that a certain contract between the parties for the sale of real estate by complainant to defendant, made October 2, 1913, be declared void; that the affidavit of claim made and filed by defendant be removed as a cloud on complainant’s title; that defendant be enjoined from setting up any right under the contract;' that a declaration of forfeiture of the contract made by complainant be decreed valid, and that a deposit of $1,000 earnest money made by defendant with the Chicago Title & Trust Company be forfeited and the depositary ordered to pay the same to complainant. The contract price was $29,500, to be paid, $1,000 as earnest money, $4,000 within thirty days after the title had been examined and found good or accepted by the purchaser, and $5,000 within sixty days after such examination and acceptance; and the remaining sum of $19,500 by giving three notes in the sum of $6,500 each, due in one, two, and three years after date, secured by trust deed upon the real estate. The contract further provides:

“This contract and the earnest money shall be held by the Chicago Title and Trust Co. in escrow, and when the payments of the respective sums of $4,000 •and $5,000 shall have been deposited by purchaser with said Chicago Title and Trust Company in accordance .with the terms of this contract, seller shall deposit with said company a good and sufficient warranty deed conveying said property to purchaser and purchaser shall deposit the notes and trust deed aforesaid, securing said, balance of $19,500 purchase money. Said deeds shall be recorded, the examination of title continued by the Chicago Title and Trust Company, and upon its report that purchaser has good title to said real estate, subject to said encumbrance of $19,500, said sum of $10,000 held by it and said notes and trust deed shall be delivered by it to seller, and said warranty deed to purchaser.”

The contract also contains this provision:

“Provided a good and sufficient general warranty deed, conveying to said purchaser a good and merchantable title to said premises (subject as aforesaid) shall be ready for delivery.”

This provision is superseded by the provision for the deposits with the Chicago Title and Trust Company. The provision relating to the warranty deed being ready for. delivery was modified by prescribing that it shall be deposited with the Trust Company after the first two payments shall have been deposited.

Defendant failed to make the payment of $4,000 although such payment was demanded many times between December 1, 1913, and April 13, 1914, and repeated promises were made by defendant to pay the same within a few days. Complainant did not consent to any delay in the time.of payment, and in March, 1914, notified defendant that unless he made the payments then due and carried out the other provisions of the contract by May 4, 1914, complainant would forfeit and cancel the contract and elect' to retain the $1,000 earnest money as liquidated damages. Nothing further was done by defendant and May 5, 1914, complainant notified defendant that he elected to declare the contract forfeited and to receive the $1,000 deposited with the Trust Company as liquidated damages for defendant’s failure to perform the contract in accordance with its terms.

May 29, 1914, defendant filed an affidavit claiming that the time for the performance of the various provisions of the contract had by mutual agreement of the parties been extended from time to time; that complainant by notice sought to fix an arbitrary time for performance and to cancel the contract and retain the $1,000, and defendant claimed that the contract was in full force. Complainant filed his bill August 19, 1914, setting up the contract, the notices, and appellant’s affidavit, and asking for relief as before stated.

Appellant relies on four grounds of reversal:

That appellee did not make proof of ownership.

That he did. not tender a deed nor prescribe the form of the trust deed to be given.

That the time fixed in the notice preliminary to forfeiture was not reasonable.

That equity will not lend its aid to enforce a forfeiture.

The answer of defendant does not deny the allegation of ownership made in the first paragraph of the bill of complaint, and it is only in this court that, for the first time, it is contended that appellee did not make formal proof of ownership.

The rule in chancery is that a defendant is bound to apprise the complainant by his answer of the nature of the defense he intends to set up, and that the defendant cannot avail himself of any matter of defense which is not stated in his answer even though it should appear in the evidence.

A point which is not raised before the master by objection or exception to Ms report is considered as waived.

The contract is plain and unambiguous, and evidence as to negotiations leading up to it were inadmissible and such evidence was properly disregarded by the master.

Defendant’s repeated failures to comply with the contract between December Í913 and March 1914 amounted to a refusal to so comply, and this under the terms of the contract excused the complainant from tendering a deed to defendant. The contract shows that the purchaser parted with the earnest money for the benefit of the seller; that is, he paid it as a part of the purchase money. “Said purchaser has paid $1,000 as earnest money, to be applied on such purchase when consummated.” It makes no difference whether the earnest money was delivered to the seller or by agreement is held by a third party. In case of defects in title which are not cured, at purchaser’s option the contract becomes void and said earnest money should be returned. If the purchaser fails to perform, then at seller’s option the earnest money should be retained by the vendor as liquidated damages.

By the terms of the contract the earnest money was Summers’ money from the moment it was paid over as part of the purchase money, and so remained unless there was a defect in the title which was neither cured nor excused.

In Howe v. Smith, 27 Law Reports, Ch. D. 89, there was a contract of sale in which Howe agreed to purchase from,Smith certain premises, “for the price of £12500, £500 part thereof having been paid on the signing of this agreement as a deposit and in part payment of the purchase money. ’ ’ The purchaser delayed closing the deal from time to time, and the court decided that the delays caused by the purchaser deprived him of the right to enforce specific performance. The complainant’s attorney then asked for the return of the deposit and that the statement of claim might be amended so that that question might be raised and disposed of. This was granted by the court, and the substance of the opinions are on the point as to whether the purchaser had a right to the return of the earnest money.

One of the Justices, Lord Cotton, said:

“What is the deposit? The deposit, as I understand it, and using the words of Lord Justice James, is a guarantee that the contract shall be performed. If the sale goes on, of course, not only in accordance with the words of the contract, but in accordance with the intention of the parties in making the contract, it goes in part payment of the purchase money for which it is deposited; but if on the default of the purchaser the contract goes off, that is to say, if he repudiates the contract, then, according to Lord Justice James, he can have no right to recover the deposit.”

Lord Justice Bowen said:

“A deposit, if nothing more is said about it, is, according to the ordinary interpretation of business men, a security for the completion of the purchase. But in what sense is it a security for the completion of the purchase'? It is quite certain that the purchaser cannot insist on abandoning his contract and yet recover the deposit, because that would be to enable him to take advantage of his own wrong.”

Lord Justice Fry said:

“It appears to me that when the purchaser had failed on his part down to the last moment which law or equity gave him, the vendor’s title was absolute, both to the whole legal and equitable estate in the land sold, and also, by force of the terms of the deposit, to the deposited money, and that the purchaser could recover no right in this deposit because the vendor chose to sell his land, as he was entitled to do under his title as absolute legal and equitable owner.”

In Catton v. Bennett, 51 L. T. (N. S.) 70, the contract provided:

“As an earnest hereof the purchaser has this day paid into the hands of Mervin, Richard Smith & Co. the sum of £500 as a deposit, the deposit to form part of the purchase money to be paid on the day of possession.”

In discussing the term “earnest money” Judge Kay says:

“Looking to the authorities that have been cited on this subject, I should be strongly inclined to think that 'as earnest hereof’ meant a sum which if I do not perform my part of the contract is a sum which the vendor is to keep. ’ ’

In Bucklen v. Hasterlik, 155 Ill. 423, the court quotes with approval a sentence from Depree v. Bedborough, 4 Giff. 479, to this effect:

“Then how the person who was in default can, upon that default and in consequence of that default, acquire any right to the money, which was parted with as a security that there should be no default, it is difficult to conceive.”

The courts have never attempted to say that parties cannot make contracts which provide for penalties and forfeitures, and if the parties so provide in their contracts and proceed strictly according to their terms, a court of equity will not interfere except in cases of fraud, mistake or unconscionable provisions. It makes a great difference whether in seeking relief in a court of equity the court is asked for some affirmative action which requires it to decree a forfeiture, or whether the aid of the court is sought for some relief in deciding whether to grant it or not. The court must pass on the question of whether the party seeking the aid of the court has rightfully sought to enforce the terms of a valid contract. In this case the defendant sought to obtain money from the stake holder—complainant’s own money according to the terms of the contract. Defendant cannot sue the Chicago Title and Trust Company in assumpsit, as no contractual relations exist. The court incidentally must decide whether the forfeiture declared by complainant was justified under all the circumstances of the case. This is very different from asking the court itself to declare a forfeiture. In no part of the decree of the Circuit Court was there a declaration of forfeiture. It simply found that the declaration of forfeiture-was warranted under the circumstances.

A tender was not necessary, first, because by reason of defendant’s default it would have been a useless act; second, because by the terms of the contract defendant provided that there was to be no delivery to him, but simply a deposit with the Chicago Title and Trust Company. But even on counsel’s own theory that by the service of the notice the obligations of the contract became mutual and concurrent, there was a tender. The offer to perform made by appellee was a tender. The case of Clark v. Weis, 87 Ill. 438, points out that tender in the case of mutual and concurrent promises does not mean the same kind of an offer as when used in reference to the payment of a debt due in money, but only means a readiness and willingness accompanied with ability on the part of the parties. The court on page 440 says:

“The promises of the parties here were mutual and dependent, and, as a clear exposition of the law applicable, we quote from the opinion of Storrs, C. J., in Smith v. Lewis, 26 Conn. 110: " As the agreement required only that the acts of both the parties should be done at the same time, neither was obliged to do the first act, or consequently to perform his part of the agreement without or before the other. The plaintiff, in order to sustain this action, need only to show that he did what the law required of him; and all that it required was, that he should be ready and willing to perform on his part, if the defendant was ready to perform on his. Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word “tender” as used in such a connection does not mean the same kind of offer as when it is used in reference to the payment or offer to pay. an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, and the transaction is completed and ended; but it qnly means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement. ’ ”

We think that under the terms of the contract and under the circumstances shown by the evidence, complainant had a right to declare the contract forfeited. If he had, all the relief prayed for follows as a matter of course, to wit, that the Chicago Title and Trust Company should pay over the $1,000 deposit, and that the affidavit filed by Hedenberg be removed as a cloud.

Under the evidence in the case the decree was proper and is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Lang and Louise Lang, Appellees, v. James W. Hedenberg, Appellant.
    Gen. No. 22,012.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Suit by John Lang and Louise Lang, complainants, against James W. Hedenberg, defendant, to declare forfeited a contract for the sale of real estate and for other equitable relief. From a decree in favor of complainants, defendant appeals.

      The issues in this case are practically identical with those involved in Summers v. Hedenberg, ante, page 460. The land involved in this case and that involved in the Summers ease, supra, were parts of the same tract, which had been originally owned by Summers. In this case the defendant entered into a contract with the complainants for the purchase of the land involved herein, and the purchase price of the land involved in this case was the same as that of the land involved in the Summers case, supra. The two contracts contained the same provision as to deposits of the contract and earnest money with the Chicago Title and Trust Company and the right of the complainants to retain the earnest money if defendant failed to perform the contract on his part. Many of the questions involved in the two cases are identical and in that respect the Appellate Court makes reference to such case.
    In the instant case the abstract was delivered to defendant, who made no objection to the title. When the time for the payment of $4,000 arrived, defendant, on repeated demands, failed to pay the money, and also failed to pay the $5,000 when it fell due on the ground that he did not have the money. The master from the evidence concluded that the only reason that defendant did not make the payments was that he was unable to raise the money, as he never gave any other reason nor made any objection to the title of appellees. A notice similar to that given in the Summers case, supra, was given by complainants to defendant April 13th, and, defendant having failed to make any payments, complainants caused defendant to be served with another notice that on account of his failure to perform the provisions of the contract, make the payments necessary and comply with said first notice, they had elected to declare the contract null and void and to retain the purchase money. May 29, 1914, defendant filed in the recorder’s office an affidavit similar to the affidavit filed in the Summers case, supra. He never made payment of either the $4,000 or the $5,000 to the Chicago Title and Trust Company, nor offered to do so. No argument was made before the master of any defect in complainants’ title, and no argument on this question was made before the court on exceptions to the master’s report. It was argued for the first time in this court.
    Abstract of the Decision.
    1. Vendos and purchaser, § 111

      —when evidence sufficient to sustain finding that contract purchaser of land refused to perform contract because of financial inability. Where defendant, in an action to declare a contract for purchase of land forfeited, bought such land from complainant, and upon delivery of the abstract to him failed to make payments due under the terms of the contract, evidence held sufficient to sustain a finding of the master that the reason why defendant did not make the payments was his inability to raise the money, it not appearing that he gave any other reason or made any objection to the title of complainants.
    2. Vendor and purchaser, § 56*—when objections to contract of purchase of land waived. By basing his refusal to perform a contract for the purchase of real estate on his inability to do so, a contract purchaser waives all other grounds of objection.

      The grounds of reversal urged were: First, that complainants were in default at the time of the service of the notice of April 13, 1914, and were not entitled to forfeit and retain the earnest money, because there was no proof that at the time of the service of the notice they had perfect title to the property; second, that complainants did not tender a deed nor prescribe the form of trust deed; third, that the notice did not give a reasonable time for performance; fourth, that a court of equity will not aid the complainants.
    Bradley, Harper & Eheim, for appellant.
    Rubens, Fischer, Moran & Barnum, for appellees.

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

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

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Vendos and purchases, § 111 —when evidence insufficient to establish giving of additional time to vendee for payment of purchase price. On a bill to declare forfeited a contract for the purchase of land, evidence held insufficient to establish that vendors agreed to give vendee additional time for payment of the purchase price, it appearing that his refusal to perform was upon the sole ground that he did not have the money to make the payments.

4. Vendos and purchases, § 148*—when purchaser waives objection to title. Where a conveyance is refused on the ground that the purchaser does not have the money, he cannot object to the title.

5. Vendos and purchases, § 135*—when not necessary that vend- or have title to land. It is not necessary that vendors of real estate have title until the time they have agreed to deposit a deed in escrow, if before that time the vendee had made default and could not require the vendors to obtain title.

6. Vendos and purchaser, § 151*—when tender of deed not necessary. Where vendors of real estate in their contract of sale have agreed to deposit the deed with a third party after the vendee has deposited purchase money in accordance with the contract, a tender of the deed is not necessary, and all that is necessary is an offer by the vendors to make a deed and deposit it, providing the vendee would deposit the payments and perform his contract.

7. Vendos and purchaser, § 151*—when tender of deed unnecessary. The law does not require a needless formality, and an actual tender of a deed is unnecessary where the seller is ready, able and willing to perform on his part, and a tender would be a mere useless form.

8. Vendor and purchases, § 118*—when vendor need only prove ability and willingness to perform contract. If before or at the time of performance the purchaser has declared his intention not to perform, or refuses to do so, the seller need only prove that he was ready and willing to perform on his part.

9. Vendor and purchaser, § 118*—when tender of performance by vendor unnecessary. If tender of performance by the vendor would prove ineffectual, the law does not require a vain act, and such tender is unnecessary.

10. Vendor and purchaser, § 111*—when evidence insufficient to show that notice of forfeiture unreasonable. On a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money to complainant by a trustee, evidence held insufficient to show that the notice of forfeiture of earnest money was unreasonable.

11. Equity, § 512 —when decree does not declare a forfeiture. A decree on a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money is not objectionable where it does not in itself decree or declare a forfeiture but merely decrees that defendant by his own acts prior to the filing of the bill rescinded the contract or caused a forfeiture, and that the title to the earnest money was in complainants at the time the bill was filed.

12. Equity, § 512*—when decree for payment of earnest money does not provide for forfeiture. Earnest money in the hands of a trustee belonging to the seller because of the default of the purchaser cannot be returned to the purchaser but may be decreed to be paid by the trustee to the seller, and such a decree does not provide for the enforcement of a forfeiture.

13. Vendor and purchaser, § 67*—when vendor entitled to earnest money. Earnest money is a guaranty that the contract will be performed, and if the sale goes on, it applies as part payment of the purchase money, but if there is a default on the part of the purchaser, he has no right to recover the deposit and it belongs to the seller.


author: Mr. Justice Holdom

text:
    Albert W. Rudnick, Administrator, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 20,897.
    (Not to be reported, in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1915.
    Reversed.
    Opinion filed April 10, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Petition for mandamus by Albert W. Rudnick, administrator of the estate of James F. Scanned, deceased, against the City of Chicago et alrespondents. From a judgment awarding the writ, respondents bring error.
    The relator obtained from the Circuit Court a writ of mandamus reinstating him into the claimed office of “meter setter” in the Department of Public Works of the City of Chicago. Since the writ was sued out respondents suggested the death of relator and his administrator was substituted and duly summoned, and while his appearance had been entered he failed to file briefs or argue the cause.
    Abstract of the Decision.
    1. Civil service, § 27

      —when petition in mandamus for reinstatement of meter setter insufficient. Where a petition for mandamus to reinstate petitioner in the office of “meter setter” in the Department of Public Works of the City of Chicago averred that such Department of Public Works was created by an ordinance passed in 1881, and that by the Revised Code of Chicago of 1897 said department embraced the Commissioner of Public Works and such other employees as- the city council might by ordinance prescribe and establish, but by nb averment of the petition was it made to appear that the city council by ordinance created the office of “meter setter,” held that such petition was insufficient as it did not plead any ordinance showing the creation of the office.

      The cause was tried before the court upon the petition as twice amended, the answer of respondents and a stipulation of fact. The relator had before the filing of the petition been dismissed upon a trial before the Civil Service Commission, in conformity with the requirements of the civil service law. The relator averred that the Department of Public Works, was created by ordinance passed April 18, 1881; that thereafter, by the Revised Code of the City of Chicago, 1897, the said department was established as an executive department of the municipal government of Chicago known as the Department of Public Works, embracing the Commissioner of Public'Works and such other employees as the city council may by ordinance prescribe and establish.
    By no averment of the petition as amended was it made to appear that the city council by ordinance created the office of “meter setter, ’' nor was any such ordinance cited in such amended petition.
    John W. Beckwith, Joseph F. Grossman and John E. Foster, for plaintiffs in error.
    A. D. Gash, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, anti Cumulative Quarterly, same tppic 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. Civil service, § 10 —when Civil Service Commission has no power to create office. The Civil Service Commission has no power to create the office of “meter setter” in the Departmnt of Public Works in Chicago but can only classify the offices created by ordinances of the city council.

3. Mandamus, § 139*—when petition in mandamus to compel reinstatement of officer insufficient. In mandamus proceedings where the existence of the office is claimed, it must be made to appear by appropriate averments that the office was created in the manner prescribed in cases of such character.

4. Evidence, § 1Ó*—when judicial notice not taken of municipal ordinances. Courts of general jurisdiction do not take judicial notice of municipal ordinances, but he who relies upon such an ordinance must allege and prove it as a matter of fact.

5. Civil service, § 27*—when proceeding for mandamus not remanded. Writ of mandamus having been issued to reinstate relator to office of “meter setter” in the Chicago Department of Public Works, the Appellate Court, in reversing the judgment of the trial court, will not remand the cause, it appearing that relator was not entitled to the writ and is dead.


text:
    Frank O. Harney, alias Frank O. Youngblood, Defendant in Error, v. John Joseph Wilson (Plaintiff in Error), William P. Behen et al., Defendants in Error. John Joseph Wilson, Plaintiff in Error, v. William P. Behen, Personally, et al., Defendants in Error.
    Gen. No. 21,029.
    1. Wills, § 168

      —when Circuit Court no jurisdiction to entertain till to contest will. The time for filing a hill in chancery to contest a'will as limited in Hurd’s Rev. St., ch. 148, sec. 7 (J. & A. If 11548), is a jurisdictional fact, without proof of which the Circuit Court cannot proceed, and unless relief is sought within the statutory time the court has no jurisdiction to entertain the bill.
    2. Wills, § 163*—when equity no jurisdiction to entertain till to construe will. Under Hurd’s Rev. St., ch. 148, sec. 7 (J. & A. If 11548), providing that one who seeks to contest a will must appear by his bill in chancery within one year after the probate of such will, the right to contest given by the statute does not exist without it, and one who seeks to avail himself of such statute must show that he is within its provisions where he does not come within the excepted classes of infants and persons non compos mentis.

    3. Wills, § 175*—when cross-till to contest will automatically dismissed. When a court decrees that complainant who seeks to contest a will is not an interested party and for that reason only dismisses the original bill, the cross-bill filed in such cause automatically suffers the same fate.
    4. Wills, § 168*—when statute of limitations tegins to run as to right to contest will. Where a will and codicil are admitted to probate by order of the Probate Court and thereafter an appeal is taken from such order to the Circuit Court which affirms it, the probate of the will and codicil is firmly and finally fixed on the date when such judgment of affirmance is recorded in the Probate Court, and under Rev. St., ch. 148, sec. 7 (J. & A. If 11548), all parties in interest are limited to a year from such date within which to contest such will and codicil.
    5. Wills, § 169*—who may contest. The right to contest a will by statute is confined to those having an interest therein, and no one is permitted to maintain a bill without such interest.

      6. Wills, § 171

      —when cross-complainant in suit to contest unll estopped by admissions to claim, interest of complainant to maintain bill. Where complainant in a suit in chancery to contest a will was adjudged never to have had any interest in such will and the correctness of such finding was not challenged by cross-complainant, who was the only person interested in that phase of the decree, held, that such cross-complainant in effect admitted complainant’s lack of interest, and that complainant therefore had no right at any time to maintain the bill.
    7. Wills, § 175*—what is effect of dismissal of bill to contest will. Where a suit to contest a will and codicil is commenced previous to the date when such will and codicil are admitted to pr'obate, and more than two years later a cross-bill to contest the validity of the codicil is filed in such suit, and complainant is not an interested party, and the court so determines in dismissing his bill, the position of the parties remains the same as it would have been had complainant never filed his bill, and hence no bill has been filed by any person interested in the will of deceased within the time limited by Rev. St., ch. 148, sec. 7 (J. & A. If 11548).
    8. Wills, § 168*—when answer to bill to contest will does not ■constitute assertion of right to contest will ivithin statutory limit. An answer to a bill of complaint filed to contest a will and codicil cannot be considered as an assertion of a right to contest such codicil within the time limited by Rev. St., ch. 148, sec. 7 (J. & A. If 11548), when it is not filed until more than two years have elapsed since the order of probate.
    Error to the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Cruice & Langille, for plaintiff in error; A. S. Langille and D. Ryan Twomey, of counsel.
    Castle, Williams, Long & Castle, for defendants in error; Arista B. Williams, 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 tppic and section number,

   Mr. Justice Holdom

delivered the opinion of the court.

This litigation involves a contest of the will of Edward Harney. We will state the order of events necessary to a decision and understanding of this case.

Edward Harney died in Chicago September 23,1910, testate. His will was dated April 5,1910, and a codicil thereto was added September 15, 1910. By the will plaintiff in error, who was no blood kin of the testator, was bequeathed about one-third of his estate and the other two-thirds were bequeathed to certain of his collateral kin, he having died without descendants. The codicil revoked the bequest to Wilson, the plaintiff in error. The will and codicil were admitted to probate in the Probate Court of Cook county, November 29, 1910. From the order so admitting the will and codicil to probate, Wilson, plaintiff in error, appealed to the Circuit Court, where the order of the Probate Court was not varied. The action of the Circuit Court on this appeal was duly certified to the Probate Court, which, by an order of record entered October 6, 1911, recorded that fact. On August 18, 1911, Frank O. Youngblood, who called himself “Harney” and who claimed to be a son of the testator, filed a bill, found in the record, to set aside the will and codicil, on the contention that the testator was not of sound mind and memory at the time he executed will and codicil; that the will and codicil were procured by fraud and duress; and asking that the testator be decreed to have died intestate and that his estate be distributed among his heirs at law. To this bill Wilson was a party defendant, and by his answer admitted the validity of the original will but claimed that at the time the codicil to the will admitted to probate was executed by the testator he was not of sound mind and memory, but was suffering with disease; that his mind was so impaired at that time as to render him wholly incapable of making a just and proper distribution of his estate. On March 4, 1914, plaintiff in error, Wilson, obtained an order permitting him to file his cross-bill, which he did on that date, making practically the same averments in regard to the validity of the will and the invalidity of the codicil as made in his answer, and praying inter alia that the will of the testator probated November 29, 1910, be declared to be his last will and testament, and that the codicil be declared null and void and of no effect. By agreement the question of heirship of the testator was tried, and on June 27, 1914, a decree was entered finding heirship and decreeing that the complainant in the original bill was not the son and heir of the testator, but that he was a bastard son of one Elma Hupp and was not a person interested in the estate of the testator, and that by reason thereof the court was without jurisdiction of the subject-matter of the bill of complaint, and dismissing complainant’s bill for want of equity and also dismisssing the cross-bill, as amended, of the plaintiff in error.

Plaintiff in. error is the only party to the cause questioning the verity of the decree dismissing the bill and cross-bill as amended, and his contention is that they should not have béen dismissed.

In this condition of the record but one question is pertinent for our decision, and that is whether plaintiff in error can be said to have filed his bill to contest the will of Edward Harney, deceased, within the time limited by section 7, chapter 148, Rev. St. (J. & A. ft 11548), which is one year. That part of section 7 in which the limitation occurs reads: “* * * that if any person interested shall, within one (1) year after the probate of any such will, testament or codicil * * * appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, * * * according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate shall be forever binding and conclusive on all of the parties concerned, saving to infants or non compos mentis the like period after the removal of their respective disabilities. * * *” The right to contest a will is one given by the statute and without it no such right exists. Therefore, as plaintiff in error is not within the exception of the statute as either an infant or non compos mentis, it follows that in seeking to avail of such statute he must show that he is within its provision. In Storrs v. St. Luke’s Hospital, 75 Ill. App. 152, the court said: “The jurisdiction of chancery in the contest of wills is statutory, and the statute must be strictly construed. It is not a statute of limitation, but confers a new right or privilege which did not exist before the statute. Unless the bill is filed within three years of the probate of the will, or excused by the letter of the statute, the court has no jurisdiction.”

Under the statute as it existed prior to 1903 the time in which to file a bill to contest a will was limited to three years, and as said in Luther v. Luther, 122 Ill. 558: ‘ ‘ The court has no power to entertain the bill after the three years have passed. ’ ’ The time limited is a jurisdictional fact, without proof of which a court of chancery cannot proceed. Unless the relief is sought within the statutory time, the court has no jurisdiction to entertain the bill. When the court decreed that complainant was not an interested party and for that reason only dismissed the original bill, the cross-bill automatically suffered the same fate.

In Loomis v. Freer, 4 Ill. App. 547, it was said that “where an original bill in chancery is dismissed for want of jurisdiction, a cross-bill filed in the same cause, must follow the fate of the original bill.”

The probate of the will and codicil of Harney became firmly and finally fixed on October 6, 1911, when the Probate Court entered an order reciting the judgment of the Circuit Court in disposing of plaintiff in error Wilson’s appeal. All parties in interest were limited under the statute to one year from October 6, 1911, in which to contest by bill in chancery the validity of the will. The right to contest a will by the statute is confined to those persons having an interest in the will, and no one who is without interest in the will is permitted to .maintain a bill. The complainant in the original bill had no interest in the will of Harney, the testator, and never had, as adjudged by the decree in the record. The correctness of this finding of the decree is not challenged by the only party interested in that phase of the decree. This finding of the decree is binding upon all persons to the cause, including plaintiff in error. In other words, plaintiff in error stands before the court as admitting that complainant had no interest in the will and codicil set forth in his bill, and therefore no right at any time to maintain the bill. The complainant was not an interested party, and when the court so determined and dismissed his bill the position of the parties was the same as it would have been had complainant never filed his bill. It therefore follows, 'as matter of law, that no bill was filed by any person interested in the will of Edward Harney, deceased, within the time limited by section 7, supra.

If we should concede, which we do not, that plaintiff in error by his answer invoked the relief afterwards prayed in his cross-bill, still, as he did not file his answer until March 4, 1914, he did not assert his right to contest the will or codicil of Edward Harney within the time limited by the statute. It is consequently apparent that no party to this record interested under the will and codicil of Edward Harney, deceased, filed any bill or commenced any proceeding to contest such will or codicil within the time provided by the statute.

As the court had no jurisdiction to entertain either the bill of complaint or the cross-bill of defendant, the decree of the Superior Court dismissing both of them was without error, and that decree is therefore affirmed.

'Affirmed.


text:
    Sol Finkel, Defendant in Error, v. Samuel Springer, Plaintiff in Error.
    Gen. No. 21,527.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by Sol Finkel, plaintiff, against Samuel Springer, defendant, for one hundred and fifty dollars loaned by plaintiff to defendant. From a finding and judgment for one hundred and fifty dollars in favor of plaintiff, defendant brings error.
    Plaintiff claimed to have loaned defendant one hundred and fifty dollars with which to pay money that defendant lost at gambling. Defendant invoked Rev. St., ch. 38, sec. 131 (J. & A. 3734) as a defense. It was not contended that the one hundred and fifty dollars loaned, or any part of it, was paid to plaintiff as money won by him from defendant at the gambling game of poker or any other gambling game of cards. It seemed, however, that plaintiff and defendant and five other men were playing poker at plaintiff’s house and that defendant lost one hundred and ninety dollars, and having only forty dollars with him, at' the conclusion of the game borrowed the one hundred and fifty dollars from plaintiff and. paid it, together with the forty dollars he had with him, to the persons who had won various amounts of money from him.
    Leon A. Berezniak, for plaintiff 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. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Gaming, § 43 —when evidence sufficient to sustain finding that plaintiff loaned money to defendant to pay gaming debts. In an action for money loaned to a gambler to pay gaming debts, where two witnesses corroborated plaintiff’s account of the transaction and defendant’s testimony was not supported by any other witness, held that the issues were properly found for the plaintiff.

2. Gaming, § 19*—when person loaning money to gambler to pay gaming debts may recover amount of loan. Where one person loans another a sum of money after the playing of a poker game is concluded, for the purpose of paying the persons who had won from the latter in such game, but does not participate in the game, he may recover such money in an action therefor, and it is immaterial that the lender may have knowledge of the purpose for which the money is borrowed, and that it is to be disbursed to pay gaming debts.

3. Gaming, § 19*—when gaming statute may not be invoked as defense to action for money loaned to gambler. Rev. St., ch. 38, sec. 31 (J. & A. Ü 3734), cannot be invoked as a complete defense in an action to recover money loaned to pay gambling debts, unless plaintiff has received some part of the money loaned back again as money that he had won from defendant in the gambling transaction.

4. Contbacts, § 125*—when obligation indirectly connected with illegal transaction enforceable. An obligation will be enforced, though indirectly connected with an illegal transaction, if it is supported by an independent consideration so that the plaintiff does not require the aid of the illegal transaction to make out his case.


text:
    Lars Saarela, Defendant in Error, v. Carl Hoglund, Plaintiff in Error.
    Gen. No. 21,558.
    1. Master and servant, § 11

      —when contract of employment definite as to time. An agreement made in May for an employment to continue “until the winter is over” is definite as to time as the court will take judicial notice that winter comprises a period of three months, whether reckoned astronomically from the winter solstice, on December 22nd, to the vernal equinox, on March 21st, or according to the conventional method used in the United States as including December, January and February.
    2. Evidence, § 20*—when court will take judicial notice of the seasons of the year. The courts will take judicial notice of the seasons of the year.
    3. Master and servant, § 50*—when evidence sufficient to sustain finding that servant arbitrarily discharged. In an action by a servant against his master for damages for breach of the contract of employment, evidence held sufficient to sustain a finding that plaintiff was arbitrarily discharged, it appearing that the right to so discharge him rested on the contention that he failed to return on a Saturday evening to clean out the ashes in the furnace after having, with the assumed consent of his employer, completed his work; that plaintiff was a union baker and that nine hours constituted a day’s work of a union baker; that on such Saturday, plaintiff had worked three and one-half hours in excess of that time, and that cleaning out the ashes from the furnace was not a part of plaintiff’s duty but devolved upon plaintiff’s assistant, and that defendant did not claim that plaintiff’s service as a baker was not satisfactory.
    4. Master and servant, § 30*—when work of servant must be satisfactory to the employer. It is implied in every contract of employment that the work of the servant, without any specific agreement, must be done to the satisfaction of his employer.
    5. Master and servant, § 29*—when master may not discharge servant. Even thought an employer has the right to discharge an employee “for any reason,” if he in fact discharges him without any reason and without cause, he breaks the contract of employment and is liable for damages.
    Error to the Municipal Court of Chicago; the Hon. P. B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.

      Edward A. Mechling, for plaintiff in error.
    M. Emmett Clare and Otto Christensen, for defendant in error.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topifi and Faction number.

   Mr. Justice Holdom

delivered the opinion of the court.

In this action plaintiff, a journeyman baker, sued his employer, a master baker, for breach of a contract 'of employment, and on a trial before the court had his damages assessed at $85, and judgment was entered against defendant for that sum, in an effort to reverse which judgment defendant prosecutes this writ of error.

The learned trial judge made the following finding of fact: That plaintiff and defendant entered into a verbal contract May 3,1914, whereby defendant agreed to employ plaintiff and plaintiff agreed to work for defendant as a baker at a weekly wage of $20 from that date “until the winter was over”; that in August, 1914, plaintiff procured another position, and after being absent one day returned to the employment of defendant at a wage of $17 per week, upon the statement of defendant that he would keep plaintiff “over the winter”; that defendant discharged plaintiff without cause on the 8th of November, 1914, and that plaintiff was unable to secure other employment until February 15, 1915, when he obtained a position at $23 per week; and further found that plaintiff was entitled to recover $85 as damages from defendant for his breach of contract.

A perusal of the testimony sustains, in our opinion, the court’s findings. Defendant, however, urges for reversal that the contract was not for a definite- time, that defendant discharged plaintiff, as he lawfully might, and that plaintiff at the utmost cannot recover for more than one week’s wages. We are unable to acquiesce in these contentions. In the first place, the contract was for a definite time. We think that the agreement made in May for an employment to continue “until the winter was over” is definite. Astronomically, winter begins in the latitude in which Chicago is situate when the sun enters Capricorn, at which time the sun is at its greatest distance from the equator, or at the winter solstice, about December 22nd, and ends with the commencement of the vernal equinox, which occurs about March 21st. This is a period of three months. In the United States the winter months are conventionally reckoned as comprising the months of December, January and February. Among other things, the court will take judicial notice of the seasons of the year; therefore, by which ever method winter is measured, it comprises three months. This makes the contract certain as to time.

The right to discharge plaintiff rests in the contention that he failed to return at the command of defendant on a Saturday evening after having, with the assumed assent of his employer, completed his work, for the purpose of cleaning out the ashes in the furnace. Plaintiff was a union baker, and it is not denied that nine hours constituted a union baker’s day’s work. On the Saturday in question plaintiff had worked three and one-half hours in excess of that time. We think the evidence demonstrates that the cleaning of the ashes from the furnace was not a part of plaintiff’s duty as a baker, but that that duty devolved upon plaintiff’s assistant.

The work of the servant, without any specific agreement, must be done to the satisfaction of his employer; this is implied in every contract of employment. Defendant makes no contention that plaintiff’s service as a baker was not satisfactory. His discharge, therefore, for not removing the ashes was arbitrary and not justified by the terms of the employment contract. While it might be conceded that defendant had the right to discharge plaintiff “for any reason,” defendant in fact discharged plaintiff without any reason and without cause. Margulies v. Oppenheimer, 159 Ill. App. 520. In so doing he breached the contract and is liable for the damages which the trial court assessed against him.

The judgment of the Municipal Court being without error is affirmed.

Affirmed.


text:
    Charles W. Gindele, Executor of the Estate of Emma Gindele, Deceased, and Frank C. Conover, Plaintiffs in Error, v. Charles M. Conlon, Defendant in Error.
    Gen. No. 21,566.
    1. Abatement and revival, — when proceeding to assess damages on dissolution of injunction does not survive. Neither at common law nor under the statute (J. & A. 172) does a proceeding to assess damages upon the dissolution of an injunction survive either in favor of the parties moving for the assessment or against the executors of the parties against whom the assessment is sought.
    2. Abatement and revival, — when suggestion of death made too late. On a proceeding to assess damages on the dissolution of an injunction in which a decree has been entered and an appeal prayed and allowed, and the record in which contains nothing to show that either of the complainants in tie injunction suit died before the entry of the decree, hut which fact only appears by an incidental affidavit of counsel on a motion to vacate the decree, counsel cannot he heard, on a writ of error to reverse the judgment in .the proceeding for damages, to contradict the representations which they, by their appearance for complainants in the trial, assumedly made to the trial court as to the complainants being alive.
    3. Appeal and error, § 615

      —when parties to writ of error must he same as parties to decree complained of. The parties to a writ of error must he the same as the parties to the decree in the trial court which it is sought to reverse.

      Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1915.
    Writ dismissed.
    Opinion filed April 10, 1916.
    Rehearing denied April 24, 1916.
    Adams, Follansbee, Hawley & Shorey, for plaintiffs in error; Mitchell D. Follahsbee and Fred Barth, of counsel.
    Harry A. Biossat, for defendant in error.

      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 writ of error sued out in this case seeks a reversal of the decree awarding damages on the dissolution of an injunction granted in the case of Emma Gindele and George A. Gindele, complainants, against Charles M. Conlon and others, defendants, in favor of the defendant Charles M. Conlon. The bill was filed on August 20, 1914, and the injunction dissolved and the bill dismissed on the motion of complainants on February 9, 1915, and on March 29, 1915, a decree was entered awarding damages in the sum of $613.27 in favor of the defendant Charles M. Conlon and against complainants for the wrongful issuance of said injunction. From this decree complainants prayed and were allowed an appeal to this court. On April 17, 1915, complainants made a motion to vacate the decree, which was denied on the 19th of April thereafter. Defendant in error now moves to dismiss the writ of error and, contending that no other questions are pertinent for discussion upon the record in the case, dedines to argue the contentions of plaintiffs in error urged in their brief and argument for a reversal.

We see no way to disagree with the defendant in error in his suggestion that the writ of error be dismissed. We are not unmindful that a proceeding to assess damages upon the dissolution of an injunction does not survive either in favor of the representatives of the parties moving for the assessment or against the executors of the parties against whom the assessment is sought. Phelps v. Foster, 18 Ill. 309; Gorton v. Brown, 27 Ill. 489. Such an action does not survive under section 122, ch. 3, Rev. St. (J. & A. ft 172). Neither does any such action survive by the common law. Dempster v. Lansingh, 166 Ill. App. 261.

In the condition of this case .the remedy is on the injunction bond, where appropriate defenses may be interposed if there are any. Were plaintiffs in error in a position to invoke in their favor the law above cited, viz., that the right to an assessment of damages for the dissolution of an injunction does not survive, they must succeed; but they are not in such position. There is nothing in this record to show that prior to the decree sought to be reversed either of the complainants, George A. Gindele or Emma Gindele, was dead. It was only after the decree was entered and appealed from and an appeal prayed and allowed that complainants moved to vacate the decree and, incidentally, by an affidavit of one of their counsel, denoted the fact that Emma Gindele is dead and that she died November 23, 1914. If the Gindeles were dead at the time the decree was entered, then counsel had no authority to appear for them. The death of the Gindeles revoked the authority of their counsel.

In the condition of this record we cannot assume that either of the Gindeles was dead at the time the decree involved in this writ of error was entered. That counsel were appearing for them led to the assumption that they were in life, and in the verity of that assumption the decree was entered. Neither can we straighten out the tangle in this proceeding resulting from the actions of counsel in allowing the cause to proceed to a decree without suggesting the death of their clients and by such actions causing the court to assume that their clients were still in life. They cannot in this proceeding be heard in contradiction of the representations which they by their appearance for complainants in the trial assumedly made to the trial judge and which eventuated in the decree complained about. Whatever the fact may be, the record before us shows affirmatively that the G-indeles were alive at the time the decree was entered. That record only is before us for review and we cannot dehors that record assume that they are dead. Furthermore, the parties to this writ of error, as appears from the record, are not the same as the parties to the decree in the trial court. This violates the well-settled rule of practice in this State that they must be. Wuerzburger v. Wuersburger, 221 Ill. 277.

For the reasons above given we are of the opinion the writ of error was improvidently sued out and that the motion to dismiss must be sustained.

The writ of error is accordingly dismissed.

Writ dismissed.


text:
    August Leroy, Plaintiff in Error, v. Minerva V. Scott, Defendant in Error.
    Gen. No. 21,632.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John H. Fornoff, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by August Leroy, plaintiff, against Minerva V. Scott, defendant.
    It is stated in the abstract that the declaration is in an ‘ ‘ action of debt on a foreign judgment laying damages $79.50.”- It appears that a judgment by default was entered and then set aside; that pleas of nil debet
      and of nul tiel record were subsequently filed; that a replication to the plea of nul tiel record, concluding with a verification, was filed, and that an ore tenus demurrer to the plea of nil debet was sustained. Then follows the judgment of nil capiat, which recites that submission of the cause for trial by the court was pursuant to the stipulation of the parties. Subsequent to the entry of the judgment, defendant filed, by leave of court, a plea of puis darrein continuance. No issue was joined on this plea. Plaintiff then moved to vacate the judgment, and the motion being overruled brings error.
    Abstract of the Decision.
    Appeal and error, § 892

      —when judgment affirmed where abstract insufficient. The abstract of the record is the pleading of the plaintiff in error beyond which a court of review will not look for grounds of reversal, and the judgment will be affirmed where the abstract is practically nothing more than an index of the record, and fails to show any error of procedure or in the pleadings, even though it is accompanied by a full transcript.
    Robert H. Holmes, for plaintiff 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. Justice Holdom

delivered the opinion of the court.


text:
    Robert H. Holmes, Plaintiff in Error, v. Minerva V. Scott, Defendant in Error.
    Gen. No. 21,633.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John H. Fornofi’, ' Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by Robert H. Holmes, plaintiff, against Minerva V. Scott, defendant.
    The record and abstract in this case are in all essential particulars the same as in the case of Leroy v. Scott, Gen. No. 21,632, ante, p. 491. For the reasons appearing in the Leroy opinion, supra, the judgment of the Circuit Court was affirmed.
    Robert H. Holmes, pro se.

    No appearance for defendant in error.
   Mr. Justice Holdom

delivered the. opinion of the court.


text:
    Anton J. Cermak for use of Henry Stark, Defendant in Error, v. P. A. Starck Piano Company and United States Fidelity & Guaranty Company, Plaintiffs in Error.
    Gen. No. 21,676.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago i the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action on á replevin bond by Anton J. Cermak for use of Henry Stark, plaintiff, against P. A. Starck Piano Company, a corporation, and United States Fidelity & Guaranty Company, defendants.
    Plaintiff in a trial by the court had judgment for $400 debt, the penalty of the bond, and $254 damages in the usual form, to reverse which defendants prosecute this writ of error.
    The replevin bond sued upon was given in a replevin suit, under which the defendant piano company took the piano of plaintiff. The replevin suit resulted in a judgment in favor of plaintiff and the award of a writ of retorno habendo for the piano. The piano was not returned.
    Defendants tendered in defense a writing claimed to be a contract between plaintiff and the piano company for the purchase of the piano in question on the so-called “instalment plan.” It was claimed that under this contract plaintiff was behind in his payments at the time of the suing out of the replevin writ, and that thereby, under the contract, the piano was the property of the piano company and it had the right to reduce it to possession. Plaintiff denied that he signed the contract, but claimed that all he signed was a delivery ticket. Defendants’ witness, Laury, while testifying that plaintiff signed the proffered contract, admitted that it had been changed in several material particulars and that a large part of its terms had been added since plaintiff signed it. There, was no proof that plaintiff assented to any of the changes made in the alleged contract. The court excluded the writing because such material changes and alterations had been made without the assent of plaintiff.
    Abstract of the Decision.
    1. Replevin, § 134

      —what measure of damages where property not returned. Where a replevin suit results in a judgment in favor of plaintiff and the award of a writ of retorno habendo and the property is not returned, the measure of plaintiff’s damages in a suit on the bond is the value of the property together with his costs.
    2. Alteration of instruments, § 14*—what effect of material alteration in instrument sued on. Where a defendant in replevin sets up as his sole defense an alleged contract, the making of which is denied by plaintiff, and admits having made material alterations therein after its execution and no evidence is introduced to show plaintiff’s assent to the changes, the court properly excludes the writing and finds title to the property in plaintiff.
    Martin Connor, for plaintiffs in error.
    George M. Weichelt, for defendant in error.

      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 L. Marcus and Morris Marcus, trading as Marbro Mills, Defendants in Error, v. Morris Ratsky and Abraham L. Stone, trading as Ratsky & Stone, Plaintiffs in Error.
    Gen. No. 21,714.
    1. Depositions, § 22

      —when deposition of assignor of account inadmissible in suit by assignee. In a suit upon an assigned aecount, a deposition of the assignor taken by defendants is inadmissible under section 33 of the Municipal Court Act (J. & A. If 3344), where there is no evidence that the assignor was in any manner connected with or interested in the assignee or its business, or that he was liable as assignor to the latter in the event that assigned account was not collected.
    2. Conspiracy,- § 13*—when evidence inadmissible. Before evidence of a conspiracy is admissible against a party to a suit, such party must first be proven to have been a co-conspirator with the person whose statements out of his presence, are proposed to be given in evidence.
    3. Evidence, § 221*—when inadmissible as hearsay. In a suit on an assigned account, the evidence in which shows that a check had been sent in payment of the account but had come into the hands of a third person who changed the name of the payee, raised the amount and cashed the check, the deposition of a third person as to other similar transactions is inadmissible where no connection is shown between plaintiffs and deponent.
    4. Evidence, § 67*—when inadmissible as irrelevant. In a suit on an assigned account, certified copies of documents in a bankruptcy proceeding against the assignor in a Federal court in another district are properly excluded as irrelevant.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Eugene M. Bumphrey, for plaintiffs in error.
    William Helfand and Benjamin H. Ehrlich, for defendants in error.

      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.

A judgment on the finding of the court for $282.48 in favor of plaintiffs is the subject of this review. It is admitted that if plaintiffs are entitled to recover at all, the amount of the judgment should stand.

Plaintiffs bought from Joseph Seiden an account against defendants for goods sold and delivered to the amount of the judgment. Plaintiffs bring suit in their own name in force of section 18, ch. 110, Rev. St. (J. & A. 8555).

The difficulties here encountered arise from the fact that defendants attempted to pay the account in suit by drawing their check for the amount due to the order of plaintiffs and transmitting the same to plaintiffs by mail. This check never reached plaintiffs. In some way not satisfactorily explained the check fell into the hands of some dishonest person who raised it to $382.48, changed the name of the payee to “ J. Wilner ’ ’ and cashed the check as altered at the Night Bank of St. Louis, Missouri. The serious question for solution is whether the proofs in the record in any way connect plaintiffs with the forgery, and if not, whether, on the theory that the evidence excluded would, was such evidence admissible for that purpose. This raises the! further question whether the deposition, taken by defendants, of Joseph Seiden, the assignor of the account in suit, was admissible in evidence under section 33 of the Municipal Court Act (J. & A. ft 3344), for which limited purpose only was it offered. This section reads:

“That upon the trial or hearing of any suit in the Municipal Court any party thereto or any person for whose immediate benefit such suit is prosecuted or defended or the directors, officers, superintendent or managing agents of any corporation which is a party to the record in such suit may be examined upon the trial thereof as if under cross-examination at the instance of the adverse party or parties, or any of them, and for that purpose may be compelled, in the same manner and subject to the same rules for examination, as any other witness, to testify, but the party calling for such examination shall not be concluded thereby, but may rebut the testimony thus given by counter testimony.”

The construction of this section is one of first impression, as up to the present time such section has not been construed by a court of review. We are inclined to the opinion that Seiden’s deposition was properly excluded, in the limited way in which it was offered, because Seiden was neither a party to the cause nor beneficially interested in its outcome. There is no evidence that he was in any manner connected with or interested in plaintiffs or their business or that he was liable as assignor to plaintiffs in the event that the account assigned was not collected. Without making it to appear that Seiden was in some way beneficially interested in the suit, defendants could not under section 33, supra, avail of his evidence. Defendants proffered the deposition of Jacob Goldman, a self-confessed crook, which was taken in the “Tombs” prison in New York City, in an attempt to connect plaintiffs with the forged check. Goldman’s testimony was not only unreliable but it was purely hearsay and in no way tended to connect plaintiffs with the forgery of the check of defendants sent to plaintiffs, or with any conspiracy to raise, alter or change any other checks. It seems that Goldman had been connected with a gang of forgers which had raised checks in transactions similar to the one between plaintiffs and Seiden, and that he had been many times arrested. Even his testimony is silent as to his having had any connection or transactions with plaintiffs. The exclusion of this deposition was without error. Before evidence of a conspiracy against a party is admissible, such party must first be proven to have been a co-conspirator with the person whose statements, out of the presence of such party, is proposed to be given in evidence. People v. Barkas, 255 Ill. 516.

Defendants offered certified copies of certain documents in a bankruptcy proceeding against Seiden in the District Court of the United States for the Southern District of New York. The offer was rightfully denied on the grounds of irrelevancy and lack of proper authentication.

There is no evidence in the record either admitted or excluded which in any manner connects plaintiffs with the forgery of the check of defendants mailed to plaintiffs in payment of the account in suit.

There is no reversible error in the record and the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Charles F. Hoff, Appellee, v. L. Gould & Company, Appellant.
    Gen. No. 21,789.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by Charles F. Hoff, plaintiff, against L. Gould & Company, defendant.
    The evidence showed that the defendant is a wholesale dealer in wooden and willow ware and house furnishing goods in Chicago, and until July 6, 1909, owned and operated horses and wagons, etc., and used the same in the hauling of its goods. On that day defendant discontinued doing its own teaming and sold all of its horses, wagons, harness and other teaming equipment to the plaintiff. On the same day the parties entered into a contract which provided inter alia that plaintiff should do all defendant’s teaming work for a period of five years; that it should for that purpose furnish defendant six double and two single teams with wagons, drivers and other necessary adjuncts, for which plaintiff was to receive from defendant as compensation $1,000 on the first day of each month, during the life of the contract. There was also provision made for the supplying of additional teams as the exigencies of defendant’s business might require. Among the material conditions of the contract, plaintiff agreed that during the term of the contract he would keep the wagons well painted, have defendant’s name painted on them, and keep all the wagons, horses, harness, etc., in as good order and condition as the same were in when possession thereof was surrendered to plaintiff, and generally to carry on and conduct the teaming business incident to the business of defendant in a manner “satisfactory” to defendant. On failure of plaintiff to comply with the foregoing conditions in a manner “satisfactory” to defendant, the defendant might, on giving thirty days ’ written notice to plaintiff, declare the contract “forfeited and of no force or effect. ’ ’
    It was shown that plaintiff received the teaming outfit sold to him by defendant in first-class condition. The evidence showed that plaintiff kept the horses in an ungroomed condition; that the harness was not clean; that the. wagons were not “well painted” or kept clean, but were habitually dirty; that there were many holes in the wagon covers, causing rain to percolate through and damage goods transported in such wagons; that, moreover, plaintiff’s teamsters “loafed upon the job.”
    These conditions, when called to the attention of plaintiff, were not denied but excused. Plaintiff, in effect, replied on one occasion that he could not afford to live up to his contract. Defendant being dissatisfied with conditions, availed of the right reserved by the contract to terminate it, and on February 13, 1913, gave plaintiff notice that the contract would be determined thirty days from that date. Since March 15, 1913, plaintiff has not done any teaming for defendant.
    Abstract of the Decision.
    1. Contracts, § 387

      —when evidence sufficient to show breach. In an action on a contract, evidence examined and held to show that plaintiff had failed to carry out the contract in material and. essential particulars in accordance with its conditions.
    2. Contracts, § 387*—when evidence sufficient to show failure td perform contract in “satisfactory” manner. In an action on a teaming contract which required that plaintiff should perform the contract in a manner “satisfactory” to defendant, evidence examined and held to show that plaintiff did not perform the contract in such manner.
    3. Contracts, § 312*—what constitutes “satisfactory” performance. Where a contract provides that it is to he performed in a manner “satisfactory” to one of the parties, the provision must be construed as meaning that the performance must be such that the party, as a reasonable person, should be satisfied with it.
    Action was brought on the ground that defendant wrongfully terminated plaintiff’s contract, and to recover damages resulting to him from such alleged wrongful act. From a judgment for plaintiff for $2,916, defendant appeals.
    Chytraus, Healy & Frost, for appellant.
    Charles V. Barrett, 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:
    Aurora, Elgin & Chicago Railroad Company for use of Rochester Bridge Company, Plaintiff in Error, v. National Surety Company, Defendant in Error.
    Gen. No. 21,841.
    1. Indemnity, § 9

      —when indemnity bond not for benefit of third persons. In action by the obligee of an indemnity bond against the surety for the use of a third person, the condition of the bond examined and the bond held not to be for the benefit of third persons.
    2. Principal and surety, § 6*—when obligation of surety strictly construed. The obligation of a surety must be strictly construed and cannot be extended by implication or construction.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Earl J. Walker, for plaintiff in error; George W. Holman, of counsel.
    Charles H. Burras, for defendant in error.

      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.

Plaintiff, hy this writ of error, seeks to reverse a judgment of nil capiat entered against it on a trial before the court without a jury.

This action is based upon an indemnity bond, in which W. A. Melcher was principal and the defendant was surety and the plaintiff railroad company was the obligee. The bond was given to indemnify the railroad company against loss and damage which it might suffer by the failure or default of Melcher in a certain contract which Melcher had entered into with the railroad company to build and construct a certain addition to its engine room at its Batavia power house. Melcher made a contract with the usee, Rochester Bridge Company, to furnish certain materials to Melcher for the carrying out of his contract with the railroad company, which it did. Melcher owed the usee bridge company $2,943.41 for material furnished Melcher and used by him in building the addition to the railroad company’s engine room, and failed to pay it. The theory of plaintiff’s claim is that defendant was liable to pay Melcher’s debt to the bridge company in virtue of the bond above recited.

The defense set up is: “ That the bond set up in the plaintiff’s statement of claim was not a bond given for the benefit of persons furnishing labor and material to the principal herein, W. A. Melcher, in the construction of the work under the contract between said W. A. Melcher and the Aurora, Elgin and Chicago R. R. Co., but was written.for the use and benefit of the obligee in said bond, to-wit: the Aurora, Elgin & Chicago R. R. Co.” Our decision must rest upon the legal interpretation of the condition of the bond, the subject-matter of this suit. It is as follows:

“Now therefore, the condition of the above obligation is such that if the above bounden principal shall well and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said principal kept, done and performéd, at the time and in the manner in said contract specified, and shall pay over, make good and reimburse to the above named obligee, all loss and damage which said obligee may sustain by reason of failure or default on the part of said principal, then this obligation shall be void, otherwise to remain in full force and effect. ’ ’

At the close of plaintiff’s case the court found the issues in favor of the defendant and entered judgment accordingly.

The bond under consideration was not made for the benefit of third parties and it cannot be so construed or held by any language used or condition to be found in it. It was strictly inter parties and was to indemnify the railroad company for any loss or damage accruing to it from the breaching by Melcher of his contract with it. The liberal construction of the bond contended for by plaintiff would not result in so expanding the obligation as to include any claim of the bridge company against Melcher short of reading into the bond a covenant or condition which is not to be found in it. Parties make their own contracts and courts have no power to impose conditions not made by the parties themselves. If the plaintiff railroad company had desired to have subcontractors or others protected, it should have been so nominated in the bond. The bond in this record in no particular is comparable to bonds in which third persons were granted relief in the cases cited by counsel for plaintiff. This case is more akin in fact and principle to Searles v. City of Flora, 225 Ill. 167, and the ruling in that case governs this. The party indemnified was the railroad company, and for its loss or damage only can defendant be held liable under its bond. As the court said in the Searles case, supra, so say we here: “We think the evidence in this case clearly shows that the bond and contract were not entered into with the intention of securing third parties as to labor and material furnished in the completion of said contract, but they were entered into for the purpose of securing * * *” the Aurora, Elgin & Chicago Railroad Company, “and it alone, in this respect.” Nothing whatever is said in the bond about paying third parties for material or anything else. It was made to indemnify the defendant railroad company and none other. We cannot extend the liability of defendant by construction. On the contrary, the obligation óf a surety, which is the obligation of defendant, must be strictly construed, and it cannot be held under the terms of its undertaking by implication or construction. City of Sterling v. Wolf, 163 Ill. 467.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Bradford & Company, Inc., Appellee, v. United States Tent & Awning Company, Appellant.
    Gen. No. 21,964.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by Bradford & Company, Inc., plaintiff, against United States Tent & Awning Company, defendant.
    The affidavit of meritorious defense was on motion of plaintiff stricken from the files, and a judgment, as in cases of default (the damages being assessed by a jury under the instructions of the trial judge), entered in favor of plaintiff for $3,508.03, and defendant appeals.
    Plaintiff contended that the contract was one of sale, and defendant that it was a consignment contract, and that under the contract it acted as plaintiff’s ' factor and that the title to the goods remained in. plaintiff.
    The material parts of the contract were that defendant was to handle the entire line of pillow tops manufactured by plaintiff “on a consignment basis” subject to a five per cent, return. Prices were stated which were to be paid by defendant to plaintiff as soon as money was received by defendant from purchasers; that “a full settlement is to be made November 1, 1914, for all stock on hand or in transit in excess of five per cent, of the total shipments, said five per cent, to be subject to” (plaintiff’s) “disposition and to be in first class merchantable condition as originally shipped.” Defendant bound itself not to sell the goods for less than fifteen cents advance on the prices fixed. It was not disputed under this contract that defendant received from plaintiff pillow tops to the value of $6,207.69, or that defendant was entitled to a credit of $2,689.66, which included goods returned of the value of $324.50.
    Abstract of the Decision.
    1. Damages, § 221

      —when assessment 6y jury unnecessary. Where defendant’s affidavit of meritorious defense is stricken from the files on plaintiff’s motion, assessment of damages by the jury is not necessary unless requested, the sworn statement of claim being sufficient from which to make such assessment.
    2. Municipal Court of Chicago, § 13*—what procedure proper where affidavit of defense stricken. Where defendant’s affidavit of meritorious defense is stricken from the files on plaintiff’s motion, the cause should proceed on the assessment of damages as in cases of default, defendant not being entitled to read its affidavit of defense to the jury but only to cross-examine plaintiff’s witnesses in diminution of damages.
    3. Municipal Court of Chicago, § 13*—what effect of striking affidavit of defense. Under the practice in the Municipal Court of Chicago, a motion to strike the affidavit of defense is tantamount to a demurrer to defendant’s pleading and, when sustained, so far puts defendant out of court that he can only cross-examine witnesses for the purpose of minimizing damages.
    4. Contracts, § 171*—lohat rule of construction. In construing a contract, all of its parts must be considered.
    5. Contracts, § 181*—when intent of parties controlling. The designation which the parties to a contract give to it are not binding upon the court in construing it, but its character and the rights of the parties may be determined by ascertaining the intention of the parties from all the language used in the contract.
    6. Sales, § 3*—when contract one of sale and not consignment contract. In an action on a contract, terms of contract examined and contract held to be one of sale and not a- consignment contract.
    Litzinger, McGurn & Reid, for appellant.
    Musgrave, Oppenheim & Lee, 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 Pam

text:
    Anton Papszycki, Defendant in Error, v. John Gurka, Plaintiff in Error.
    Gen. No. 19,494.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Animals, § 14

      —when persons not bound to exercise care to avoid being bitten by domestic animals. Persons are not hound to exercise care to avoid being injured by domestic animals not naturally dangerous without notice of the vicious tendencies of the particular animal.
    2. Animals, § 39*—when plaintiff need not allege and prove due care to avoid injury -from animal. In an action to recover damages for being bitten by a dog, it is not necessary for plaintiff to aver and prove due care and caution for his own protection, such facts being matter of defense.
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at. the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Anton Papszycki, plaintiff, against John Gurka, defendant, in the Superior Court of Cook county, to recover damages for being bitten by defendant’s dog. To reverse a judgment for plaintiff for eight hundred and fifty dollars, defendant prosecutes this writ of error.
    W. G. Anderson and E. H. Wright, for plaintiff in error.
    Chytraus, Healy & Frost, 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 Pam

delivered the opinion of the court.

3. Appeal and ebbob, § 1313 —when presumed that case tried on regular call of calendar. Where nothing to the contrary appears in the record, it will be presumed that a case is tried on the regular call of the calendar.

4. Damages, § 228*—when notice to defendant after default not prerequisite to holding inquest to assess damages. Where a default is entered in an action tried on the regular call of the calendar, notice to the defendant after such default is not necessary to enable the court to hold an inquest for assessing damages.


text:
    Marc Sherwood, Defendant in Error, v. F. O. Smolt et al., M. W. Sheafe, Plaintiff in Error.
    Gen. No. 20,423.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Rehearing denied April 26, 1916.
    Statement of the Case.
    Bill in chancery by Marc Sherwood, complainant, against F. O. Smolt, M. W. Sheafe, Ulric King, the American-Mexico Mining & Developing Company, a corporation, G. V. Penwell, J. E. Morris and Fred Matters, defendants, to declare and enforce an express trust imposed on certain .personal property to secure the payment of a loan made to the defendant corporation,, which fund came into the hands of defendants Sheafe and Smolt. To reverse a decree that defendant Sheafe pay complainant the sum of $7,725, such defendant prosecutes this writ of error.
    John F. Higgins, for plaintiff in error.
    Charles Hudson, for defendant in error.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1270

      —when presumed that there is sufficient evidence to sustain findings of facts in decree. Where the record in the Appellate Court in a suit in equity contains no certificate of evidence, it will be presumed that there was sufficient evidence to sustain the finding of facts recited in the decree, and the only question on appeal in such case is whether or not there is a sufficient finding of facts to sustain the decree.
    2. Equity, § 515*—when finding of facts sufficient to sustain decree. On a bill in equity to declare and enforce against certain personal property of a mining corporation an express trust for money loaned to it by its president for smelting ore, it being agreed that the proceeds of the ore should be held by the company as a trust fund for the payment of the loan, where a decree in favor of the complainant made a finding of the following facts as its basis:
    That at the time of making the agreement defendants were in 'direct control of the affairs of the mine, and had charge of the output and reduction of the ore; that defendants represented that it was for the interest of the corporation to smelt the ore already mined, and requested the loan, which plaintiff and others accordingly made; .that on completion of the smelting operation complainant applied .to the officers of the corporation for an accounting and payment, which defendants from time to time promised to make, putting complainant off with promises and representations, up to and including the time of the decree, held that the finding warranted the reasonable inference that the court also found as a fact that the act of defendants in making the agreement was either authorized or ratified by the company.
    3. Equity, § 515*—when decree for payment of money by officers of corporation warranted by finding. In a suit in equity to declare and enforce an ’ express trust against certain personal property for inoney loaned to a mining corporation on an agreement made by its officers that the proceeds of certain sales of smelted ore should be held as a trust fund for the payment of the debt to which bill such .officers were made parties, a decree that such officers pay a sum of money to complainant is warranted by a finding that the certain sums were collected from the sale of the ore by a defendant, who remitted it to another defendant, and that the two dissipated such fund, or a large portion of it, such fund coming into the hands of such defendants as a trust fund for plaintiff.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Appeal and ebbob, § 734 —when affidavits may not be considered on review of decrees on petition to set aside decree in- equity. Affidavits attached to a verified petition to set aside a decree in equity, or affidavits filed after the filing of such petition, cannot be considered on review unless it appears from the record that such affidavits were considered by the court below in passing on the motion to vacate the decree.

5. Appeal and ebbob, § 734*—when record must contain affidavits in support of motion to vacate decree in equity. The fact as to whether the court below, in passing upon a motion to vacate a decree in a suit in equity, considered affidavits filed in support of such motion, or attached to the petition, can only be made to appear by making such affidavits part of the record certified to by the judge who heard the cause.

6. Appeal and ebbob, § 1268*—when action of court in overruling motion to vacate decree presumed correct. On review of a decree in a suit in equity, where there is no certificate to show that any affidavits were considered by the court in overruling a motion to vacate the decree, such action must he presumed to be correct.

7. Appeal and ebbob, § 855*—what certificate of evidence must contain. Affidavits filed in support of or attached to a verified petition for the vacation of a decree in equity are not part -of the record on review unless preserved by a certificate of evidence.

8. Appeal and ebbob, § 855*—what certificate of evidence must contain. A verified petition for the vacation of a decree in equity is in the nature of an affidavit, and is not part of the record on review unless preserved in the certificate of evidence signed by the trial court.

9. Equity, § 56*—when objection by defendant that plea of co-defendant not disposed of without merit. In a bill to enforce an express trust, where there were several defendants, one of whom rested on a plea to the jurisdiction without answering, an objection by another defendant that the plea was not disposed of held without merit.

10. Equity, § 399*—when objection of defendant that codefendant not served without merit. In a hill to enforce an express trust, where there were several defendants, an objection by one of them that another was not served held without merit.