text:
    Franklin D. Kelly et al., Plaintiffs in Error, v. Edwin Lehmann et al., Defendants in Error.
    Gen. No. 6,652.
    1. Insurance, § 71

      —when vendor of property is estopped to claim interest in same. A vendor who, in negotiating the sale, executed instruments and gave verbal assurances to an insurance company with which the purchaser was negotiating for a loan of the funds necessary to make the purchase and to a title and trust company whose title policy the insurance company required of the purchaser that such purchaser was to take the title in fee with no secret agreement or trust in favor of the vendor, as the two companies required should be done before they would enter into the transaction, is estopped, as against the insurance company and title and trust company, to claim any interest whatever in the premises.
    2. Corporations, § 406*—when grantor cannot attack conveyance to corporation. It is contrary to public policy to permit one who conveyed premises owned by him to a corporation organized by him in payment of his subscription to its capital stock, which conveyance was accepted by it as such payment, to cancel or qualify such conveyance thereafter, nor is such conveyance affected by the fact that there was a secret and unlawful purpose in organizing the corporation, which does not appear in the purposes expressed in its application for a charter and the certificate of incorporation or charter, the purposes set forth in which were lawful, nor by the fact that after such conveyance the Secretary of State issued a certificate "of forfeiture of the corporate charter for failure to file an annual report and pay a fee therefor, but such conveyance operated to extinguish any secret right to repurchase or equities of the grantor theretofore existing in such property.
    3. Corporations, § 19*—when unlawful purpose of incorporators will not render corporation unlawful. Where the purposes of a corporation as set forth in its application for incorporation and certificate of incorporation or charter are lawful, it is not rendered unlawful by the fact that the person organizing it had a secret, unlawful purpose for which he intended to Use it.
    4. Corporations, § 624*—what is effect of forfeiture for failure to file annual report. A certificate of forfeiture of the charter of a corporation, issued by the Secretary of State for its failure to file an annual report and pay the fee therefor, does not deprive the corporation of its corporate existence, but is merely prima facie evidence of nonuser.
    5. Corporations, § 621

      —when nonuser of franchise exists. Nonuser of a corporate franchise can be finally determined only by a court of competent jurisdiction.
    6. Corporations, § 412*—when grantee cannot avoid equity in conveyance because of secret agreement. Where a stockholder who owns nearly the whole of the capital stock of a corporation deals with the corporation as his own, equity will not permit one to whom the corporation conveys property to which it holds the legal title to avoid any clear equity arising between him and such stockholder from any secret agreement between them merely because the legal title came from the corporation by the stockholder’s procurement and not from the stockholder personally.
    7. Mortgages, § 17*—what determines nature of deed or mortgage. In determining whether a transaction was a sale or merely a taking of title in trust by the grantee to secure the payment of a loan, the form of the instruments and the manner in which they are executed are not conclusive, but the transaction is controlled by the intention of the parties as disclosed by the surrounding circumstances.
    8. Mortgages, § 14*—what are essentials of deed as mortgage. A mere agreement to reconvey does not render a deed a mortgage, but it is essential to such end that there be a debt and an intention to secure its payment.-
    9. Contracts, § 19*—when law will imply contract to repay money. Where one, at the request of another, borrows money and .pays a debt owing to a third person by such other, the law imposes an obligation to repay with lawful interest.
    10. Frauds, Statute of, § 59*—when express trust resting in parol does not arise. The Statute of Frauds is a complete defense to an express trust in lands claimed to arise out of an oral agreement.
    11. Frauds, Statute of, § 60*—when writing is necessary to establish resulting trust. A resulting trust cannot arise from any verbal agreement between the parties.
    12. Trusts, § 251*—what evidence is necessary to establish trust. Oral proof to establish that the grantee of property holds in trust for the grantor and that the conveyance is but a mortgage and that the grantor has the right to redeem must be clear, satisfactory, convincing, definite, unequivocal.
    13. Reference, § 10*—what is effect of master’s findings. The findings of fact by a master on a reference to take the proofs and report them and his conclusions of law and fact thereon do not have the weight of a jury’s verdict, and the approval of his report by a chancellor, who has not seen or heard the witnesses, does not have the weight given the overruling of a motion for a new trial by a judge who has seen and heard the witnesses.
    14. Mortgages, § 685

      —what agreements will not bar redemption. On a bill in equity to redeem certain premises, certain transactions of complainants prior to the transfer of the property tending to mislead defendant as to its rental value, held not to bar complainants of their equity of redemption in view of his failure to repudiate the lease involved in the transaction, and since it was not shown that he would not be able to procure such a rental as the lease called for.
    15. Appeal and error, § 1678*—when error in refusing filing of amended bill is waived. Error of the lower court in refusing to permit a second amended bill to be filed is waived when not argued in the opening brief of plaintiff in error.
    16. Pleading, § 231*—when refusal of leave to file amended bill is not error. Where complainant has filed an original bill and a first amended bill, each of which were sworn to, it was not error to refuse a motion, in support of which no showing is made, for leave to file a second amended bill, not sworn to, which was, in part, a fuller restatement of the bill on which the- case was tried, and also stated new matters and stated some matters in a different way from that in which they had been previously stated and stated some matters not supported by the proofs on file.
    17. Appeal and error, § 855*—what presumption arises when certificate of evidence is not filed. Where, by reason of the failure to preserve a certificate of evidence, the Appellate, Court has no means of knowing what showing, if any, complainant made in the lower" court in support of its motion to file an amended "bill, it will be presumed that such showing, if made, was insufficient.
    18. Appeal and hbroe, § 1755*—when decree is affirmed by divided court. Where one of the judges of the Appellate Court takes no part and the other two stand one for affirmance and the other for reversal, the decree will be affirmed.
    Error to the Circuit Court of Peoria county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed May 7, 1920.
    Charles R. Holden and Barnes, Magoon & Black, for plaintiffs in error.

      Quinn & Quinn and Mansfield & Cowan, for defendants in error.

      See Illinois Notes Digest, Yols. XI to XV, pod Cumian Use 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, Yole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Franklin D. Kelly and Marguerite Dorrance filed in the Peoria circuit court a bill in equity against Edwin Lehmann and Minnie R. Lehmann, his wife, to redeem certain premises in the City of Peoria, at the westerly corner of Jefferson avenue and Main street, extending 54 feet on Jefferson avenue and 111 feet on Main street, formerly known as the “Old Library Building.” Lehmann had the title in fee of record. Mrs. Lehmann had no interest except an inchoate right of. dower, and her interest will not be further noticed. A demurrer was sustained to the bill of complaint and an amended bill was filed. Defendants answered, denying that complainants had a right to redeem and setting up the Statute of Frauds. A replication was filed. The master in chancery had previously acted as counsel for some of the parties, and the court referred the case to a special master to take and report the proofs with his conclusions of law and fact. Proofs were taken and an elaborate report was prepared by the master, with findings for defendants. Objections • were filed thereto by complainants and they were overruled, and the report was filed. Exceptions to said report were filed by complainants. Thereafter, on application of complainants, a change of venue was granted from the judges of the circuit court and a judge from another circuit was called in, and he heard the case upon exceptions to the master’s report and overruled said exceptions. After the master’s report was filed complainants asked leave to file a second amended bill, which they presented. At the hearing -of the cause that motion was denied. The bill was dismissed for want of equity. Complainants have sued out a writ of error to review said decree.

Kelly and Dorrance agree in testifying that for certain valuable considerations moving between them long ago, Dorrance is the equitable owner of one-half of all interests which Kelly has in said premises. There was no proof to thfe contrary. If Kelly has a right to redeem, we do not see that it is material to the interests of Lehmann whether Dorrance has a right to share in that redemption. If Kelly is entitled to redeem, that right should be extended to Dorrance, under the evidence in this record. We shall treat their interests as identical. Kelly acquired the fee and placed successive incumbrances thereon. In 1909, to discharge prior incumbrances, he gave a trust deed thereon to John M. Elliott, ‘ trustee, securing certain notes which afterwards became the property of John F. Nye, and which were merged in a foreclosure decree in' 1911. In 1909, Kelly organized a corporation, named First Trust & Safe Deposit Company, hereinafter called the Deposit Company. Kelly subscribed for nearly all the capital stock, and by his action and that of the proper officers of the Deposit Company, he conveyed these premises to the Deposit Company (subject to certain incumbrances) in payment for his subscription to the capital stock. This capital stock was in his name, but he and Dorrance agree that she was the equitable owner of one-half of the capital stock subscribed by Kelly. Kelly negotiated another loan with John W. McDowell and deposited a part of this capital stock as security, and he and Dorrance also gave McDowell a quitclaim deed of the premises. The Nye decree of foreclosure was entered September 25, 1911. The McDowell'debt came due about that time, and there were two judgments of record against Kelly for small sums. Kelly made a written proposition to Thomas H. Webb to cause the Deposit Company to convey said premises to Webb by warranty deed for $125,000; that, if Webb accepted, he should furnish Kelly sufficient money to take up the McDowell indebtedness and to release the shares of stock McDowell held as collateral, and that said note and stock should be turned over to Webb; that Webb should pay the Nye decree, interest and costs, and satisfy the two small judgments, and the rest of the purchase price should be paid to Kelly in cash; that Kelly should deliver all his stock in the Deposit Company to Webb, and Webb was to give Kelly a lease of the premises for 18 months from October 9, 1911, with an option reserved to Kelly therein to buy said, premises within said 18 months for $137,000. Webb in writing accepted said proposition, but with the further written qualification that neither Kelly nor the Deposit Company should incur any indebtedness to Webb, except for the rental and taxes provided in said lease, and that Kelly ivas not to be under any obligation to exercise said option, and that in carrying out the contract, Webb would not obtain the title as mortgagee or as security for any indebtedness, but that Webb’s title to the premises was intended to be and.would be absolute and unconditional and without redemption by Kelly or any other person, and that Kelly’s rights thereafter in the premises would only be those given him by the lease. This proposition was carried out. The Deposit Company held meetings of the stockholders and of the directors and authorized conveyance of said premises to Webb and such conveyance was made by the Deposit Company, first by a deed executed by its vice-president and acting secretary, and afterwards by another deed executed by its president and secretary. Webb paid the McDowell debt and the small judgments referred to and the Nye foreclosure decree, the total sum so expended being $117,830, and the balance of the $125,000 was paid by Webb by the direction of Kelly. McDowell and wife quitclaimed to Webb,

The building on said premises was three stories high. Before the conveyance to Webb, it had been seriously damaged by fire. The roof was temporarily repaired, but the top floor was practically unfit for use thereafter. The option which said lease from Webb to Kelly gave to Kelly to purchase the premises for $137,000 in cash was to run until April 9, 1913. On April 8, 1913, complainants assigned to Webb all leases they had made to any part of said premises prior to that date, and directed all tenants to attorn and pay to Webb all rents thereafter accruing. Kelly surrendered said lease on that date, and the complainants quitclaimed to Webb all their interest in said premises, and Webb executed to Kelly a new option to purchase the premises for $153,000 in cash until 3 o’clock p. m. of November 1, 1913. Webb leased to Kelly all the office rooms in the second story of said premises for a nominal rental of $1.00 per month to the last day of November, 1913.

In June, 1913, Dorrance in behalf of both complainants entered into negotiations with Lehmann. Prior to that time Kelly and Dorrance had been negotiating with various financial institutions to secure some financial arrangement concerning this property by which they could secure' a deed from Webb. Each of these efforts had been a failure. Lehmann decided to assist them, and advanced them various sums of money for" their personal needs, and the complainants agreed to assign him their option from Webb to purchase the premises. Dorrance had sought to borrow money of the Massachusetts Mutual Life Insurance Company of Springfield, Mass., but had failed. Lehmann, accompanied by Springer, the Chicago agent of the insurance company, went to Springfield, Mass., and obtained a promise of a loan of $150,000, on the property, on condition that Lehmann obtain the title and secure the loan by a first mortgage lien on the premises, which loan should be closed about October 15, 1913, of which sum $100,000- should then be paid over to Lehmann and the balance should be paid him when he had expended not less than $70,000 in improvements on the premises. As Lehmann must at once pay Webb $153,000, and must spend $70,000 in improvements, a total of $223,000, before he could draw the last $50,000 from the insurance company, it became necessary for him to arrange to get at least $75,000 on his own credit, and this he was able to arrange with his brother, Arthur L., and perhaps other relatives, upon complainants representing to Lehmann and his brother that the title Lehmann would acquire would be absolute and unconditional, free of all trust agreements, secret or otherwise, and without the reservation of any rights or equities therein to the complainants or either of them. Lehmann then executed to the insurance company his notes for $150,000 with a mortgage upon the premises to secure the same. Before the insurance company would enter into this arrangement they required and received from Lehmann and Kelly and Dorrance a statement that Lehmann was to have an absolute title and was not to hold the property in any trust, secret or otherwise, for the complainants or anyone else. The insurance company also required, as a condition precedent, that Lehmann should secure a guaranty of the title from the Chicago Title & Trust Company. The latter, before delivering such a guaranty, sent an agent to Peoria, who got together Kelly, Dorrance, Lehmann and his brother, Arthur, and received personal assurances from them that Lehmann was to have the absolute title and that Kelly and Dorrance were to have no interest therein. Thereupon, these arrangements were all carried out. Webb was paid under the last option, and conveyed the premises to Lehmann. The Nye foreclosure decree was released. The title was made clear of record, in Lehmann, and the mortgage to the insurance company was recorded. Complainants quitclaimed their interests to Lehmann and in the same instrument also assigned to Lehmann their interest in the option. This instrument was recorded, and thereby Lehmann became the owner in fee of the premises, so far as the records disclosed, free of all claims of Kelly and Dorrance, except under the lease to Kelly which would expire on the last day of November, 1913, but subject to said mortgage to the insurance company.

Before Dorrance had made application to different financial institutions for a loan upon the property, she had caused an architect to prepare plans for a reconstructed building of six stories and also for a new building twelve stories high. As we understand it, these plans did' not include any details or specifications of the building to be constiucted, and they therefore were necessarily comparatively unimportant and of slight value. After Lehmann had secured the title and after Kelly’s lease had expired at the end of November, 1913, Lehmann discarded the architect engaged by Dorrance and discarded the plans, and made preparations to remove the old building. The proof is that the walls of the old building were insufficient to enable him to get authority from the city under its ordinances to even raise the old building to five stories. There was much controversy between Dorrance and Lehmann because of her insistence that he should employ the architect whom she had employed and make the building according to the plans she had procured and of the color which she had selected. Lehmann did not yield, but let a contract for the destruction of the old building and that work was begun about the time the original bill was filed, which was April 30, 1914. Before that bill was filed, and also afterwards and before the reference to the master, various written propositions for a settlement were submitted by each side to the other and svere rejected. Complainants’ contention is that, notwithstanding the instruments which they have executed and tiie verbal assurances they have given to the insurance company and to the title and trust company that Lehmann was to take the title in.fee with no secret agreements or trust in favor of complainants, nevertheless the different persons to whom they have from time to time conveyed these premises have always held them in trust for Kelly and Dor ranee, and it has always been the secret understanding with Lehmann that they may pay off the insurance company mortgage and have the premises conveyed to them. Undoubtedly, as to the insurance company and the guaranty policy of the title and trust company, complainants are estopped to claim any interest whatever in the premises. It is no doubt possible for Kelly and Dorr anee to have a right to redeem enforceable as against Lehmann.

Kelly conveyed the premises to the Deposit Company in payment of his subscription to the capital stock of that company. The Deposit Company accepted the conveyance as such payment.- It would be contrary to public policy to permit Kelly after-wards to cancel or qualify that conveyance. The Deposit Company took the entire title, subject to the incumbrances specified in the deed; and its conveyance to Webb was without any secret liens or trust agreements made or authorized by the Deposit Company. But complainants urge that the purpose for which the corporation was organized was not authorized by law, and therefore the conveyance to the Deposit Company should be disregarded. The purpose expressed in its application for incorporation, and in its certificate of incorporation or charter, was within the statute. If Kelly in organizing it had a secret, unlawful purpose, for which he intended to use the company, that does not make the corporation unlawful; and his secret purpose cannot invalidate his subscription to the capital stock or his conveyanee to the corporation, intended to pay his subscription and accepted by the corporation as snch payment. Under date of March 16, 1910, the Secretary of State issued a certificate of forfeiture of the charter of said corporation for failure to file an annual report and to pay a fee of $1.00 therefor. This certificate did not deprive the company of its corporate existence. It is merely prima facie evidence of nonuser, and nonuser can be finally determined only by a court of competent jurisdiction. People v. Rose, 207 Ill. 352; Gilmer Creamery Ass’n v. Quentin, 142 Ill. App. 448; Woodlawn Social Ass’n v. Anderson, 187 Ill. App. 507. But if said certificate worked a forfeiture of its charter rights in general, still the Deposit Company had 2 years in which -to sell its real estate, and its first deed to Webb was made in 1911, and was therefore valid. Moreover, this is a collateral proceeding, and the Deposit Company is not a party here. We therefore hold that the conveyance to the Deposit Company extinguished any secret equities or agreements prior to that time which permitted Kelly to redeem or repurchase the premises. That, however, did not prevent Kelly from making a secret agreement with Webb when he arranged to have the Deposit Company convey said premises to Webb. Though the legal title was hi the Deposit Company, yet Kelly owned all its capital stock, and if he dealt with it as his own, equity would look at the substance and not the form, and would not permit Webb to avoid any clear equity which arose between Kelly and Webb from any secret agreement they may have made, merely because the legal title came from the Deposit Company by Kelly’s procurement and not from Kelly personally.

The question whether Webb held the title as a purchaser or in trust for Kelly and Dorrance is only of importance in case the court should believe that it was held by Webb in trust and that that fact was communicated by Kelly or Dorrance to Lehmann, before Lehmann took the title. The members of the court who join in this decision are divided in opinion on this subject. One of them is of opinion that Webb was merely a lender of money who held this title as security for its repayment; while the other is of opinion that Webb became the absolute owner in fee, subject to the written option to purchase which he gave Kelly.

Complainants claim that the transaction between themselves and Lehmann was either a loan of money or was a tailing of the title by Lehmann in trust for Kelly and Dorrance. All the papers that were executed were to the contrary. That, however, is not conclusive against Kelly and Dorrance, as shown by numerous authorities, -and among them are the following: Tillson v. Moulton, 23 Ill. 648; Shaver v. Woodward, 28 Ill. 277; Preschbaker v. Feaman’s Heirs, 32 Ill. 475; and Darst v. Murphy, 119 Ill. 343. In Preschbaker v. Feaman’s Heirs, the court said:

‘ ‘ To determine whether such a transaction is a sale, or a mortgage to secure the payment of the money advanced, the intention of the parties at the time must control. To ascertain that intention the transaction must be viewed in the light of all the surrounding circumstances. In equity, the form of the transaction is not regarded, but the substance must control. It is not the rule in equity that to constitute a transaction a mortgage, it should be so expressed in the instrument conveying the land, but it may appear by a separate agreement; nor is it necessary the deed and the defeasance, in terms, refer to each other. Their connection may be established by parol evidence, and the defeasance need not be even in writing. The conveyance may be absolute on its face, and yet be shown by parol that it was intended as a security for the payment of money, when it will be treated as a mortgage. Miller v. Thomas, 14 Ill. 428. In such a case all of the attendant circumstances will be considered, in ascertaining the true character of the transaction. It is from them the intention of the parties can be ascertained.”

We understand that to be a correct statement of the rule now prevailing \ in this State. The original bill and the amended bill each charged that the deed to Lehmann was in fact as security for what Lehmann borrowed and advanced on the property at the request of complainants. These allegations were necessary, because a mere agreement to reconvey (if one had been made) did not render the deed a mortgage, but in order to make it a mortgage it was essential that there be a debt, and an intention to secure its payment. Caraway v. Sly, 222 Ill. 203, and Friend v. Beach, 276 Ill. 397, and cases cited in those opinions. This is often, though not always, evidenced by notes of the debtor, which the grantee in the deed retains. Neither Kelly nor Dorranee ever gave Lehmann a note or notes for the repayment of said $150,000 or any part thereof, or of any other sum connected with this transaction. But Lehmann borrowed the money at their request, and partly to pay the debt of Kelly to Nye, which was over $100,000, and Lehmann from the avails of the mortgage paid that debt, through Webb. In such case the law imposes ah obligation to repay with lawful interest. Davis v. Hopkins, 15 Ill. 519. Kelly therefore, by requesting Lehmann to pay the Nye decree against Kelly, or to furnish the money to Webb with which to pay it, became legally bound to repay Lehmann.

If there is here proof merely of an express trust, the Statute of Frauds set up in the answer is a complete defense. Delfosse v. Delfosse, 287 Ill. 251, 265; Miller v. Miller, 266 Ill. 522; Stubbings v. Stubbings, 248 Ill. 406; Evans v. Moore, 247 Ill. 60; Ryder v. Ryder, 244 Ill. 297; Lancaster v. Springer, 239 Ill. 472. A resulting trust cannot arise from any verbal agreement between the parties. Plummer v. Flesher, 246 Ill. 313; Wells v. Messenger, 249 Ill. 72.

There is much oral testimony introduced by complainants to show that Lehmann holds this property in trust for them and is in fact but a mortgage. There is much oral testimony introduced by Lehmann to prove that the oral testimony of complainants on that subject is untrue, and that there was not such an oral agreement. Oral proof to establish that relation and a right to redeem must be clear, satisfactory, convincing, definite, unequivocal, and, as one case says, by the most clear and convincing evidence. Gannon v. Moles, 209 Ill. 180; Rankin v. Rankin, 216 Ill. 132; Miller v. Mandel, 259 Ill. 314; Friend v. Beach, 276 Ill. 397; Rasch v. Rasch, 278 Ill. 261; Novak v. Kruse, 288 Ill. 363. The testimony upon the points material to the case as stated in the pleadings is very contradictory. The master saw and heard all the witnesses. He found that the case stated by complainants was not established. The court approved that conclusion. It is argued by defendants that the findings of fact by a master on such a reference to take the proofs and report them and his conclusions of law and fact thereon, confirmed by the chancellor, will not be disturbed by a court of review as to the facts, unless they are manifestly against the weight of the evidence. There are decisions to that effect. Siegel v. A. H. Andrews & Co., 181 Ill. 350; Ruddy v. McDonald, 244 Ill. 494, and cases cited in those opinions. But the rule now approved is that such a report of the master does not have the weight of a verdict of a jury, and that the approval by the chancellor, who has not seen or heard the witnesses, does not have the weight given to the overruling of a motion for a new trial by a judge who has seen and heard the witnesses; and that the master’s report, so approved, is advisory only. Larson v. Glos, 235 Ill. 583; Keuper v. Mette’s Unknown Heirs, 239 Ill. 586; Kelly v. Fahrney, 242 Ill. 240; Corbly v. Corbly, 280 Ill. 278; Oliver v. Ross, 289 Ill. 624; Nofftz v. Nofftz, 290 Ill. 36. We followed this rule in Kingman v. Kingman, 150 Ill. App. 456.

The oral testimony bearing upon complainants’ contention that there was an express oral eoiitract between complainants and Lehmann that he should take the title as security only, is not of that clear and convincing character required to establish the case for complainants. One of the members of this court participating in this decision is of opinion that, that conclusion is decisive that the decree of the court below should be affirmed. The other is of the opinion that the conduct of the parties, not disputed in the evidence, or upon which the proof greatly preponderates in favor of complainants, requires the conclusion that Lehmann was in fact a lender of money and credit upon the security of this property, and that complainants are entitled to redeem. As we are not agreed as to this proof of the conduct of the parties, a recital of that proof is omitted from this opinion.

Two other matters ought to be noticed. Before negotiations with Lehmann were begun, Dorrance entered into negotiations with the United Cigar Stores at Chicago to lease the first floor and the basement of the building, and an agreement which included an agreement for a lease was prepared, obviously by the United Cigar Stores Company, and executed by that corporation and by Dorrance, but not executed by Kelly except as a witness, and not intended to become binding as yet. The agreement for a lease provided that the lessee should pay $25,000 per year for the first 5 years for the first story and basement, and $30,000 the next 5 years, making a very high rental from that story. In another part of the agreement it was said that it should be subject to the conditions provided in Exhibit “A” the proposed form of the lease, attached thereto. Dorrance showed this agreement without Exhibit “A” to Lehmann, to show what a wonderfully paying property this would be when put in proper shape, and it appears to have been that agreement which first attracted Lehmann’s attention to the property, and which convinced him that it would be a paying investment. Before he agreed to take the property, he, with Dorrance, went to an officer of the proposed lessee and ascertained from him that the right to enter into such a lease could be extended for one year. After Lehmann had obtained the property and was entirely involved in the enterprise he went to have a proper lease executed with said lessee, and was then asked if he had read exhibit “A,” and it was then produced to him, not having been attached to the instrument which Dorrance showed to him. It then turned out that by Exhibit “A,” the United Cigar Stores was to have the comer store rent free for 10 years; that they were to collect what rent they reasonably could from the rest of the first floor and basement, but with an express provision that they should not be guarantors, and Kelly and Dorrance were to have, as the sole rent of the first floor and basement, whatever sum the United Cigar Stores obtained from the part it did not occupy, whether it was much or little. In other words, the lease was of no value as indicating what the real rental value of the premises was or would be, and by showing Lehmann only the lease without Exhibit “A” the latter was entirely misled. A serious question in the case is whether that use by Dorrance with Lehmann of that lease was such a fraud upon Lehmann that he ought to be released from permitting them to redeem the premises. Of course, it is not a sufficient answer to this to say that Lehmann might have called for Exhibit “A” and examined it. He did not do so, and he did not suppose that Exhibit “A” changed the rent. He did not, however, seek to repudiate the transaction or obtain any relief when he discovered Exhibit “A”; and it is not proved that he will not be able to get as large an amount of rent from the first story and basement of the new building as was provided by the part of the lease first shown him, and we conclude that complainants are not barred of their equity of redemption by reason of that transaction.

Some time after the master’s report had been filed in the circuit court, and exceptions had been filed thereto by the complainants, they made a motion for leave to file a second amended bill, and made a copy thereof a part of the motion. The court refused leave to file it, and that ruling is assigned for error. This point seems not to have been argued in the opening brief. If not it is waived. The original bill and the fibst amended bill were each sworn, to. The second amended bill was not sworn to. It was in part a re: statement, much more fully, of what was stated in the bill on which the case was tried. But it also stated new matters, and stated some matters differently from the way they had been previously stated, and stated some matters not supported by the proofs on file. In Taylor v. Taylor, 259 Ill. 524, on p. 534, it is held that the court may refuse to permit a sworn bill to be amended so as to contradict what had previously been sworn to, unless the complainants showed the original statement was a mistake; and if the new or different facts are such that they must have been known to complainants when the original bill was filed, that may be considered. To the like effect is Walker v. Struthers, 273 Ill. 387, where it is also said a reviewing court should not reverse for refusal to allow an amendment unless manifest abuse of discretion by the court is shown. See also Rasch v. Rasch, 278 Ill. 261. We have no means of knowing whether complainants made any showing in support of their motion for leave to file the second amended bill, for no certificate of evidence on that subject is preserved. If no showing was made, the motion was properly denied. If a showing was made, we must presume, in support of the ruling of the court below, that such showing was insufficient. The denial of this motion for leave to file the second amended bill is approved.

Mr. Presiding Justice Niehaus has deemed it his duty not to take part in this case in this court, because of the change of venue from him in the court below. The other members of this court are agreed on certain matters which we have stated in this opinion, but disagree as to the final result. We have given much consideration to the case. Two opinions have been prepared, one affirming and the other reversing and remanding with directions to enter a decree establishing complainants’ right to redeem, with reference to a master to take proof and state an account. Neither opinion has been adopted. It follows that the decree must be affirmed by operation of law, under the authorities cited by this court in Binder v. Langhorst, 139 Ill. App. 493. We have thought it proper to state the case and the conclusions upon which we agree, as this court did in Pittsburgh, C., C. & St. L. Ry. Co. v. City of Chicago, 144 Ill. App. 293.

Decree affirmed.

Mr. Presiding Justice Niehaus took no part.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    The People of the State of Illinois ex rel. Imogene Elbert, Appellee, v. Vernon Elbert, Appellant.
    1. Appeal and error, § 365

      —necessity for presenting question below. Courts of appeal will not consider defects in a record that can be waived' unless such questions are presented to the trial court.
    2. Contempt, § 74*—what objections not available on appeal. Defendant in an information for failure to support his wife and minor child who did not raise in the court below the want of verification of the information and did not object on such ground on hearing of the contempt proceeding against him for failure to pay the amount for support ordered by the court on the wife’s motion, but submitted to the jurisdiction of the court, cannot raise such objection on an appeal from the order entered in the contempt proceeding.
    3. Contempt, § 68*—what evidence admissible. On a hearing in a contempt proceeding against a defendant for failure to comply with the order entered on the wife’s motion on an information against him for failure to support his wife and minor child, the order entered in the main proceeding on the wife’s motion is admissible in evidence.

      4. Appeal and error, § 199

      —extent of Appellate Court’s jurisdiction as to constitutional question. While the question whether a statute attempting to authorize the filing of an unverified information by the State’s Attorney is void as in conflict with section 6 of the Bill of Rights cannot be determined by the Appellate Court primarily, where this question has been determined by the Supreme Court, the Appellate Court may apply the law so determined to the facts of any case.
    5. Criminal law, § 582*—when question waived. Where the objection to the failure to verify the information on which a proceeding is had is not raised until" the case has been remanded to the Appellate Court to be determined on its merits, such objection is waived.
    6. Appeal and error, § 1488*—when admission of evidence harmless. On appeal from a judgment had on a hearing before the court, it will be presumed that no improper evidence was considered by the court in determining the issues, and in such a case the admission of improper evidence is harmless error.
    7. Contempt, § 7*—when evidence supports order. On appeal from an order finding defendant guilty of contempt in failing to make payments for the support of his wife and minor child pursuant to an order entered on the wife’s motion in a proceeding on an information against him for nonsupport, evidence held sufficient to support the order in the contempt proceeding.
    Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 27, 1920.
    Barry & Morrissey, for appellant.
    Miles K. Young and W. B. Leach, for appellee; Sigmund Livingston, of counsel.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

The State’s Attorney of McLean county filed in the county court of that county an information in the first count of which he charged that appellant had unlawfully, wilfully and without reasonable cause neglected and refused to provide for the support and maintenance of his wife, then being in destitute circumstances, and in the second count that he had wilfully and without lawful excuse neglected and refused to provide for the support and maintenance of his daughter, then 3 years old, she then being in destitute and necessitous circumstances. This information was not verified by the State’s Attorney or any one else. A warrant was issued, appellant was arrested and brought into court and was released on bonds. Shortly thereafter and before the cause was called for trial on its merits, the wife of appellant' filed her motion under section 3 of the Act of the legislature of the State of Illinois in force July 1, 1915 [Callaghan’s 1916 Stats, ¶ 3433(3)] for an order on appellant requiring him to support his wife and their said child. Appellant shortly thereafter answered said motion and the same was heard and allowed and appellant was thereupon ordered to pay "to his wife $35 per month for the support of herself and their said child, from February 7, 1917, until his trial on the said information. The justness, correctness or sufficiency of that order has been in no way challenged, neither has any attempt been made to have it reversed, annulled or modified in any court. A few months after that order was entered, the wife of appellant filed her petition, in which she charged that appellant was in default in the payments of the stipend and praying that he be required to show cause why he should not be dealt with as for contempt. Appellant answered the petition setting up as a defense that he was earning but $28 per month as a farm hand; that he had no other income; that he bad been having trouble with his teeth making the services of a doctor and dentist necessary, and setting out with some detail how he had expended his earnings since the order in question was entered which included $135 paid to his wife. The court heard the petition, found appellant guilty of contempt and sentenced him to confinement in the county jail for the period of 30 days or until the order for the payment of the $35 per month should he complied with and that he pay the costs. From this order appellant prosecuted an appeal to this court. On consideration of the arguments and” record this court held that the proceeding- was a criminal one that could not be reviewed by an appeal from the judgment and dismissed the appeal. See People v. Elbert, 212 Ill. App. 82. The Supreme Court later held that the proceeding was a civil action, reversed the judgment of this court and remanded the cause to this court with directions “to find upon the issues of fact and render judgment on the errors assigned.” People v. Elbert, 287 Ill. 458. Neither in the county court nor in this court when the case was first before us, nor yet in the Supreme Court, was the question of the insufficiency of the information raised or considered. At this term of this court appellant in his new brief and argument now, for the first time, contends that because the information, by the filing of which this prosecution was begun, was not verified, therefore all the proceedings including the order appealed from are void.

It is a well-established rule that courts of appeal will not consider defects in a record that can be waived unless such questions are presented to the trial court. It is now settled law in this State that the want of verification to an information may be waived. People v. Honaker, 281 Ill. 295. The Supreme Court in that case speaking- of this identical question said: “Without doubt a defendant, may waive the benefit of the constitutional provision, and would waive it by failing to make any objection * Appellant with full knowledge of the defect in the information now complained of, as we are bound to presume, not only failed to point it out to the county court but when the petition of the wife of appellant under section 3, ch. 38, Rev. St. [Callaghan’s 1916 Stats. ¶ 3433(33)] above referred to, was filed praying for an order for the support and maintenance of herself and child pendente lite, appellant voluntarily came into court and filed his answer to such petition. In it he set forth his financial condition and his earning capacity and concluded the same in the following words: “Defendant-shows to the court that he is willing to comply with any reasonable order the court may make that is within his means.” Nothing in this answer even by implication or inference challenged the jurisdiction of the court to enter the order, but on the contrary the entry of an order as to such support and maintenance pendente lite was expressly invited, and no appeal or writ of error was prosecuted to review the order thereupon entered, The defect being one that could be waived and appellant having waived it in the original proceeding, it was too late, and in the nature of a collateral attack, to raise it on the hearing of this ancillary proceeding. Again, if he had desired and could have raised it in this proceeding, he should have done so in his answer to the rule to show.cause why he should not be dealt with as for contempt. This he did not do but contented himself with setting up his financial inability and the causes that g*ave rise to such inability and concludes with a prayer that the monthly payments required of him to be paid pendente lite be reduced, again expressly invoking the exercise of the jurisdiction of the court that he now denies.

On the hearing of the contempt proceeding in which the order appealed from was entered, appellant offered in evidence the order entered in the main proceeding under section 3, ch. 38, Rev. St. [Callaghan’s 1916 Stats. ¶ 3433(3)], the failure to comply with which gave rise to the contempt proceedings. To this offer appellant objected on the ground that the same was incompetent, immaterial and irrelevant and that the court had no jurisdiction to enter it. This objection was properly overruled and the order -was admitted in evidence. Appellant now contends that by that objection so made, the jurisdictional question was preserved for determination in the county court and is open for review here. That contention cannot be sustained for the reasons already stated and the further reason that it nowhere appears that the defect in the information now complained of was suggested to the court then or at any other time in support of the claimed want of jurisdiction of the court to enter the order in question.

It has been suggested that by prosecuting the appeal to the Appellate Court appellant again waived his right to raise the constitutional question. That contention is not maintainable. While it is true that the question whether the statute attempting to authorize the filing of an unverified information by the State’s Attorney was void as being in conflict with section 6 of the Bill of Rights could not be determined by the Appellate Court primarily, no reason appears why, when that question had already been determined by the Supreme Court, the Appellate Court may not apply the law so declared to the facts in any case. The fact, however, that on such appeal to this court the question was not presented until after the case had gone to the Supreme Court and had been remanded to this court to be determined on its merits is a waiver of the right to raise it now.

It is contended that the court erred in permitting certain evidence as to the financial standing of the father of appellant to be introduced on cross-examination. The hearing was before the court and it will be presumed that no improper evidence was considered in determining the issues. The error so committed was harmless.

It is lastly urged that the order appealed from was not supported by the weight of the evidence. If the testimony of appellant 'is true, and in truth and. in fact he has diligently to the best of his ability applied himself to earning money and has not been able to earn a sufficient sum to pay the amount awarded to his wife for support and maintenance over and above his own actual needs, then undoubtedly he should not have been found guilty of a wilful neglect to obey the order, but in determining- what were the actual needs of appellant, regard must also be had to the actual needs of his wife and child, for they are entitled to a fair proportion of his earnings and income, and the law imposes on him the burden of making his income as great as diligence and the exercise of ordinary intelligence will produce. A failure in that respect is as serious a neglect of duty as it would be to fail to properly apply funds actually earned and received, to the satisfaction of the order referred to. The trial court saw the witnesses and heard them testify and was better able to determine the weight and preponderance of the evidence than we are from the transcript of it, and apparently did not regard the evidence of appellant as entitled to much weight. We are not prepared to say the findings of the court are manifestly wrong. The order of the county court is affirmed.

Order affirmed.


text:
    Lee Bullard, Appellant, v. Nora J. Mason et al., Appellees.
    1. Creditors’ suit, § 15

      —when creditor will not be awarded excess on redemption of property. Where a judgment creditor of a mortgagor redeems the mortgaged land from the foreclosure sale under an execution on his judgment in the sheriff’s hands and, upon the sale of the mortgaged property, the purchaser, also a judgment creditor, pays to the sheriff the amount due the redeeming creditor under the redemption proceeding and his execution, and retains and applies the excess of such purchase price to his own judgment, a court of equity will not, on a bill in the nature of a creditor’s bill brought by a third judgment creditor, award such creditor a lien on such excess to the extent of his judgment.
    2. Creditors’ suit,' § 9*—what debt cannot be reached by bill in chancery. A debt due a debtor cannot be reached either by a bill in chancery or in a garnishment proceeding.
    Appeal from the Circuit Court of Macoupin county; the Hon. Prank W. Burton, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    P. McWilliams, for appellant.
    Thomas Rinaker, for appellees.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Lands belonging to Nora J. Mason were sold at foreclosure sale on March 4, 1916. The Carlinville National Bank, Crabtree & Melton and Lee Bullard were made defendants in the bill for foreclosure as judgment creditors. The Carlinville National Bank judgment was obtained March 4, 1915, and was for $239.99. The Crabtree & Melton judgment was obtained March 26, 1915, and was for $139.40, and the Lee Bullard judgment was obtained June 4, 1915, and was for $251.45. All of them were judgments in the circuit court of the county where the land was sold and were against Nora J. Mason and George L. Mason, who was her husband. On March 8, 1915, a year and four days after the foreclosure sale, no redemption from such sale having theretofore been made by Nora J. Mason or the Carlinville National Bank, Crabtree & Melton redeemed the land from the foreclosure sale under an execution on their judgment in the hands of. the sheriff of that county, and the premises were on April 6, Í917, sold for $1,552.17 to the Carlinville National Bank. The amount then due Crabtree & Melton under the redemption proceeding and on their execution and for costs was $1,255.08, leaving of the amount of the purchase price at that sale $297.09. Instead of paying to the sheriff $1,552.17, the whole amount of the bid at that sale, the bank paid him $1,255.08, the amount of money going to Crabtree & Melton for their claim and costs and retained the $297.09 balance, and directed the sheriff to return satisfied an execution on its-judgment which he then held but which had not been levied and on which was then due $297.09. On April 30, 1917, appellant, Lee Bullard, procured an execution on his judgment to be placed in the hands of the sheriff and tendered to the sheriff $1,282.98, being $1,255.08 plus interest to that date, he claiming the land had sold at the redemption sale for $1,255.08 only. That tender was refused and he filed a bill in chancery in the nature of a creditor’s bill in which he set up the foregoing facts and asked that the surplus for which the land sold over and above $1,255.08 be ascertained and applied to his judgment, and that' the sheriff be required to accept the sum of $1,282.98 for the purposes for which it was tendered. On May 22, 1917, one Cornwall, having obtained a judgment and procured an execution thereon, redeemed from the sale of April 6, 1917, and on June'14, 1917, the property was sold at Ms redemption sale, was bid in by Mm for Ms redemption money, judgment and costs, and a deed for it was issued by the sheriff to him. On May 22, 1917, the same day on which Cornwall redeemed from the sale under the Crabtree & Melton execution, appellant filed an amended bill in which the averment of the tender of $1,282.98 to the sheriff' to redeem from the Crabtree & Melton sale was omitted, and prayed that the surplus of the bid at that sale be ascertained and that it be decreed to be a credit payable to Nora J. Mason and that he, appellant, be decreed to have a lien on it to the extent of his judgment. The bank and the sheriff answered to part of the amended bill and demurred to the remainder. The Masons were defaulted. Appellant filed exceptions to the answer. The demurrer to the bill was sustMned and the exceptions to the answer were overruled, and the cause was heard on issues joined on such parts of the bill as demurrer was not sustained to, and such parts of the answers as exceptions to were not sustained, and a decree was entered in which the facts were found to be as above stated and the bill was dismissed at the costs of complainant.

When the bank bid at the Crabtree & Melton sale more than the amount necessary to satisfy their judgment and costs and the amount they had advanced to redeem from the foreclosure sale, that surplus, belonged to Nora J. Mason, and she was given credit for it by the bank in satisfaction of the judgment it had ag’ainst her, which application of that surplus has apparently been acquiesced in by her. As a matter of fact, that surplus never was in the hands of the sheriff, neither had he.any lien on it by virtue of any execution in his hands. What would have been the rights of the parties if that surplus had been in his hands or if he had had an execution in his hands that was a lien on the property or what rights Nora J. Mason has or has had against the sheriff is not now up for determination. Neither is it now a question what rights or benefits appellant might have secured had he tendered to the sheriff the full amount for which the property was sold at the Crabtree & Melton sale instead of only a part thereof, or, in other words, if he had redeemed from that sale. As between the bank and appellant there certainly was no priority or superiority of right in appellant to that surplus. To say the least the bank had an equal right to it and had possession of it. Even if Nora J. Mason has a right of action against the bank or the sheriff for that fund, the bank would be no more than a debtor of a fund that belonged to her, which in due course would have reached her through the sheriff, and she was the debtor of appellant. It is well settled that a debt due a debtor cannot be reached either by a bill in chancery or in a garnishment proceeding. Illinois Cent. R. Co. v. Weaver, 54 Ill. 319; Siegel, Cooper & Co. v. Schueck, 167 Ill. 522; Lay v. Myers, 181 Ill. App. 614.

The decree of the circuit court is manifestly right and is affirmed.

Decree affirmed.


text:
    Charles H. VanPelt and Thomas Sylvester, Plaintiffs in Error, v. Sylvia Lindley, Defendant in Error.
    1. Appeal and ebbob, § 1035

      —necessity of assignments of error. A contention which is covered by no assignment of error will not be considered by the Appellate Court.
    2. Appeal and ebbob, § 9*-—when writ' of error will not lie. While a writ of error will lie to review the overruling of a motion to vacate the judgment on a note, it will not lie to review the judgment itself where the cognovit filed pursuant to express authority contained in the power of attorney forming a part of the note expressly waives and releases all errors intervening in the entry of judgment and agrees that no writ of error or appeal shall be prosecuted to reverse the judgment entered thereon.
    Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Livingston & Whitmore, for plaintiffs in error.
    L. D. Zilm and Sullivan & Rust, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

A judgment by confession based on a promissory note signed by plaintiffs in error and made payable to “Ourselves” was entered by the clerk of the circuit court of McLean county in vacation against plaintiffs in error and in favor of defendant in error for $2,793.65, including $250 attorney’s fees. The cognovit confessed an indebtedness to the amount of $2,793.75, or ten cents more than the judgment was entered for, and contained the usual release of all errors that intervene in the entry of judgment and agreement that no writ of error or appeal shall be prosecuted to reverse the judgment entered thereon. The power of attorney pursuant to which judgment was confessed expressly authorized such waiver and release of errors. No motion was made in-the circuit court to set aside the judgment or for leave to plead and no meritorious defense is suggested. By the writ of error sued out by plaintiffs in error, they seek to challenge the authority of the clerk to enter the judgment, the sufficiency of the power of attorney to authorize the entry of any judgment in favor of defendant in error, and the validity of the judgment because it was not as large by ten cents as the cognovit acknowledged was due. As to the last-named contention, there is no assignment of error under which it can be considered. As to the errors covered by proper assignments, it is sufficient to say they were all expressly waived in the cognovit which was filed pursuant to express authority contained in the power of attorney which was part of the note sued on. “A writ of error will lie to review the overruling of a motion to vacate the judgment, but will not lie to review the judgment itself when errors are waived and released in the manner above stated.” Boyles v. Chytraus, 175 Ill. 370-375 and cases there cited. The' judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Prairie State Grain and Elevator Company, Appellee, v. Alvin W. Wrede, Appellant.
    1. Bbokebs, § 8

      —when evidence establishes relation as broher. In an action to recover damages for breach of a contract for the sale of grain, evidence held sufficient to support a finding that the person who negotiated the purchase was acting as plaintiff’s broker and that defendant knew that he was so acting and sold to him as such and not on his own account.
    2. Fbattos, Statute of, § 77*—sufficiency of signature to sale of personalty. The requirements of the Statute of Frauds are satisfied by affixing to 'the memorandum for the sale of personalty a printed signature adopted and used by the person affixing it as his signature for many years.
    3. Signatubes, § 2*—when printed signature is effective. A printed signature adopted and used by a person as his signature is as much his signature as if it had been personally written by him with pen and ink.
    4. Bbokebs, § 7*—when employment of broher is question of fact. In an action to recover damages for breach of a contract for the sale of grain, where defendant claims that the sale was made to the person negotiating it on his own behalf and claims that such person was acting as plaintiff’s broker in the transaction, and the evidence is conflicting, the question of agency is for the jury.
    5. Bbokebs, § 15*—what constitutes ratification of sale. Where one negotiating the purchase of goods sends to the seller a memorandum signed by him reciting the sale of such goods to a third person with the terms of the sale, which the seller never repudiates, though requested to do so if the memorandum is correct, the seller thereby ratifies the act of the negotiator and is bound by the recitals in the memorandum.
    6. Appeal and ebbob, § 893*—necessity of index to abstract. A judgment should be affirmed where the abstract has no index as is required by the rules of the Appellate Court and contains no reference to any assignments of error.
    Appeal from the Circuit Court of Ford county; the Hon. M. Habéis, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.

      Schneider & Schneider, for appellant.
    M. H. Scott and Cloud & Thompson, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellee, a corporation of Chicago engaged in the buying of grain from grain dealers and reselling it in eastern and southern markets, obtained, a judgment agáinst appellant, a grain dealer at Piper City, Illinois, in the circuit court of Ford county, for $1,140, on the claim that appellant had sold to appellee 2,000 bushels of com to be delivered during the year 1917 at $1.04 per bushel; that appellant failed to deliver the com as agreed, and that appellee was damaged by such failure to the amount of the judgment secured. Appellant does not deny that he sold the corn' for $1.04 per bushel but contends that it was sold to one Ben. B. Bishopp of Sheldon, Illinois, while appellee insists that Bishopp was a grain broker and was acting in that capacity in purchasing the com, that he, Bishopp, purchased it for appellee and that appellant knew that Bishopp was acting for appellee when he purchased it.

The jury were justified by the evidence in finding that Bishopp, acting as broker, purchased the com for appellee. Bishopp testified that on August 26, 1917, he mailed a card to appellant on which was contained an offer of $1.04 per bushel for No. 4 yellow com, the same to be shipped to appellee at Snyder, Indiana, during the year; that the next morning appellant called him up by telephone and told him to book 2,000 bushels of No. 4 corn for appellee; that thereupon he made out a memorandum of sale in duplicate confirming the sale from appellant to appellee and sent a copy of it to each of the parties by mail; that this memorandum was signed by Bishopp in printing and contained the request that if any error had been made in filling the blanks therein he should be notified of it; that appellant did not notify Bishopp of any mistake in the memorandum; that after the time for the delivery of the corn had expired and the com had not been delivered, Bishopp talked with appellant both face to face and over the telephone about the deal. In these conversations the sale was talked about as having been made to appellee and appellant promised to send com and money to appellee in settlement of the deal. Mr. Henry A. Bumsey, treasurer of appellee, testified that appellant, after the time for delivery of the com had been extended from time to time, told him to close the deal, that the deal was closed when the corn was worth $1.61 at Piper City; that he told appellant the deal was closed and he said “all right.” A Mr. John H. Wheeler, a broker, also testified that he was on an extension telephone while Bumsey was talking to appellant and that he heard the conversation testified to by Bumsey; that appellant then told Bumsey he would send com and oats to balance the account as soon as he could get cars. While appellant took the stand in his own behalf, his testimony did not contradict that produced by appellee in the essential particulars.

Appellant next contends that the memorandum offered in evidence made by Bishopp in duplicate and sent to each of the parties is not sufficient to take the contract out of the Statute of Frauds applying to sale's of personal property to the value of $500 or upwards, because the signature of “Ben. B. Bishopp, Grain Broker” was a printed signature and because Bishopp was not the agent of appellant.

The printed signature of Bishopp as broker was one that had been adopted and used by him for years and was as much his signature as if it had been personally placed on the memorandum with pen and ink.

Whether Bishopp was the agent of appellant in this matter was a question of fact for the jury. The evidence warranted the verdict returned which amounts to a finding that he was such agent. The fact established by the evidence, that Bishopp sent to appellant as well as to appellee a memorandum signed by him reciting a sale of 2,000 bushels of corn by appellant to appellee together with the terms of the sale, which appellant never repudiated in any way, although requested so to do if the same was incorrect, was in itself a sufficient ratification of the acts of Bishopp there recited to bind appellant. Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561.

The jury were fully and properly instructed, and the verdict is in accord with the weight of the evidence.

Aside from the merits of the questions presented, the judgment should be affirmed becaus,e the abstract has no index which is required by the rules of this court, neither does it contain any reference to any assignments of error.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    In the Matter of the Estate of Margaret Crumbaker, Deceased. Dora C. McLean, Appellant. John L. Barnes, Appellee.
    1. Wills, § 129

      —duty to probate and establish mil. It is the duty of one named as executor in a purported will to present it for probate and to use all fair and reasonable means to secure the probate thereof, and when a bill is filed to contest the validity thereof, to use like means in the nisi prius court to establish its validity and when the validity is upheld and the contestants appeal, to follow the appeal and do so at the estate’s expense.
    2. Wills, § 210*—right to appeal when will is set aside. When a purported will has been set aside by the decree of a court having jurisdiction to enter it, the executor named therein may prosecute an appeal to the higher courts to test its validity, at the risk, however, of being himself held liable if the decree invalidating the will stands.
    3. Wills, § 207*—what is effect of 'decree entered on contest. Until a decree is entered'invalidating the will, the executor named therein is clothed with the authority and burdened with the duty to represent the deceased and carry the will’s provisions into effect, but if the will is declared invalid by the decree of a court of competent jurisdiction, until such decree is reversed the situation is as if no will had been made.
    4. Wills, § 214*—liability of executor for costs on appeal. An executor who appeals unsuccessfully from the decree of a court of competent jurisdiction invalidating the will must pay the costs and expenses of such appeal and look for any reimbursement to the beneficiaries named in the will who authorized him to appeal.
    5. Wills, § 210*—what is effect of order authorising appeal from decree disallowing will. An order of the county court authorizing the executor named in a purported will to appeal from a decree of the circuit court declaring the instrument not to be the last will and testament of the deceased is a nullity.
    6. Costs, § 33*—liability of executors and administrators. The rule that it is only when an executor or administrator acts in bad faith or has been guilty of gross negligence that he can be made liable for costs has no application to a case which does not involve the handling of the estate but involves the legal existence of one as an executor and his right to represent the estate in any 'way.

      7. Wikls, § 207

      —extent of liability for interest when will is disallowed. One who, acting as executor under a purported will, deposits the funds of the estate in a private bank owned and run by him and his son is properly charged 3 per cent interest rather than 6 per cent on such funds from the date of the decree declaring the will invalid until his report was filed, it not appearing that such funds were not at all times ready to be turned over to the lawful owners or that they were intermingled with his private funds.
    8. Executors and administrators, § 559*—amount of fees allowable to representative. The amount to be allowed an executor or administrator as fees or commissions on the funds passing through his hands is largely within the discretion of the court in which the estate is being administered, within the limit of 6 per cent on personalty, having regard to what he is required to do to discharge his duties.
    9. Executors and administrators, § 561*-^when allowance of fees to executor is not excessive. An allowance not exceeding $300 for fees to an executor who collected in excess of $6,000 and made approved disbursements of about $4,000, held not excessive.
    Appeal from' the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 27, 1920.
    Stone & Dick, for appellant.
    Livingston & Whitmore, for appellee.

      See Illinois Notes íligest, 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 Graves

delivered the opinion of the court.

John L. Barnes was named as executor in the purported will of Margaret Crumbaker, deceased. The will was probated, and Barnes qualified as executor and performed the duties of that trust for more than a year, during which time he received as such executor several thousand dollars and expended substantial sums in the liquidation of claims against the estate and for legitimate expenses. A bill to contest this purported will was filed in the circuit court of McLean county returnable to the September term, of that court, 1917. Upon the trial of the issues joined on that bill, the purported will was at the November term of that court, 1917, held and decreed not to be the last will and testament of Margaret Crumbaker. Thereupon John L. Barnes, so then acting as executor of said will, procured leave from the county court of McLean county to prosecute an appeal from the decree of the circuit court to the Supreme Court and did prosecute such appeal. That court affirmed the decree of the circuit court. McLean v. Barnes, 285 Ill. 203. In due time Barnes filed in the .county court of McLean county a report of his acts and doings as executor under the purported will. To that report Dora C. McLean, the only heir at law of Margaret Crumbaker, filed three objectipns, viz.:

“1. That said report is incorrect in so far as it charges to the estate of Margaret Crumbaker the attorney’s fees and expenses of the said John L. Barnes made upon an appeal to the Supreme Court of Illinois from the order of the Circuit Court of McLean County, Illinois, setting aside said supposed will of the said Margaret Crumbaker, deceased.

“2. Said report is inaccurate in that the said executor should have charged himself with interest at the rate of six per cent upon the funds in his hands from and after December 1st, 1917, until the time of the filing of said report.

“3. That the fees charged by the supposed executor are excessive.”

The county court overruled these objections. Prom that order Dora C. McLean appealed to the circuit court of McLean county. That court overruled the first and third objections and sustained the second and ordered that the executor charge himself with 3 per cent on $2,046.45 from December 15, 1917 to the date of the entry of that order. Prom that order Dora C. McLean prosecuted her further appeal to this court and has assigned two errors: (1) The failure of the circuit court to sustain all of her objections to the report; and (2) the failure of the court to require Barnes to eharg'e himself ivith interest on the funds in his hands at 6 per cent instead of 3 per cent as provided for by the order appealed from.

The determination of the questions presented, fortunately for the court, does not require a construction of the purported will further than is necessary to determine who were the parties in interest in the case brought to contest it, and in the result of the appeal that was prosecuted to the Supreme Court by the person named as executor therein. Such an examination discloses that only Dora C. McLean and such persons as would inherit from Margaret Crumbaker at the time the youngest child of Dora C. McLean should attain the age of 21 years were named as beneficiaries. At the time of the contest of the purported will the only adult defendant was John L. Barnes, who had been named therein as executor. The appeal therefore must have been prosecuted by Barnes either in his own interest or in the interest of the heirs of Margaret Crumbaker, who would have taken the property when the youngest child should attain the age of 21 years.

It has been repeatedly held in this and other States, and is undoubtedly the law, that it is the duty of one who is named in a purported will as the executor thereof to present the same for probate and to use all fair and reasonable means to secure the probate thereof. And when the same is probated and a bill to contest the validity thereof is filed, it is the duty of such named executor to use like means in the nisi prius court where the contest is pending to establish the validity thereof, and when in that court the validity of the will is upheld and the contestants appeal, it is not only the privilege but the duty of such named eyAcutor to follow the appeal, and to do so at the expense of the estate. It is likewise well-settled law in this State, at least, that when a purported will has been set aside by the decree of a court having jurisdiction to enter such decree, the executor named therein may prosecute an appeal to the higher courts to test the validity of such decree, provided, however, if he does so, it is at the risk of being himself held liable for the costs, if the decree invalidating the will stands. The underlying principle involved in such matters is that, until a decree is entered invalidating a will, the executor named therein is, clothed with authority and burdened with the duty to represent the deceased and carry into effect the provisions of the will. On the other hand, when the mil has been invalidated by the decree of a court of competent jurisdiction, it is, until such decree is reversed, as if no will had been made. There is no will, no executor, and no one to speak or act for the deceased, or spend or pledge the money of the estate in litigation. When, therefore, a person named as executor in a purported will that has been declared not to be the will of the deceased by the decree of a court of competent jurisdiction appeals from such a decree and is unsuccessful and such decree is affirmed, he must pay the costs and expenses of such unsuccessful appeal, and he must look to the beneficiaries named in the purported will who have authorized him to make the contest for reimbursement, if he is reimbursed at all. Shaw v. Moderwell, 104 Ill. 64; Moyer v. Swygart, 125 Ill. 262; Bardell v. Brady, 172 Ill. 420; Hesterberg v. Clark, 166 Ill. 241; Godfrey v. Phillips, 209 Ill. 584; Leonard v. Burtle, 226 Ill. 422; Dowie v. Sutton, 227 Ill. 183; Shaw v. Camp, 56 Ill. App. 23; Butler v. Bocock, 160 Ill. App. 501. The order of the county court attempting to authorize Barnes to appeal from the decree of the circuit court holding the paper in question not to be the last will and testament of Margaret Crumbaker was a nullity, because, as already stated, at that time there was no will of Margaret Crumhaker, no executor, and nothing with which the county court could deal. The Supreme Court in Moyer v. Swygart, 125 Ill. 263, in discussing the effect of a decree setting-aside the will and the powers of the county court in regard to such will after it had been set aside by a decree of the circuit court, on page 277 of the opinion says: “Of course, all proceedings had under it (the will) in the county court, or elsewhere, would be without authority of law.” Appellee has cited Russell v. Hubbard, 59 Ill. 339, in support of the contention that it is only when an administrator or executor acts in had faith or has been guilty of gross négligence that he can be made liable for costs. The case is not in point. There the court was dealing with an administrator in relation to his dealings with the funds of the estate he was representing. In that case neither his legal existence as an administrator nor his right to represent the estate was in any way questioned. He also cites Bennett v. Bennett, 282 Ill. 266, to the claim that it is the duty of an executor to procure a correct disposition of the case and that therefore Barnes had a right, and that it was his duty, to appeal the case to the Supreme Court. That case is not in point. There the party was the executor of a valid will and the litigation did not challenge his existence or right to act but related to the manner in which the property belonging to the estate should be distributed by such executor under the will. Appellee also cites Pingree v. Jones, 80 Ill. 177, to the effect that an executor should not be required to pay costs in a will contest case. That case is not in point. The judgment for costs there under consideration were costs in the nisi prius court, where, as already seen an executor is in duty bound to exercise all fair and reasonable means to sustain the will. Besides that, in so far as the language there used, which is general, seems to permit the construction that costs should not be charged to one who as the executor named in a purported will attempts to establish the will in all courts, whether the will is set aside or established, has been overruled in effect in Shaw v. Moderwell, 104 Ill. 64, and all the other eases above cited to the same point, and was expressly overruled in Moyer v. Swygart, 125 Ill. 262-276. The circuit court erred in overruling the first objection above mentioned to the report of Barnes as executor.

The second objection to the report is that Barnes did not in such report charge himself with 6 per cent interest on the funds belonging to the estate in Ms hands from December 1, 1917, to the time of filing of the report. The circuit court sustained that objection in part,- and ordered Barnes to charge himself with 3 per cent on $2,046.45 from December 15, 1917, to the date of the filing of the report in question. Appellant has contented himself with merely stating the objection in his argument. The stipulation of facts shows that the funds in question were deposited by appellant in a private bank owned and run by him and his son. It nowhere appears that those funds were not at all times ready to be turned over to whomsoever they belonged on a moment’s notice, or that they ever were mixed or intermingled with the private funds of Barnes. So far as the stipulation shows, the deposit may have been a special deposit of the specie. The order entered was as favorable to appellant as the law allows. There was no error that worked to thé disadvantage of appellant in the order entered on the second objection.

The third objection to the report is that the fees charged by Barnes as executor are excessive. He had collected approximately $6,000 and had disbursed about $4,000 of it in ways that seem to have met with the approval of every one. He asked for 6 per cent on all funds received by him and the court allowed his claim amounting to $368.09. That amount will now be scaled down to about $300 or less by deducting the accrued interest on the $2,046.45 fund for the time Barnes was acting as executor, at least until he appealed from the decision in the will contest case, he was acting in good faith. The amount to be allowed to an administrator of an executor for fees or commissions on the funds that pass through his hands 'is very largely within the sound discretion of the court where the estate is being administered, within the limit of 6 per cent on personal property, having regard to what such officer has been required to do in the discharge of his duties. There is nothing in this record that will warrant us in finding that the amount allowed Barnes for fees was excessive.

The order of the circuit court is therefore reversed in so far as it relates to the first objection to the report in question, and is affirmed in all other respects, and the cause is remanded with directions to the trial court to enter an order in conformity with the views here expressed and sustaining said first objection to said report.

Affirmed in part, reversed m part cmd remanded with directions.


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    Harvey H. Atherton, Appellee, v. Frank Shelly, Appellant.
    1. Evidence, § 331

      —admissibility of parol evidence to vary receipt. A receipt is not conclusive if, in fact, it did not and was not intended to cover everything, and parol evidence is admissible to explain, vary or contradict it.
    2. Instructions, § 18*—propriety of refusing misleading instructions. Instructions which are likely to mislead or confuse the jury are properly refused.
    Appeal from the County Court of Fulton county; the Hon. Hobart S. Boyd, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    W. Scott Edwards, for appellant.
    Harvey H. Atherton, pro se.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellee, who is engaged in the practice of law, was employed to foreclose a trust deed given to one Mc-Nally to secure a debt of $60,000, for a stipulated fee of $1,000. In this litigation appellant was interested. Later appellee was employed by appellant to foreclose two other mortgages for a stipulated fee of $200 in one case known as Miller v. Shelly and $150 in the other case known as Shelly v. Robinson, if the proceedings went to final decree, but if those cases were settled before anything more was done than filing the bills, then it was stipulated that the fee in the Miller case should be $75 and the fee in the Robinson case should be $50. The case of Shelly v. Robinson went to final decree. While the other cases were pending, an adjustment of the whole matter was made, as a part of which appellant agreed to pay- all costs and attorneys’ fees in all of the cases. Later, after appellant and appellee had had one or more conversations about the amount of fees appellee was to receive, appellant gave to appellee his note for $950, and appellee gave to appellant a receipt in full. At the time when the note and receipt were given, appellant told appellee that there was a firm of Peoria attorneys who were claiming that he should pay them $50 for fees for filing an answer for some defendant in one of the foreclosure cases, and appellee told appellant that he was under no obligation to pay those attorneys anything. So far the facts are beyond dispute. Appellee further testified that when the talk about the claim of the Peoria attorneys was had he told appellant that he could keep out of the amount due him, appellee, $50, the amount claimed by the Peoria attorneys until it was finally determined whether appellant would have their claim to pay, on the condition that if he did not have it to pay he should pay that amount to appellee. In other words, that appellee and appellant would settle their differences for $950 on the condition that appellant was compelled to pay the Peoria attorneys $50, but if he was not compelled to pay that claim then he should pay that amount to appellee, making the total amount to be received by him $1,000. Appellant admits having had the conversation with appellee about the claim of the Peoria attorneys for $50 and that appellee told him he was not obliged to pay that claim and further told him what to write to the Peoria attorneys about the claim, but denies that he promised under any circumstances to pay appellant $50 in addition to the $950 represented by the promissory note. Appellant has never paid the Peoria attorneys the $50 claimed, neither has he paid appellee anything except the $950 note. This suit was brought to recover the $50 which appellee claims was deducted from his claim of $1?000 for fees on the condition that appellant was compelled to pay that amount to the Peoria attorneys. There is no doubt that $1,000 was the amount of appellee’s fees which appellant originally agreed to pay. The entire controversy in this case is over what the agreement, if any, was when the note for $950 and the receipt in full were given. Appellee so testified when on the witness stand and appellant through his attorney so stated in open court. We quote from the record: “Mr. E. Move to strike that evidence as incompetent, irrelevant and immaterial, because we stipulate and state that we made a contract by which we agreed to pay $1000.00. * * * We say that the $1000 is what we agreed to pay him, and why go into anything else?' Now we admit that we gave hrm a contract for $1000.00 and agreed to pay him $1000.00. Mr. Atherton says we kept back $50.00 when we settled on account of another matter. Let’s confine this evidence to that other matter. ’ ’

The jury found the issue for appellee and assessed his damages at $50 and judgment was entered on the verdict. There is no assignment of error challenging the sufficiency of the evidence to support the verdict.

Appellant complains because the court in the admission of evidence and in the instructions to the jury held it competent for appellee to contradict and explain a written receipt. A receipt is not conclusive if, in fact, it did not and was not intended to cover everything. Parol evidence is admissible to explain, vary or contradict a receipt. Ostrander v. Scott, 161 Ill. 339; Ditch v. Vollhardt, 82 Ill. 134; Switzer’s Estate v. Gertenbach, 122 Ill. App. 26; Campbell v. Heuer, 139 Ill. App. 631; White Walnut Coal Co. v. Crescent Coal & Mining Co., 162 Ill. App. 353; Rose v. Stoddard, 181 Ill. App. 405.

Appellant lastly complains that the court refused two instructions presented by him. Neither of these instructions is correctly abstracted. As they appear in the record they are likely to be misunderstood and likely to mislead or confuse the jury and were properly refused. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    C. A. Hendricks, Defendant in Error, v. Sam Gamble et al., Plaintiffs in Error.
    1. Appeal and ebbob, § 1321

      —presumption of correct ruling refusing proposition of law. Where the ruling of the trial court in refusing, as presented too late, a proposition of law tendered it after final judgment has been entered and an appeal prayed is in no way challenged, no exception is preserved thereto, and its correctness is not questioned in the argument of plaintiffs in error, it will be presumed by the Appellate Court that such ruling was correct and that the proposition was not offered within the time required.
    2. Total, § 295*—time for submission of propositions of law. Rev. St. ch. 110, sec. 61 (J. & A. If 8598), requires that propositions of law be presented to the court before final judgment and before the final determination of the issues being litigated.
    9. Total, § 295*—what is effect of failure to present proposition of law in time. Unless propositions of law are presented in time to the court to be passed upon by it in cases where trial by jury exists and has been waived, the record preserves no question of law for review. •
    4, Statutes, § 149*—what is effect of repealing clause in invalid statute. When by an act of the legislature it is attempted to provide a substitute for and to repeal an existing act and such new act is held unconstitutional and invalid, the repealing clause is invalid.
    5. Statutes, § 185*—purpose of repeal of statute relative to eighth-grade pupils. The purpose of the legislature in attempting to repeal the act of June 26, 1913, relative to high-school privileges of graduates of the eighth grade, was to substitute therefor the Act of July 1, 1915 [Call. 1916 Stat. j[ 10143(1) et seq.], and to prevent the existence at one time of conflicting laws as to the high-school privileges of such scholars, not to leave the subject untouched by a legislation.
    6. Statutes, § 31

      —effect of invalidity of statute. A decision of the Supreme Court declaring an entire act void includes the section therein attempting to repeal all laws in conflict with the act.
    7. Statutes, § 149*—when invalidity of repealing aet operates to keep in force prior act. Where an act which attempts to repeal a prior act on the same subject is declared void as a whole, the prior act stands in full force.
    8. Schools and school districts, § 145*—liability for costs. Semble, that no authority exists for subjecting school funds to the payment of costs.
    9. Schools and school districts, § 145*—when school funds are not subjected to costs. Where a mandamus proceeding is brought against certain persons who are school directors to compel them to perform their official duty and there is a judgment for costs against them as individuals, such judgment is not objectionable as subjecting the school funds to the payment of costs.
    Error to the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    W. E. Williams and A. Clay Williams, for plaintiffs in error.
    C. E. Berter and Hubbard & Groves, 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 Graves

delivered the opinion of the court.

A mandamus proceeding was begun by the filing of a petition by defendant in error in the circuit court of Adams county against the respondents, who are the school directors of school district No. 236 in Adams county, Illinois, to compel them to act on the request of defendant in error to approve his selection of the Barry High School as the high school to be attended by certain of his children and on his request to them that they pay tuition of such children for their attendance at such high school under the provisions of the act of the legislature of the state of Illinois approved June 26,1913, entitled “An act to provide high school privileges for graduates of the eighth grade. Plaintiffs in error, as respondents, demurred to the petition and among other things set up that the act approved June 26, 1913, on which the petitioner based his rights, had been repealed by an act of the legislature of the State of Illinois approved July 1, 1915, and was no longer in force. Although the abstract does not show it, this demurrer was heard and sustained, and defendant in error obtained leave to file and did file an amended petition to which the respondents filed their answer, denying substantially all, if not all, of the necessary averments of the petition. Replication to the answer was filed, a jury was waived and the cause was heard by the court. The court found the issues in favor of the petitioner and against the defendants, gave judgment in favor of the petitioner and against the defendants for costs of suit, and ordered that petitioner have execution therefor. After the final order and judgment had been entered and after an appeal had been prayed, a proposition of law asking the court to hold that the act approved June 26, 1913, was repealed by the act approved July 1, 1915, was presented to the trial court and was refused for the assigned reason that it had been presented too late. That ruling is in no way challenged, no exception to it is preserved and nothing is said about the correctness of it in the argument of plaintiffs in error. We must therefore presume it was correct and that the refused proposition was not handed to the court within the time required. Two errors only are assigned on this record:

First. The court erred in holding that the law of 1913 was not repealed by the law of 1915 and was still in force. •

Second. The court erred in rendering judgment for costs and awarding execution.

Counsel for plaintiffs in error in the opening paragraph of their argument said: “This case presents a single point: Was the act of 1913 to provide high school privileges for graduates of the eighth grade repealed hy the act of 1915, which in so far as it relates to the subject-matter of the act of 1913 was held unconstitutional and void. The foregoing language is quoted by counsel for defendant in error in the closing paragraph of their argument, where they concede the statement to be correct.

Section 61, ch. 110, Rev. St. (J. & A. ¶ 8598), provides the means by which questions of law may be preserved for review in cases where, as in this case, the right to trial by a jury exists and has been waived and the trial by the court is had. That section requires the presentation of propositions of law within such time as the court may require, the same to be marked “held” or “refused” by the court. That section has been construed by the Supreme and Appellate Courts to require the presentation of such propositions before final judgment and before a final determination of the issues being litigated. Mann v. Learned, 195 Ill. 502; Starr Piano Co. v. Lawrence, 190 Ill. App. 351; Lewis v. Drainage Com’rs, 188 Ill. App. 49; Columbia Ins. Co. v. Loeb’s Ins. Agency, 187 Ill. App. 289; Rosenfield v. Pomerantz, 182 Ill. App. 341. The proposition of law in this ease was not presented until after the final determination of the issues involved. Unless propositions of law are presented in time to the trial court to be passed upon by it in cases where trial by jury exists and has been waived, the record preserves no questions of law for review. Lovekamp v. Cummings, 184 Ill. App. 297; Lanski v. Chicago & N. W. Ry. Co., 181 Ill. App. 565; Goggin v. Western U. Tel. Co., 182 Ill. App. 387; Smith v. Amer ican Corset Co., 187 Ill. App. 1, and numerous other eases' to the same effect.

Even if the question presented by the proposition which the trial court refused to consider in this case because the same was not presented in time had been presented in due time and had been marked “refused, ’ ’ the ruling would have been right.' The rule is that when by an act of the legislature it is attempted to provide a substitute for and to repeal an existing act and such new act is held unconstitutional and invalid, the repealing clause is invalid. State ex rel. Pogue v. Groom, 91 Ohio St. 1; State v. Thomas, 138 Mo. 95, and numerous cases there cited.

From an examination of the two acts referred to, it is manifest that the only purpose the legislature had in undertaking to repeal the act of 1913 was to substitute therefor the provisions of the act of 1915. There is nothing from' which any inference can be drawn that it was the intention of the legislature to repeal the act of 1913 and leave nothing in its place. It was plainly the purpose of the legislature in passing this repealing clause in the act of 1915 to prevent the existence at one time of two conflicting laws on the subject of providing high-school privileges for scholars who had secured an eighth-grade education. The Supreme Court in the case of Board of Education v. Haworth, 274 Ill. 538, held the entire act of 1915 to be void. That includes the section of the act attempting to repeal" all laws in conflict with it. ' The entire act of 1915 being void as declared in the Haworth case, the act of 1913 stands in all respects in full force.

Plaintiffs in error contend that no authority exists for subjecting the school funds to the payment of costs. The point is well taken, but the judgment here, does not attempt to make the school district liable for costs. It is a mandamus proceeding against certain persons who were school directors to compel them to perform their official duty, and the judgment for costs was against them as individuals. There is nothing in the judgment for costs that attempts to require or that would excuse the payment of the costs out of the school funds.

No sufficient grounds for the reversal of the judgment has been pointéd out. The judgment is therefore affirmed.

Judgment affirmed.