text:
    Mrs. Joseph H. Lawler, Plaintiff in Error, v. Robert McNamara, Defendant in Error.
    Gen. No. 22,612.
    Landlord and tenant, § 264

      —what constitutes constructive eviction. Failure of a lessor to furnish heat in an apartment in accordance with the terms of the lease amounts to a constructive eviction, which justifies the lessee in abandoning the premises.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Joseph H. Lawler, for plaintiff in error.
    William F. Propper, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is a snit in which the plaintiff is attempting to recover rent of an apartment leased by her under a written instrument to the defendant. The defense is failure of the lessor to comply with her contract to heat the apartment. Upon trial by a jury, verdict was returned favorable to the defendant. Upon this, judgment was entered which plaintiff seeks to have reversed.

The evidence shows that on September 4, 1915, the parties entered into a written lease whereby plaintiff leased to defendant a certain apartment of five rooms in an apartment building in Chicago, to be occupied by the lessee as his residence for a term fixed at two years from October 1,1915, at a rental of forty dollars per month payable in advance on the first day of each month. The lease required the lessor among other things to furnish heat ‘£ at all reasonable hours during each day and evening, from October 1 to May 1 of each winter term.” The defendant moved into the premises and occupied the same from about the 1st day of October, 1915, until late in January, 1916, paying the rent for this period.

From the evidence the jury could properly find that during the months of December, 1915, and January, 1916, the lessor failed to furnish sufficient heat to keep the apartment habitable; often a temperature of between 40 and 50 degrees was maintained. Numerous complaints were made to the lessor’s agent but the conditions were not remedied. As a consequence the tenant vacated the apartment late in January, 1916. Plaintiff brought this suit to recover rent for the months of February and March.

It is now the well-settled law that failure of a landlord to furnish heat in an apartment in accordance with the terms of the lease amounts to a constructive eviction, which justifies the tenant in abandoning the premises. Among the many cases so holding are Harmony Co. v. Rauch, 64 Ill. App. 386; Filkins v. Steele, 124 Iowa 742; Minneapolis Co-operative Co. v. Williamson, 51 Minn. 53; Tallman v. Murphy, 120 N. Y. 345. We approve and adopt the expression of the court in the opinion in Barnard Realty Co. v. Bonwit, 155 N. Y. App. Div. 182, 139 N. Y. Supp. 1050:

“Very large numbers of people live in tenement houses, apartment houses and apartment hotels * * *. Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires elasticity in the application of the principles thereof. An intolerable condition, which the tenant neither causes nor can remedy, seems to me warrants the application of the doctrine of constructive eviction.”

Errors in rulings on evidence and instructions to the jury, if any, are not of sufficient importance to require a reversal. The uncontradicted evidence in the record is sufficient to support the verdict and judgment. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice MgSurely

license: Public Domain

text:
    William H. Giesecke, Appellee, v. Edward F. Cullerton and The Bankers Surety Company, Appellants.
    Gen. No. 22,627.
    Damages, § 83

      —when provision in bond is for liquidated damages and not penalty. Where a lessee covenanted in the lease, in addition to his covenant to pay rent, that he would expend a certain sum within a certain time in remodeling and improving the leased premises, and executed a bond stated to be “in the penal sum” of the amount named in the lease to be so expended for the performance of such covenant, held, in an action on the bond, that the words “penal sum” used therein had no determinative effect, and the amount named in the bond was liquidated damages and not a penalty, distinguishing the case of Westfall v. Albert, 212 Ill. 68.
    Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Gustav E. Beerly, for appellants.
    Castle, Williams, Long & Castle, for appellee.

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

   Mr. Presiding Justice MgSurely

delivered the opinion of the court.

Defendant Cullerton, as lessee, entered into a lease for ninety-nine years, with plaintiff as lessor, wherein the lessee agreedr’to expend at least $5,000 in remodeling and improving the building on the leased premises. To secure the performance of this covenant a bond for $5,000 was given, executed by Cullerton as principal and the defendant Bankers Surety Company as surety. Plaintiff brought suit on the bond alleging a breach of this covenant, and upon trial by the court had judgment for $5,000, the full amount of the bond. Defendants, appealing, seek a reversal.

The covenant of Cullerton referred to is as follows:

“Fourth. As a further consideration for the leasing and demising aforesaid, said lessee further covenants and agrees to remodel and improve the said building-now upon the said demised premises within six months from and after the date of this lease, and to expend in good faith for materials used and labor furnished in and about remodeling and improving said building the sum of at least five thousand ($5,000) dollars.

“And the lesse'e further agrees to furnish the said lessor upon the execution of this lease a bond in the sum of five thousand" ($5,000) dollars, issued by a surety company satisfactory to said lessor, said bond to be conditioned upon the faithful performance by said lessee, of his.said covenant last above made.”

The bond recites that the defendants are bound “in the penal sum of five thousand ($5,000) dollars,” and contains the following:

“Whereas, it was also stipulated and agreed by the said Edward F. Cullerton, as lessee, in the said lease, that he, the said Edward F. Cullerton, as such lessee, should and he would within the period of six (6) months from the said 1st day of July, A. D. 1910, make or cause to be made upon the hereinbefore described premises, improvements to the value of five thousand ($5,000) dollars;

“Now, if the said Edward F. Cullerton, as lessee, shall within the period of six months beginning the first day of July, A. D. 1910, and ending on the 2nd day of December, A. D. 1910, go ahead in keeping with the terms of the said lease and make or cause to be made upon the premises hereinbefore described improvements to the value of five thousand ($5,000) dollars, then this obligation to be void; but otherwise it shall remain in full force and effect.”

The evidence shows that Cullerton went into possession of the premises, paid the first quarterly rent, and did some preparatory work towards remodeling the building, but at the end of six months abandoned the premises, leaving them very much dismantled. The lease was afterwards forfeited for failure of the lessee to pay rent.

That there was a breach by defendant is not seriously in dispute, and upon the evidence the trial court was justified in so concluding, as well as that there was an ensuing liability of the defendants under the bond.

Shall the amount named in the bond be held to be a penalty only or liquidated damages? The trial court held it to be liquidated damages, and we are in accord with this decision. The words of the bond designating the obligation as a “penal sum” have no absolutely determinative effect. The rule is correctly stated in Sutherland on Damages (4th Ed.), vol. 1, page 864:

“It is apparent from this consideration of the cases that in determining whether the sum named in a contract is to be taken as a penalty or liquidated damages courts are influenced largely by the reasonableness of the transaction, and are not restrained by the form of the agreement, nor by the terms used by the parties, nor even by their manifest intent. Where the sum named has been expressly designated as stipulated damages it has been held to be a penalty; and, conversely, where the sum has been denominated a penalty, it has been declared to be stipulated damages.”

The same author also correctly says, after considering a large number of cases, that “the decision of this question is often intrinsically difficult, for judicial opinions, in the numerous cases on the subject, are very inharmonious; they furnish no universal test or guide”; and quotes with approval from the opinion Jaquith v. Hudson, 5 Mich. 123, as follows: ‘‘While no one can fail to discover a very great amount of apparent conflict, still it will bé, found, on examination, that most of the cases, however'conflicting in appearance, have yet been decided according to the justice and equity of the particular case.” Both of these statements are in harmony with the well-considered and persuasive brief, of counsel for the defendants. As good a statement as any of the general principle-appears in the decision in Sun Prtg. & Pub. Ass’n v. Moore, 183 U. S. 642, where the court said:

“The decisions of this court on the doctrine of .liquidated damages and penalties lend no support to the contention that parties may not, bona fide, in a case where the damages are of an uncertain nature, estimate and agree upon the measure of damages which may be sustained from the breach of an agreement. On the contrary, this court has consistently maintained the principle tha-t the intention of the parties is to be arrived at by a proper construction of the agreement made between them, and that whether a particular stipulation to pay a sum of money is to be treated as a penalty, or as an agreed ascertainment of damages, is to be determined by the contract, fairly construed, it being the duty of the court always, where the damages are uncertain and have been liquidated by an agreement, to enforce the.contract.”

The lease before us provides as a consideration of the leasing to defendant, not only the payment by him of a stipulated sum of money as rent, but the expenditure upon the premises of the sum of $5,000. The lessor was entitled to this added value to his premises .as part of the consideration for the leasing, and we can see no reason why the parties might not agree that the amount of damages in the event of a breach should be the full amount of $5,000. Judgments for the entire amount of rent reserved in leases have been sustained under a covenant that this should be considered as the damages upon breach of the lessee to pay any instalment of rent. Central Investment Co. v. Melick, 267 Ill. 564; Grommes v. St. Paul Trust Co., 147 Ill. 634. By analogous reasoning this judgment could properly be sustained.

This view of the matter would render ineffectual any argument based upon an alleged part performance by. the lessee, although in the instant case the court could properly be of the opinion that the expenditure in dismantling the premises should not properly be considered as part performance for the reason that this left the premises in a worse condition than they were before.

We are not persuaded of the unsoundness of the reasoning of the late Mr. Justice Adams which appears in his opinion in McCullough v. Moore, 111 Ill. App. 545, in accord with which this judgment could be affirmed on the theory that the undertaking to remodel and improve the premises was for the purpose of furnishing the lessor with security for the rent and the other obligations of the lessee. The failure of this security would reasonably result in damages uncertain and difficult of determination. This is especially apparent in the case before us, where the premises were abandoned by the lessee and left in a chaotic condition and the lease forfeited for failure of the rent. We do not understand Westfall v. Albert, 212 Ill. 68, to be in opposition. In this latter case a controlling factor, as stated by the court, was that the damages were capable of easy ascertainment.

In our opinion the trial court was right in treating the sum mentioned in the bond as liquidated damages, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Abe Shapiro and Jake La Bow, Plaintiffs in Error.
    Gen. No. 22,631.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 868—how abstract will be construed. An abstract is the pleading of the parties in the Appellate Court, and must he construed against the appellant.
    2. Appeal and error, § 892

      —what is effect of failure to file proper abstract. Where the abstract fails to show any judgment was entered by the trial court, there is nothing to review and a writ of error must be dismissed.
    Error to the Criminal Court of Cook county; the Hon. Charles M.' Thompson, Judge, presiding. Heard in this court at the October term, 1916.
    Writ of error dismissed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Abe Shapiro and Jake La Bow, defendants, charged with conspiracy. After a trial and verdict of guilty, defendants bring error.
    McEwen, Weissenbach & Shrimski and Michael E. Maher, for plaintiffs in error.
    Maclay Hoyne, for defendant in error; Alexander E. Arkin, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anna Pico, by Nicalo Accomondo, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 22,640.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 892

      —what is effect of failure to file proper abstract. An abstract is the pleading of the parties, and where it fails to show the nature of the verdict or what the judgment was, affirmance is warranted, but held that from the nature of the case consideration would be given to the merits involved.
    2. Street railroads, § 69

      —when motorman running over child is not guilty of negligence. Where a child five years old who was standing on a street curb at a crossing suddenly ran from the curb on the approach of a street car when the car was a short distance away, and stumbled and fell alongside the car with one hand on a rail in front of the car, and the motorman, as soon as he saw the child leave the curb, struck his gong and applied the brake but was unable to stop the car, and the child’s hand was injured, held that the motorman was not chargeable with negligence.

      Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Rehearing denied February 5, 1917.
    Statement of the Case.
    Action by Anna Pico, a minor, by Nícalo Accomondo, her next friend, plaintiff, against Chicago Railways Company, defendant, to recover damages for personal injuries. From a judgment and verdict presumably for the defendant, plaintiff brings error.
    Rankin, Howard & Donnelly, for plaintiff in error.
    Joseph D. Ryan and Frank L. Kriete, for defendant in error; W. W. Gurley and J. R. Guilliams, of counsel.

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

      See Illinois Notes Digest, Vola. XI t'p XV, and Cumulative Quarterly, sanie topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Appeal and error, § 1303-^-to7¡,ero presumed that evidence disclosed by photograph not, incorporated in bill of exceptions was sufficient to satisfy jury. Where a photograph was introduced in evidence and considered by the jury hut was not incorporated in the bill of exceptions, the evidence is assumed to have been sufficient to satisfy the jury as to the matters shown thereby.

4. Trial, § 54 —when denial of motion to withdraw juror and continue case because of alleged improper conduct of juror is not error. Where a juror was accused of improper conduct but denied same under oath unequivocally and the court, after considering affidavits by the parties- concerned, denied a motion to withdraw a juror and continue the case, held that there was no error in such denial.


text:
    Mary R. Beamesderfer, Defendant in Error, v. Anton J. Cermak, Bailiff, Plaintiff in Error.
    Gen. No. 22,648.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Action by Mary E. Beamesderfer, plaintiff, against Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendant, to replevy certain personal property. From a judgment for the plaintiff on default, defendant brings error.
    The replevin writ was made returnable to the April term beginning April 12,1915. The defendant entered appearance March 30, 1915. Plaintiff’s declaration was filed May 13,1915. The May term began May 10, 1915. Defendant did not plead. The case was called for trial February 28,1916, and, defendant not appearing, he was defaulted and judgment entered.
    Abstract of the Decision.
    1. Dismissal, nonsuit and discontinuance, § 37

      —when non-suit proper. Under section 32 of the Practice Act (J. & A. U 8569), where a declaration is not filed ten days before the term of court next after the term to which a summons is made returnable, the defendant is entitled to a judgment as in case of nonsuit.
    2. Tbial, § 7

      —when case may he called for trial. It is error to call a case for trial before it is at issue.
    G-urdon Williams and M. J. 0 ’Donoghue, for plaintiff in error.
    J. Marion Miller, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. James Y. Thompson, Plaintiff in Error.
    Gen. No. 22,610.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Indictment and information, § 62

      —When amendment of information is proper. An information stands on different grounds, as to amendment, from an indictment, and may be amended to any extent which the judge admits to be consistent with the ordinary conduct of judicial business, with the public interest and with private rights.

      Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against James Y. Thompson, defendant, charging that he did unlawfully, wrongfully and unjustly, for his own gain and to prevent the owner again possessing his property, buy, receive and aid in concealing fourteen bags of Lehigh cement to the value of $7.13, the property of Gfustaf A. Johnson, knowing that the cement had been stolen. From a finding by the trial judge, a jury being waived, that defendant was guilty and sentence of a fine of $300 and $6 costs, defendant to stand committed until fine and costs were paid, defendant brings error.
    Egbert F. Munsell, for plaintiff in error; L. J. Haigler, of counsel.
    Maclay Hoyne, for defendant in error; Irwin N. Walker, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Indictment and ineobmation, § 62 —when allowance of amendment to information is proper. Where an information was amended by striking out the name of one party as defendant, whose name had been inserted by a clerical error on the part of the person who transcribed the information, and inserting the name of another and the proper party, held that there was no error in allowing such amendment.

3. Receiving stolen goods, § 11 —when jury must malee finding as to value of property. In a prosecution by information, charging the defendant with unlawfully concealing or aiding to conceal the property of another of a certain value, knowing same to be stolen property, it is indispensable to a judgment that there be a finding as to the value of the property, as same is required under the statute in fixing the punishment.


text:
    Edward Meisel, Defendant in Error, v. William Kalms, Plaintiff in Error.
    Gen. No. 22,617.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney. Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Action by Edward Meisel, plaintiff, against William Kalms, defendant, based upon an architect’s certificate for $350 for balance due under a building contract between plaintiff, contractor and defendant, owner of the building upon which the work under the contract was done. From a judgment, upon trial before the court, for the plaintiff for the amount of the certificate, defendant brings error.

      Abstract of the Decision.
    Building and construction contracts, § 40

      —when owner mail not retain money under contract to pay liens. Where a building contract provided that the owner might retain out of any money due the contractor an amount sufficient to indemnify him against any lien or claim chargeable to the contractor for which, if established, the owner might be liable, and there was a subcontractor’s lien filed but no" suit was brought thereon, held in an action by the contractor against the owner for the balance due under the contract brought more than four months after the time final payment was due the subcontractor, and wifhin which period a petition to enforce such lien should have been filed, that the subcontractor’s lien filed constituted no defense to such action.
    Samuels & Samuels, for plaintiff in error.
    Emil A. Meyer, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Arthur Meyers, Plaintiff in Error.
    Gen. No. 22,625.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Ruzus P. Robinson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Arthur Meyers, defendant, for violation by defendant of Rev. St. ch. 38, sec. 57al [Cal. Ill. St. Supp. 1916, ¶3591(1)], providing for a penalty for being an inmate of a house of prostitution. From a judgment of conviction, upon trial by the court, and sentence of six months, defendant brings error.
    Abstract of the Decision.
    1. Disorderly house, § 6

      -—when evidence sufficient to sustain conviction for being immate of house of prostitution. Evidence held sufficient to sustain a finding, beyond all reasonable doubt, of defendant’s guilt as charged in an information, under Rev. St. ch. 38, sec. 57al [Cal. Ill. St. Supp. 1916, if 3591 (1)], providing for a penalty for being an immate of a house of prostitution.
    2. Criminal law, § 150

      —when particeps criminis is competent. A particeps criminis is a competent witness under an information for violation of Rev. St. ch. 38, sec. 57al [Cal. Ill. St.' Supp. 1916, ][ 3591(1)], providing for a penalty for being an inmate of a house of prostitution.
    Arthur H. Simms, for plaintiff in error.
    Maclay Hoyne, for defendant in, error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Jacob Meyer, Complainant, and Angelo Paolella et al., Defendants, Defendants in Error, v. I. Lurya Lumber Company et al., Interveners, Plaintiffs in Error.
    Gen. No. 22,629.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Fkedekick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Bill by Jacob Meyer, complainant, against Angelo Paolella and others, defendants, I. Lurya Lumber Company and others, interveners, involving questions affecting mechanics’ liens. From the denial of a motion by the interveners to set aside an order dismissing the suit at complainant’s cost for want of prosecution, the interveners bring error.
    The cause was referred July 1, 1913, to a master in chancery, who was later appointed a special commissioner. September 24, 1915, the court ordered the special commissioner' to file his report by October 6, 1915, and set the cause for hearing on that date. October 13, 1915, the suit was dismissed, and on February 14, 1916, the interveners filed motion to set aside the order of dismissal.
    Samuel W. Newman, for plaintiffs in error.
    John S. Reynolds and I. B. Perlman, for defendants in error.

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

   Mr. Justice Holdom

delivered the opinion of .the court.

Abstract of the Decision.

1. Appeal and error, § 1268 —when presumed that proceedings in suit in equity were regular. No certificate of evidence being filed, held that the regularity of all proceedings, the giving of proper notices, and that the parties were in court when an order was entered requiring a special commissioner to file his report and when a cause was set for hearing, will be presumed in a suit in equity.

2. Equity, § 341 —when chancery suit may be dismissed for want of prosecution while still before special commissioner. Where, in a suit in chancery, an order was entered requiring a- special commissioner to file his report by a certain date, held that it devolved upon the parties to close their proof within the time limited by the order, or so much earlier as to enable the commissioner to comply with the order to file his report, and upon the parties’ failure so to close their proof and of the commissioner to file his report, that the cause might properly be dismissed for want of prosecution.

3. Equity, § 362 —when court may not vacate order of dismissal of suit. A court has no jurisdiction to entertain a motion to vacate an order of dismissal of a suit after the lapse of the term at which such order was entered.

4. Appeal and error, § 274 —what is a final order. An order dismissing a bill for want of prosecution is a. final order.

5. Equity, § 341 —when chancery suit properly dismissed for want of prosecution. When proper notices are given and the parties are in court at the time an order is entered upon a special commissioner in a chancery suit to file his report, and the cause is set for hearing, the court, if the parties do not appear at the time the case is called for trial, may dismiss it for want of prosecution.


text:
    Emelie Mundstock, Appellee, v. Herman Mundstock, Appellant.
    Gen. No. 22,647.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed January 22, 1917.
    Statement of the Case.
    Bill for divorce by Emelie Mundstock, complainant, against Herman Mundstock, defendant, charging adultery. From a decree in favor of complainant and awarding alimony, defendant appeals.
    There was introduced in evidence a postnuptial contract between complainant and defendant which recited that differences had arisen between them in relation to the ownership of certain property, one piece being held in joint tenancy and the other in the name of complainant alone, and, both being desirous of settling such' differences, the pieces of property were conveyed to complainant, she paying defendant $2,500 in money and assuming an incumbrance thereon of $1,400, evidenced by the notes of both parties, which complainant agreed to pay and to hold defendant indemnified from any liability therefor. As a further consideration of the contract, conveyance, the payment of the $2,500, and the assumption of the $1,400 of indebtedness, each released all claim in or to the real or personal property of the other then owned or after-wards to be acquired by either, and also agreed that the survivor waived and released all claims of dower, homestead rights, widow’s award, or other' rights or interest in and to the property of which the one first dying should be seized at the time of his or her death.

      Abstract of the Decision.'
    1. Divorce, § 14

      —when evidence sufficient to- show adultery. Evidence held sufficient to establish defendant’s adultery, in an action for divorce on that ground.
    2. Divorce, § 105

      —when postnuptial agreement is not bar to allowance of alimony in suit for divorce. A postnuptial contract between husband and wife made when in settlement of differences between them as to the ownership of property owned by them jointly and for the purpose of settling such differences, held no bar to the wife’s right to alimony under a suit for divorce brought by her subsequent to such contract, and not anticipated by or in the contemplation of the parties at the time they entered into the contract.
    3. Divorce—when duty rests on chancellor to award alimony and solicitor’s fees. It is the duty of the chancellor, under Rev. St. ch. 40, sec. 18 (J. & A. If 4233), on granting a wife a decree of divorce for the fault of her husband, to award alimony as well as solicitor’s fees in favor of complainant.
    4. Divorce, § 102

      —when amount of alimony and solicitor’s fees is reasonable. The amount of alimony and solicitor’s fees awarded by the decree, held to be reasonable and just when measured by the financial ability of defendant to pay and the necessity of complainant for financial aid in her support, and conformable to well-settled practice.
    Charles Werno, for appellant.
    Rathje & Wesemann, for appellee; W. Arnold Am-berg, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    A. L. St. George, Appellant, v. James A. Printy, Appellee.
    Gen. No. 22,530.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 41

      —when husband is competent witness in action by wife. The husband of a party to an action is a competent witness for the wife in such action where the separate property of the wife is involved or where he acted as her agent.
    2. Husband and wife, § 135

      —when evidence sufficient to show agency of husband for wife. In an action by a wife against a third person to recover damages for the fraudulent sale of a violin to plaintiff, evidence held sufficient to sustain a finding that the husband acted as agent for the wife in making the purchase although she was present at the time of the sale and took some part in the conversation relating to such sale.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Action by A. L. St. George, plaintiff, against James A. Printy, defendant, plaintiff claiming false and fraudulent representations in the sale by defendant to her of a violin. From a judgment for defendant, on trial by the court, plaintiff appeals.
    M. J. St. George, for appellant.
    Charles Daniels and Michael P. Morrissey, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    L. S. Dickey, Appellee, v. Mary Wells et al., Trustees, Appellants.
    Gen. No. 22,537.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1752

      —when judgment affirmed for insufficiency of abstract. An abstract which is a mere index to the record and does not comply with Rule 18 of the Appellate Court warrants affirmance of the judgment.
    2. Landlord and tenant—when landlord liable for damages due to escape of steam from pipe left in unprotected condition. Where the owners of a steam-heated apartment building failed to place a cap upon the open end of a radiator pipe in an apartment after removing the radiator therefrom in the spring, although the attention of the owners’ foreman and of the janitor of the building was called to the matter, and in consequence thereof when steam was turned on in the building in the fall, seven months later, during the absence of the lessee of the apartment, the lessee’s property was damaged by steam which escaped from the unprotected pipe, held that the unprotected condition of the pipe was the result of a positive wrongful act on the part of the owners’ employees, the provisions of the lease exempting the owners from liability for any damage occasioned by steam and water pipes, “except from the positive wrongful act of the lessor herein or his employees.”

      Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Action: by L. S. Dickey, plaintiff, against Mary Wells, Thomas E. Wells, John E. Wells and Preston A. Wells, trustees under the will of Thomas Edmund Wells, deceased, defendants, for damages for injuries to plaintiff’s property in his apartment in defendants’ steam-heated apartment building, caused by steam escaping from an unprotected pipe in the dining room. From a judgment for plaintiff for the sum of $110.90, defendants appeal.
    Sonnenschein, Berkson & Fishell, for appellants.
    Winston, Payne, Strawn & Shaw, for appellee; Walter H. Jacobs and George A. Kelly, of counsel. 7

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Landlobd and tenant, § 197 —when evidence sufficient to sustain verdict in action for damages for leaving steam pipe in unprotected. condition. Evidence held sufficient to warrant the verdict of the jury in an action by a lessee for damages for leaving the end of a radiator pipe in a steam-heated apartment building- unprotected.


text:
    Crane Company, Appellant, v. Charles E. Ummach, Appellee.
    Gen. No. 22,544.
    1. Fbaud, § 24

      —when verdict for defendant improperly directed in action for damages against officer of corporation for malting false statements as to its financial standing for purpose of obtaining credit. In an action for fraud and deceit, where the plaintiff showed that the defendant had, for the purpose of securing a continuing line of credit for a corporation of which he was president, made a statement as to its resources and liabilities, upon which credit was given to the corporation and later to a corporation of another name in which the defendant was a stockholder but not an officer, and plaintiff offered to prove that said statement was materially false and misleading and that the two corporations, though differing in name, were one in corporate entity, held that the evidence properly offered or submitted tended to prove that material false representations were made by defendant upon which plaintiff relied in extending credit to the last-mentioned corporation, and that the court erred in directing a verdict for defendant.

      2. Fraud, § 127

      —when negligence of seller in delivering goods in reliance upon financial statement is question for jury. Where goods were delivered to a buyer corporation two and one-half years after, and in reliance upon, a certain statement made by its president as to its financial condition with request for a continuing line of credit, which statement contained false and fraudulent representations, held that the seller was not negligent as a matter of law in so delivering the goods.
    3. Fraud, § 24

      —what is effect of change of name of corporation on liability of officer for making false financial statements for purpose of obtaining credit. Where the president of a corporation made false and fraudulent representations as to its financial condition for the purpose of securing a continuing line of credit for the corporation, held that the fact that the name of the corporation was thereafter changed while its corporate entity was otherwise retained did not change the liability of such officer because of such representations for credit given such corporation in reliance thereon after such change of name.
    4. Fraud, §. 92

      —when exclusion of evidence in action for making false statement as to financial condition of corporation for purpose of obtaining credit is erroneous. In an action for fraud and deceit in making false and fraudulent representations as to financial condition of a corporation for the purpose of securing continuing credit for the corporation, held that it was error for the court to refuse to admit evidence that such corporation and one of another name to which credit was given on subh representations were one and the same corporation under different names.
    Appeal from the County Court of Cook county; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 5, 1917.
    Alden, Latham & Young, for appellant; T. A. Sheehan, of counsel.
    Culver, Andrews, King & Cook, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

This is an action on the case for fraud and deceit, begun by plaintiff against the defendant in the County Court of Cook county. The declaration, consisting of two counts, avers that on January 10,1912, the defendant made an application to the plaintiff for a line of credit, and that to induce such credit and to procure the goods and merchandise of the plaintiff the defendant made certain false representations, upon which the plaintiff relied and upon which it delivered its goods to the defendant. Defendant filed a plea of the general issue. Trial was had in the County Court, and at the close of the plaintiff’s case the court directed a verdict in favor of the defendant for costs. Plaintiff brings the case here for review.

The evidence submitted on behalf of plaintiff tends to prove that the W. S. Edwards Manufacturing Company was organized in the State of Illinois; that some time during the year 1911 the defendant became interested in that company and was made president thereof; that on December 21, 1911, the name of this corporation was changed to that of Ummach Manufacturing Company; that in the latter part of the year 1911 and prior to such change in the name of the corporation, Ummach called upon Mr. Stiles of the plaintiff company and requested a line of credit with plaintiff. Stiles requested Ummach to mail to him a statement of the financial condition of his company. Ummach complied with this request of Stiles and mailed him a letter a copy of which follows:

“Chicago, January 10, 1912.

“Mr. Stiles,

c/o Crane Company,

Dear Sir :—

As per our recent conversation, we herewith submit a statement of otir financial standing at the close of business December 31, 1911:

Resources.

Accounts receivable......"... .$37,826.72

Cash in hank and on hand..... 1,416.20

Merchandise, inventory, Dec. 31, 1911 ................. 76,351.85

Machinery, tools, etc.......... 25,500.00

(This item taken at 50 per cent, less than formerly) -:—= $141,094.77

Liabilities.

Capital stock................$50,000.00

Accounts payable............ 32,783.16

Surplus ..................... 58,311.61 $141,094.77

Respectfully,

Charles E. Ummach.”

On receipt of this letter Stiles gave instructions to the proper officers of his company to extend credit to the Ummach Manufacturing Company in an amount not to exceed $1,000 or $1,200. Thereafter the plaintiff continued to sell goods to the Ummach Manufacturing Company and its successor, the W. S. Edwards Manufacturing Company, until the time they went into bankruptcy in the year 1914, and within a few weeks of the delivery to the Edwards Company of the last bill of goods sold to it by the plaintiff.

It also appears from the evidence that the name of Ummach Manufacturing Company was in turn changed back to that of W. S. Edwards Manufacturing Company on May 22, 1913; that a short time before this second change of name took place, Ummach had severed his official connection with the Ummach Manufacturing Company, although he retained a stock interest therein; that Stiles had a conversation with Ummach after this last change in name, in which conversation nothing was said one way or another about the financial condition of either the Ummach Company or the Edwards Company.

During the months of May, June and July, 1914, the plaintiff delivered goods to the W. S. Edwards Manufacturing Company of the cash value of $272.80. A short time thereafter the Edwards Company went into bankruptcy, and the plaintiff insists that there is now due. it, after allowing certain credits, the sum of $129.63. It is sought to recover this amount from the defendant.

We are of the opinion that the court erred in directing the jury to return a verdict for the defendant, as we believe that the evidence properly offered or submitted by the plaintiff fairly tends to prove that material false representations were made by Ummach upon which the plaintiff relied and because of which it extended credit to the corporation in which Ummach was interested as a stockholder or officer. The plaintiff offered to prove that the statements contained in the letter of January 10, 1912, were materially false and misleading, and that the then liabilities of the Um-mach Manufacturing Company were in fact $119,411.68 instead of $32,783.16, as represented in the letter of Ummach to the plaintiff; that the corporation’s name had been changed twice but that there had been no change in the corporate entity itself.

The trial judge seemed to be under the impression that the changes in the name of this corporation indicated that more than one corporation were involved in the transactions here referred to. Whether this.be so or not, counsel for plaintiff offered to prove that as a matter of fact there was but one person or one corporation involved in the representations out of which this suit grew. We think counsel should have been permitted to make this proof. If the changes referred to here were in name only, if the same corporation had continued to do business under different names, then it cannot be held that the representations which were made by the defendant were made on behalf of one company and the credit given to another.

We are also of the opinion that the court erred in holding that the plaintiff was guilty of riegligence as a matter of law. It is true that the goods for the value of which suit was brought were delivered two and one-half years after the representations were made, but these representations were made in pursuance of a request for a continuing line of credit. That the representations made by defendant were grossly fraudulent is not denied upon this record, and it cannot be said that the plaintiff was negligent as a matter of law in relying upon them, coming as they did from one who was authorized to make them on behalf of his corporation.

There is no merit at all in the contention that a mere change in the name of a corporation could permit it to escape liability for its acts. Ummach was the agent of and had the right to speak for the corporation, whatever name or names it may have used in the transaction of its business, and under the law he is personally' liable for such fraudulent conduct, if any, which may have resulted in damage and injury to the plaintiff. Whether the changes in the corporate entity were merely nominal, whether the representations were in fact made, and, if so, whether the plaintiff relied upon them, were questions of fact which should have been submitted to the jury.

In Lowdon v. Fisk (Tex. Civ. App.), 27 S. W. Rep180, the court said:

“It is well understood that such representations are made as a "basis for continuing credit, and it is not necessary that they should be made exactly at the time of the sale. Such a requirement would be unreasonable. The length of time that has elapsed since the making of the statement, within reasonable limits, is for the consideration of the court and" jury in passing on the question as to the extent that the sale was actually influenced thereby.” See also, Brown v. Lobdell, Farwell & Co., 51 Ill. App. 574.

For the error in directing a verdict in this case the judgment of the County Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice "Dever

text:
    In the Matter of Petition of Frantiska Dvorakova, arrested at the suit of Mary Trembacz. On appeal of Mary Trembacz, Appellant, v. Frantiska Dvorakova, Appellee.
    Gen. No. 22,553.
    (Not to be reported in full.)
    Abstract of the Decision.
    Execution, § 295

      —when evidence is insufficient to show that malice was the gist of action. Where the evidence on a petition for release under the Insolvent Debtors’ Act (J. & A. U 6198 et seq.) showed only the fact and the amount of the judgment in the action under which the petitioner was in arrest, and did not show the nature of the claim, evidence or verdict upon which such judgment was based, held that there was no evidence tending to show that malice was the gist of such action, notwithstanding a statement was introduced in evidence, but not identified as a pleading in said action, that the plaintiff therein complained that petitioner had maliciously caused her arrest for disorderly conduct.
    Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Rehearing denied February 19, 1917.
    Statement of the Case.
    Petition'by Frantiska Dvorakova, petitioner, against Mary Trembacz, respondent, for release of petitioner from arrest under the Insolvent Debtors’ Act (J. & A. jf 6198 at seq.). From a judgment for the petitioner, respondent appeals.
    Frank Peska, for appellant.
    No appearance for appellee.

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

   Mr. Justice "Dever

delivered the opinion of the court.


text:
    Douglas State Bank for use of William Hardy, Plaintiff in Error, v. Chicago Bonding & Surety Company, Defendant in Error.
    Gen. No. 22,576.
    1. Corporations—who may make affidavit of merits denying genuineness of signature of person as attorney in fact for corporation. Under Rule 23 of the Municipal Court of Chicago, adopting section 52 of the Practice Act (J. & A. j[ 8589), an affidavit of merits, denying on behalf of a corporation that the purported signature of a certain party as attorney in fact for the corporation was not his genuine signature and that he did not sign the instrument, may be made by any agent of the corporation duly authorized to make such affidavit, and same need not be made by such party whose signature is denied therein.
    2. Bonds, § 37

      —when admission of evidence is harmless error. In an action on a stay of execution bond against a corporation as surety, wherein the genuineness of the signature of a certain person as attorney in fact for the defendant was denied, held that the admission of evidence tending to prove that a certain person had forged the signature of the attorney in fact, and that after the execution of.such bond such forger was a fugitive from justice and had left the city, was harmless error.
    3. Bonds, § 38

      —when genuineness of signature is question for jury. In an action against a corporate surety on a stay of execution bond, held that the question of the forgery of the signature of an attorney in fact for the corporation was a question for the jury.
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Clyde C. Fisher, for plaintiff in error.
    Sabath, Stafford & Sabath, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

This ease comes to this court on a writ of error to the Municipal Court of Chicago, wherein a judgment was entered in favor of the defendant. Suit was brought on a “Stay of Execution” bond which it was alleged the defendant had executed as surety in case bio. 390,027 in the Municipal Court. An affidavit of merits was filed by the defendant in which Albert N. Jacobs, as its duly authorized agent, stated “that defendant never executed the bond set forth in plaintiff’s statement of claim; that the purported signature of Chester Strail, attorney in fact, is not the genuine signature of the said Chester Strail; that he never signed same; and that it is not indebted to the plaintiff on said purported bond.”

Plaintiff contends that the affidavit of merits which was signed by Jacobs as agent of the defendant, under Eule 23 of the Municipal Court of Chicago and under section 52 of the Illinois Practice Act (J. & A. ft 8589) should have been sworn to by Strail, the person whose signature it is claimed was forged in the bond in question.

Eule 23 of the Municipal Court, as it appears in the record here, adopts section 52 of the Practice Act, which provides that where a defendant is sued upon any instrument in writing he may not deny the execution of such instrument unless such denial is verified by his affidavit; as a proviso it is stated that “if the party making such denial be not the party alleged to have executed or assigned such instrument, the denial may be made on the information and belief of such party.” The defendant is a corporation. The theory of plaintiff is that the bond sued on is the bond of defendant, and not that of Strail. The defendant being a corporation, all of its acts are performed for it by agents; it is incapable of binding itself by any instrument or contract except through the acts and with the aid of such agents. The affidavit purports to have been made by Jacobs as the duly authorized agent of the defendant, and we are at a loss to understand how the defendant could have executed the affidavit in question in any other manner. There is nothing in the law which requires that an affidavit such as the one filed in this case should be executed by any particular officer of a corporation. From the language of the proviso of section 52 above quoted, it may reasonably be inferred that the Legislature intended that it would be necessary in cases such as the one at bar that the affidavit required of the defendant should be executed by a properly authorized agent. Strail, the person whose signature it is alleged was forged to the bond in question, testified as a witness in the case and denied that he executed such bond. It might be inferred from this that it was possible for the defendant to have denied the execution of the bond by the affidavit of Strail himself ; yet we find nothing in the statute referred to or in the decisions that leads us to the belief that the denial could not be made by any other authorized agent of the defendant.

It is further insisted by the plaintiff that the court erred in admitting certain testimony over the objection of the plaintiff. The evidence taken at the trial tended to prove that one Lewinsohn had forged Strail’s signature in the bond, and certain evidence was admitted which tended to prove that after the execution of the bond Lewinsohn, being a fugitive from justice, had left the City of Chicago. We are inclined to the view that some of this evidence was erroneously admitted, but we do not think that the error of the court in this regard was so serious as to warrant us in reversing the judgment for that reason.

It is contended also that the verdict and judgment are against the weight of the evidence. There are in the record photographic copies of two instruments which contain the genuine signature of Strail, as also the bond in which appears the alleged forged signature. An examination of these papers will disclose that there is a very marked similarity between these signatures; yet, notwithstanding this fact, the question of the genuineness of the signature in question became a question of fact for the jury, and we are unable to say that the finding of the jury is unsupported by the evidence.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Sidney L. Stein and Edward J. Ehrhardt, copartners, trading as Stein & Ehrhardt, Defendants in Error, v. Herman Emerman, trading as H. Emerman & Company, Plaintiff in Error.
    Gen. No. 22,583.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Denis E. StmnivAN, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment of nil capiat.

    Opinion filed February 5, 1917.
    Statement of the Case.
    Action by Sidney L. Stein and Edward J. Ehrhardt, copartners, trading as Stein & Ehrhardt, plaintiffs, against Herman Emerman, trading as H. Emerman & Company, defendant, to recover on a contract between real estate brokers to pay plaintiffs four hundred dollars as their part of a commission in making a loan. From a judgment for plaintiffs for four hundred dollars, defendant brings error. >

    William Friedman, for plaintiff in error.

      Abstract of the Decision.
    Contracts, § 294

      —when performance is condition precedent to maintenance of action for breach. Under a contract between real estate brokers whereby defendant agreed to pay plaintiffs a part of a commission in making a second mortgage loan and providing that the amount specified should be paid plaintiffs when the money on the mortgage was paid, held that the right of the plaintiffs was dependent on the making of the loan as a condition precedent, and that they could not recover under such contract without first showing that the loan was in fact made.
    Isidore S. Blumenthal, for defendants in error.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Thompson Brothers Feed Company, Appellee, v. Neiman Brothers Company, Appellant.
    Gen. No. 22,596.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Rehearing denied February 16, 1917.
    Statement of the Case.
    Action by Thompson Brothers Feed Company, a corporation, plaintiff, against Neiman Brothers Company, a corporation, defendant, to recover $828.39 on account stated for balance due on merchandise sold. From a judgment for plaintiff, defendant appeals.
    T. O. Thompson, an officer of the plaintiff, testified that he had had conversations with the defendant’s officers in reference to the account, and that Louis J. Neiman, treasurer of the defendant company, said that if plaintiff would allow a disputed item of $105 the balance of the account, $828.39, would be paid; that Alexander Neiman, president of the defendant company and a brother of Louis, also said “that he would take care of us, he would give a chattel mortgage and that everything would be all right”; that a statement of the account was mailed to the defendant every month, and that the Neimans had never questioned its correctness except as to the matter of the $105 item which plaintiff allowed to defendant.
    Abstract of the Decision.
    1. Account stated, § 25

      —when evidence sufficient to show. Evidence held to support the finding of the court that the plaintiff’s claim arose on an account stated, in an action to recover for balance due after allowance of a disputed item.
    2. Cobpobations, § 354

      —when hound hy action of officers. A corporation is bound by the action of its president and treasurer in accepting an account as an account stated.
    3. Pleading, § 153

      —what defenses must he set up in affidavit of merits in action on account stated against a corporation. The defenses to an action against a corporation on an account stated, that the debt was due to an individual and that the agreement to pay the debt was voidable under the Statute of Frauds and was ultra vires as to the corporation, come too late when first made after the filing of an affidavit of merits; they should be specifically set up in such affidavit.
    4. Pleading, § 153

      —when affidavit of merits is insufficient. In an action on an account' stated, an affidavit of merits held insufficient to show that the indebtedness sued on was that oí an individual and not the defendant corporation or that the defendant had entered into a voidable agreement to pay such indebtedness.

      William Friedman, for appellant.
    Levisohn & Levisohn, for appellee; Alvin E. Stein, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

5. Trial, §, 295 —when propositions of Taw should he tendered. Propositions of law should be tendered before announcement of final judgment.


author: Mr. Justice Defer

text:
    A. D. Cronstedt; A. D. Cronstedt and Ralph Berg, trading as Ralph Berg & Company, Appellees, v. Thomas T. McCormick, Appellant.
    Gen. No. 22,608.
    Brokers, § 28

      —when evidence is sufficient to support judgment for plaintiff in action for commission for exchange of real estate. Where the plaintiff, an unlicensed real estate broker, on behalf of the defendant initiated and was the procuring cause of an exchange of defendant’s property for other property which was effected after plaintiff had become a member of a firm which was duly licensed to conduct a real estate brokerage business, held that the evidence supported a finding and judgment for the plaintiff, in an action to recover a commission for effecting such exchange.
    Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Arthur A. Basse, for appellant.
    Gurdou Williams, for appellees.

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

   Mr. Justice Defer

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago for the sum of $175.

In November, 1914, the defendant, Thomas T. McCormick, listed for exchange a farm which he owned in Reno county, Kansas, with the plaintiff, A. D. Cronstedt, a real estate agent. The evidence taken on the trial tends to prove that Cronstedt, at the time the property was listed with him, was not duly licensed to conduct a real estate business in Chicago; that in March, 1915, he became a member of the real estate firm of Ralph Berg & Company, and that on March 4, 1915, there was issued to this firm by the City of Chicago a broker’s license expiring January 1, 1916; that on June 23, 1915, Cronstedt procured a broker’s license to deal in real estate in his own name. This latter license it appears was taken out for the reason that Berg, a member of the firm, had on May 17, 1915, unexpectedly gone to Arizona; he returned to Chicago in July, 1915, and resumed his partnership relations with Cronstedt.

In the latter part of February, 1915, Cronstedt submitted to the defendant a building owned by Robert F. Schenck and located at 66th street and Ingleside avenue in Chicago. Cronstedt and McCormick together went to the Schenck building, and McCormick authorized Cronstedt to say to Schenck that he, McCormick, would trade his Kansas farm for the Schenck property subject to the incumbrance of $20,000. Schenck, through his agent, one Hanson, refused this offer but said he would trade if McCormick would take the Chicago building subject to an incumbrance of $22,000. McCormick refused to accept, this offer. On April 13, 1915, McCormick gave to Cronstedt a written proposition for a trade of the properties which Cronstedt mailed to Schenck.

Cronstedt testified that he saw McCormick again in June, 1915, when the latter stated that he would not consider Schenck’s proposition, and that he had in prospect a trade for another building; that he, Cronstedt, had had several conversations, with McCormick with reference to the proposed exchange of the properties in August and October, 1915, and in January and February, 1916.

The evidence discloses that on May 11,1915, McCormick and Schenck entered into a contract for the exchange of the properties in question, and mutual trans fers thereof were made in July, 1915.

It is urged by the defendant that Cronstedt is not entitled to any commissions by reason of the exchange of these properties because he was not a duly-licensed real estate broker in Chicago at the time the transfer was made. There is not much merit in this contention. Cronstedt became a member of the Ralph Berg & Company firm in March, 1915, and at that time his firm was licensed to conduct a real estate brokerage business. The contract for the exchange of the property was entered into in May, 1915; the actual transfer took place in July of the same year. The evidence submitted on the trial by the plaintiff fairly tended to prove that he was the procuring cause of the exchange of the defendant’s farm for Schenck’s Chicago property. He and McCormick together examined the Schenck property, and it appears from the evidence that Cronstedt had exercised reasonable industry to bring about the exchange which was ultimately made by the parties themselves, during a period of several months.

The defendant-denied that he had concealed from plaintiff the fact that he had entered into the contract with Schenck; he stated that he had informed plaintiff on several occasions of the fact of his relations with Schenck. On this subject there was a direct contradiction as between these parties, and the matter was one of fact for the determination of the trial court. There can be little doubt from this evidence that Cronstedt had in good faith given of his time and energy to bring about the exchange of the properties which was afterwards made, and we believe there is sufficient evidence in the record to sustain the findings and judgment of the trial court.

Complaint is made of the rulings of the trial court with reference to the admission of certain evidence. As to this complaint we do not think that any error was committed which would authorize a reversal of the judgment.

The judgment is affirmed.

Affirmed.


text:
    Charles W. Gillett, Plaintiff in Error, v. Elizabeth Parker Bryant, formerly Elizabeth Parker Gillett, Defendant in Error.
    Gen. No. 22,228.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Bill for divorce by Elizabeth Parker Gillett, now Elizabeth Parker Bryant, complainant, against Charles W. Gillett, defendant, charging defendant with habitual drunkenness. Prom an order, upon defendant’s petition, awarding defendant the custody of the children for a limited time, after a decree rendered divorcing the parties and awarding the custody of their children to complainant and forbidding defendant to interfere until further order of the court, defendant brings error.
    The decree found the defendant to be an unfit person to have the care, custody, control and education of the children, a boy then seven and a girl then four years of age. They resided with their mother for about a year, when she married one Bryant, a British subject, since which time they lived with her and Bryant at their home in Lake Forest, Illinois. About two years and seven months later, the defendant filed a petition praying that the care and custody of the children be changed to himself. After extended hearing the prayer was denied, but the decree was modified so as to give the defendant the right to visit and talk with the children and be with them on Saturday of each week from twelve o’clock noon to six o’clock in the evening free from interference or espionage of their mother or her agents, servants or others in her behalf, to be delivered to petitioner and returned by him at a specified place, with special provisions as to sickness, vacations, failure of petitioner to meet the children, etc. The order expressed the court’s intent eventually upon proper showing to give the petitioner the right to have charge and control of the children at night as well as during the day, and also directed that they should be known by their father’s name. The order found petitioner had become a sober, temperate man.
    Abstract of the Decision.
    1. Divorce, § 153

      —when children of tender years will not he taken from custody of their mother. As a general rule, children of tender years will not be taken from the custody of their mother where she is physically, morally and by general environment a proper person for them to live with and be controlled by.
    2. Divorce, § 159

      —when retention of custody of children properly not denied to their mother. On a petition by a party divorced from Ms wife, praying that the divorce decree awarding the custody of their children to her be changed and their custody be awarded to him, held that, looking to the best interests of the children, who were of tender years, and their care and nurture the chancellor, under the circumstances, did not exceed the exercise of sound, humane, judicial discretion in allowing the mother to retain their custody.

      Francis W. Walker and Donald O. Muhleman, for plaintiff in error; Francis W. Walker, of counsel.
    Winston, Payne, Strawñ & Shaw, for defendant in error; Edward W. Everett, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Divobce, § 153 —when mother preferred over paternal grandmother as to custody of children. All things being equal as between the mother and the paternal grandmother of children of tender years, the mother has the preference In law in the matter of the custody and nurture of the children. ,

4. Divobce—what is effect of marriage of divorced mother to alien on right to custody of children. The fact that a woman’s husband is a British subject, and that by her marriage with him her political status follows his, will not, while they live together within the jurisdiction of a domestic court, affect her right to the custody of her children by a former marriage who are American citizens. i

5. Divobce, § 150 —when jurisdiction of domestic court over children of divorced parents is not divested. Children of divorced parents, who are American citizens, remain such notwithstanding their mother’s subsequent marriage to the subject of a foreign power, and are subject to the jurisdiction of a domestic court and its orders concerning their custody as their welfare may demand.

6. Divobce, § 150 —when evidence is insufficient to show that children were estranged from, the father. Evidence held not to show that the children of divorced parents were being estranged from their father, on a petition by the father for their custody, they having been in the custody of their mother by decree of court.

7.. Divobce, § 150 —what is extent of jurisdiction of court over children after divorce. The jurisdiction of the court over the children of parties to a suit for divorce continues after the divorce decree, and such children are wards of the court subject to its future orders and directions as to their care and custody.


text:
    The People of the State of Illinois ex rel. Emma L. Parker, Plaintiff in Error, v. Mrs. William Bryson, Defendant in Error.
    Gen. No. 22,540.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Infants, § 4

      —what does not constitute abandonment of child by mother. Where a mother, before her pains of maternity had scarcely ceased, allowed her baby to be taken from her under a secret arrangement between her husband and a physician at a hospital where her husband had placed her for confinement, of which arrangement she was ignorant but passively assented thereto, and the physician refused her any information when ashed as to the child’s whereabouts, and she was unable to ascertain its whereabouts until after her husband’s death, when, upon learning where it was, she instituted habeas corpus proceedings to secure its custody, held that there was no abandonment in fact or in law by her of her child.

      Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed February 5, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Habeas corpus proceedings by the People of the State of Illinois ex rel. Emma L. Parker, petitioner, against Mrs. William Bryson, respondent, for the custody of a female child. From a judgment for respondent, relatrix brings error. For the decision on a former appeal, see 198 Ill. App. 171.
    Shepard, McCormick, Thomason, Kirkland & Patterson, for plaintiff in error; Perry S. Patterson, of counsel.
    Benjamin E. Burr and Emory Smith, for defendant in error; Benjamin E. Burr, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Parent and child, § 3 —when right of mother of child to its custody will ~not he curtailed. The mother of a child, its father being dead, is its natural guardian and custodian, and her right will not be infringed or curtailed unless there is something in her life and conduct which manes her an undesirable character to be intrusted with its care and nurture.

3. Infants, § 4 —when mother is proper person to have custody of child. Where the mother of a child was shown to be a woman of education, refinement and exemplary conduct, and the only criticism upon her life or character possible to be indulged was her indiscretion in yielding under promise of marriage to the father of the child, held that she was a fit person to have its care, custody and nurture.

4. , Infants, § 4 —when for hest interests of child that its mother have custody of it. All other things being equal, it is for the best interests of a child that it be brought up by its own mother rather than by a foster- mother.

5. Infants, § 4 —when for hest interests of child that mother he preferred as to custody over foster mother. In a habeas corpus proceeding between the natural mother and the foster mother of a child for its custody, where the foster mother appeared to be husbandless and was employed away from her home from 5:30 to 9:30 each evening, leaving the baby in the care of others in a store, and the natural mother was shown to have a home on her father’s farm where she could give the child her maternal and undivided care and attention and rear it in the atmosphere of a healthy country environment, with the protection of her father, held that it would be to the best interests and welfare of the child that it be brought up and cared for by its natural mother.

6. Appeal and error, § 1725 —when opinion of Appellate Court is law of case. The opinion of the Appellate Court on appeal in a former habeas corpus proceedings by a mother against the foster mother of her child is binding as the law of the case in similar proceedings between the same parties.


text:
    Reuben B. Edmunds, Appellant, v. City of Chicago, Appellee.
    Gen. No. 22,578.
    1. Municipal corporations, § 1233

      —what is necessary averment in declaration against city for personal injuries. A cause of action against a city in a personal injury case is not well stated unless the declaration affirmatively shows that the notice required by Hurd’s Rev. St. ch. 70, sec. 7 (J. & A. j[ 6190), was served upon the city, except in a statement of claim in a fourth-class action under the Municipal Court Act.
    2. Pleading, § 34

      —when averment of giving notice in declaration by reference to exhibit is not permissible. Where service of a notice upon the defendant is required in the statement of a cause of action at law against him, an averment of the giving of the notice by reference in the declaration to an exhibit attached thereto is not permissible either under common-law pleadings or by virtue of any statute of the State of Illinois, and is without any force or effect.
    3. Pleading, § 34

      —how service of notice on defendant should be set out. Where service of notice upon the defendant is required in the statement of a cause of action at law against him, such notice should be set out either in its terms or in its tenor and legal effect.
    4. Limitation of action, § 64

      —what constitutes statement of new cause of action. A declaration in an action against a city in a personal injury case which omits an averment of service of the statutory notice within the statutory time states no cause of action, and an amendment after the statutory period of limitation of actions setting up such notice constitutes a statement of a new cause of action.
    5. Pleading, « § 223

      —what is effect of abiding by demurrer. Where the defendant was granted leave to withdraw a plea of general issue and to file a demurrer, which was sustained, and plaintiff was granted leave to amend his declaration, to which amended declaration the defendant filed a plea of the statute of limitations, and, upon the overruling of the plaintiff’s demurrer to such plea, the plaintiff elected to stand by his demurrer, held that plaintiff waived the right to challenge whatever erroneous exercise of judicial discretion there may have been in allowing the defendant to withdraw his plea of the general issue and to file demurrer to the original declaration.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 6, 1917.
    James C. McShane, for appellant.
    Samuel A. Ettelson and Charles E. Francis, for appellee; Egbert H. Farrell and Henry T. Chace, Jr., of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an action for personal injury. The merits of the case are not involved. The questions in dispute relate to the pleadings only.

The action was originally commenced against the City and two others, but at the time of the entry of the judgment appealed from the City was the only defendant. The action was commenced February 25, 1914. The original declaration was filed April 24, 1914. On May 5, 1914, the City filed its plea of the general issue. On March 21, 1916, when the case was called for trial, leave was granted defendant to withdraw its plea and to file a demurrer in its place, which it did, and the demurrer being sustained, plaintiff then, by leave of court, .filed an amended declaration, to which defendant filed a plea of the general issue and also a plea of the statute of limitations. To the plea of the statute of limitations plaintiff filed a demurrer, which the court overruled and, plaintiff electing to stand by his demurrer, judgment upon the limitation plea was entered in favor of defendant and against plaintiff for costs.

In actions of this nature against municipalities, section 7, ch. 70, Hurd’s Eev. St. 1915-16 edition is material (J. & A. ft 6190). It reads:

“Any person who is about to bring any action or suit at law in any court against any incorporated city * * * for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney * # * and also in the office of the city clerk a statement in writing signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).”

In the original declaration the following averment was made:

“And plaintiff further alleges that after he sustained his said injuries as aforesaid, that is to say on January 27, A. D. 1914, he, through his attorney, served upon the city attorney and city clerk of the City of Chicago and filed in the office of the said city attorney and said city clerk a notice or statement, copy of which is hereto attached and marked Exhibit A and is hereby made a part of this declaration.”

In the amended declaration the notice is set forth by proper averment in haec verba. It is contended, and the learned trial judge acted upon the theory in overruling the demurrer to the defendant’s plea of the statute of limitations, that the original declaration did not state a cause of action and that the amended declaration, which sufficiently set forth the giving of the statutory notice, stated a new cause of action, which is barred by the statute of limitations.

It i& settled in Walters v. City of Ottawa, 240 Ill. 259, that a cause of action is not well stated against a city in a personal injury case unless the declaration affirmatively shows that the notice required by the statute was served upon the city,' and in Erford v. City of Peoria, 229 ibid. 546, in passing upon this precise question, the court said:

“Statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit.”

Did the original declaration show that the statutory notice was served upon the City? This is the crucial and determining factor.

The method adopted by the pleader in averring the giving of notice by reference to an exhibit attached to the declaration was abortive for that purpose. While such practice is common in equity, it is not permissible under common-law pleadings or. .in virtue of any statute of this State. Jones v. City of Chicago, 167 Ill. App. 175.

We appreciate the point ably argued by plaintiff that to sustain the judgment of the trial court we must, logically, hold to thq ruling in Walters v. City of Ottawa, supra, that the original declaration did not state a cause of action. The attempt to set forth the alleged notice to the city by reference to an exhibit attached to the declaration was meaningless and without any force or effect in a common-law pleading. It must be treated as surplusage and as serving no purpose as a pleading. Were we able to extract from the words used an averment of the giving of the statutory notice, another question might arise. The document claimed to have been served is referred to as “a notice or statement.” A notice or statement of what? The words used give no indication of what the statement or notice in fact was. We are not permitted to surmise or guess what it was. If the fact cannot be ascertained from the language used, then it is of no import. To be of service the notice should be set out either in its terms or in its tenor and legal effect.

The rule that a pleading must be taken most strongly against the pleader is the canon of interpretation in the instant case. This rule applied to the averment of notice renders that averment unintelligible and of no meaning. It is not even equivocal or susceptible of a dual meaning. Standing alone as it must, and without reference to the exhibit referred to, which we are not allowed to inspect, the words are without import. The original declaration, lacking an averment of service of the statutory notice within the statutory time, states no cause of action—not a cause of action imperfectly stated as argued by plaintiff, but states no cause of action. If a cause of action had been imperfectly stated, then the amended declaration would have been a sufficient curative. Failing this, it follows that the amended declaration states a new cause of action, which is barred by the statute of limitations. As defendant invoked the limitation statute as a defense in bar, it was entitled to the judgment of the court in its favor.

The question of the propriety of the court’s action in allowing defendant to withdraw its plea of the general issue and interpose a demurrer to the original declaration is not preserved for review. The demurrer to the original declaration was sustained, and plaintiff asked and obtained leave tó file an amended declaration. It is the amended declaration, filed by leave so obtained by plaintiff, to which defendant filed its plea of the statute of limitations, the demurrer of plaintiff to which was overruled and, plaintiff electing to stand by his demurrer, the judgment now being reviewed was entered. In this state of the pleadings, plaintiff waived the right to challenge whatever eironeous exercise of judicial discretion there may have been in allowing defendant to withdraw its plea of the general issue and substitute its demurrer to the original declaration.

The Supreme Court in its wisdom has seen fit in Enberg v. City of Chicago, 271 Ill. 404, to lay down a different rule concerning the necessity of setting forth the statutory notice in a statement of claim for per-sonal injuries against a city in a fourth-class action in the Municipal Court. The distinction is clearly based upon a construction of the Municipal Court Act, and the holding by the court that the statement of claim in a tort action in the Municipal Court does not arise to the dignity of a common-law declaration, requiring all the material or ultimate facts of a case to be stated or pleaded. The doctrine of Watters v. City of Ottawa, supra, is not only not departed from but confirmed, although it is distinguished as not being pertinent to, the Municipal Court practice nor analogous to pleadings in that court which are founded and controlled by different principles and legislative acts than those of the common-law courts of the State.

The judgment of the Superior Court is supported by the record, and is affirmed.

Affirmed.


text:
    J. E. Slater, Plaintiff in Error, v. Elbert D. Ball, Defendant in Error.
    Gen. No. 22,597.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Action by J. E. Slater, plaintiff, against Elbert D. Ball, defendant, to recover $451.50 upon a note given by defendant. .From a judgment for defendant, plaintiff brings error.

      Abstract of the Decision.
    Bills and notes, § 451

      —when evidence is sufficient to show payment of note. Evidence held sufficient to show that the note sued on and given by the defendant was paid by the conveyance to the plaintiff of a farm.
    Joseph M. Connery, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    H. M. Freeman, Appellee, v. J. T. Counsell, Appellant.
    Gen. No. 22,605.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Judgment by confession taken by H. M. Freeman, plaintiff, against J. T. Counsell, defendant, upon a promissory note, with power of attorney to confess judgment, in the sum of $448.04. From a reinstatement of the judgment, after same had been opened and a hearing had, the defendant appeals.
    The payee of this note became a bankrupt and the plaintiff purchased it through the bankruptcy proceedings prior to maturity of the note. Judgment was entered July 16,1915. The defendant, with knowledge of the entry of the judgment from that date, took no steps to open it until September 30, 1915. His petition then filed was denied, but on a further petition the judgment was opened October 28, 1915.
    The payee of the note, the defendant, and one other owned the stock of the Minden Edison Light & Power Company, which owed the Madison Street Bank, an unincorporated bank owned by the payee, $1,225. The bank being involved in the failure of the La Salle Street Trust & Savings Bank, the defendant gave to the payee his check for $800 and the note in question to pay said indebtedness to the Madison Street Bank, the payee assigning to him twenty-four shares of stock in said company and delivering to him the notes evidencing such indebtedness, with the following agreement:
    “I agree to pay to P. A. Hines Four Hundred Forty-eight Dollars and Four Cents ($448.04), subject to the following conditions:
    “1. That all matters relating to the Minden Edison Light & Power Company, now handled by P. A. Hines, or relatives, be brought up to date and all collections made and forwarded to me.
    “2. That no claim for services shall be rendered against the Minden Edison Light & Power Company or me personally by P. A. Hines or relatives, except that of Clara M. Hines already agreed on.
    P. A. Hines.”
    Shepard, McCormick, Thomason & Kirkland, for appellant.
    C. H. Sippel, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 80 —when denial of motion to open judgment 6y confession on ground of laches is proper. Where a defendant having knowledge that a judgment by confession had been entered against him took no steps to open the judgment until about two months and a half after it was entered, held that the court might well have denied the motion to open the judgment on the ground of laches.

2. Judgment, § 86 —when opening of judgment 6y confession does not affect stipulations in power of attorney waiving errors of procedure. The opening of a judgment by confession for the purpose of allowing the defendant to present a defense does not abrogate the effect of the stipulations in the power of attorney under which the confession of judgment was taken waiving errors of procedure.

3. Contracts, § 86 —when agreement is nudum pactum. An agreement between the payee of a note and the maker made at the time of the giving of the note and relating to the transaction of business in a corporation the shares of stock in which held by the payee were turned over to the maker, who was also a stockholder, and who gave the payee the note sued on and a check to pay indebtedness to a bank to which the corporation owed money, and in which the payee, who alone signed it, promised to pay to himself the amount of the note upon the performance of certain conditions relating to the transaction of the business of the corporation, held to be nudum pactum.


text:
    Lockwood & Strickland Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 22,614.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Wiluam Fenimore Cooper, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 5, 1917.
    Statement of the Case.
    Action of assumpsit by Lockwood & Strickland Company, a corporation, plaintiff, against the City of Chicago, a municipal corporation, defendant, to recover $2,694 paid to defendant under the terms of an ordinance vacating an alley, with consolidated common counts and a special count declaring upon the ordinance and setting it out in haec verba. From a judgment dismissing the action upon sustaining a general demurrer to the special count, plaintiff appeals.
    This action was based upon that portion of the ordinance which reads:
    “The vacation herein provided for is made upon the express condition that Lockwood & Strickland Company, a corporation, shall, within sixty (60) days after the passage of this ordinance, pay to the City of Chicago the sum of twenty-six hundred ninety-four ($2,694) dollars toward a fund for the payment of any and all damages which may arise from the vacation of said alley.”
    Winters, Price & Stevens, George W. Underwood and J. C. Risk, for appellant;' George M. Stevens, of counsel.
    Samuel A. Ettelson, for appellee; Chester E. Cleveland and Donald P. Vail, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal cobpobations, § 83 —when construction of ordinance is question for court. In an action against a city to recover money paid under a city ordinance, upon demurrer to a special count declaring upon and setting out in haee verba such ordinance, held that the right to maintain the action rested in the legal interpretation of the liability of the city to refund the sum paid under the terms of the ordinance, and the question was one of law for the court, regardless of the erroneous conclusion of the pleader.

2. Limitation of actions, § 103 —necessity of pleading arresting of statute. If the running of the statute of limitations has been arrested in any manner, that is matter of defense and need not be anticipated in the initial pleading.

3. Limitation of actions, § 104 —how defect in count setting up running of statute may be availed of. That a count setting up the running of the statute of limitations is bad because not negativing the exceptions, if any exist, which arrest the running of the statute, cannot be reached by demurrer but must be availed of by plea.

4. Municipal cobpobations, § 926 —when person procuring vacation of aUey under ordinance is estopped to question right of city to collect compensation therefor. Where a city ordinance provided that the vacation of an alley made therein should be upon the express condition that a certain party paid a certain amount within a certain time, and the party paid the amount within the time, such party is estopped from questioning the power of the city to exact such payment from him.

5. Municipal cobpobations, § 926 —when party paying money in consideration of vacation of alley may not recover it. The terms of a city ordinance vacating a certain alley upon the express condition that a certain party pay a certain amount within a certain time are regulative of the rights of the parties, and in the absence of a provision therein for the return of the money paid by such party he cannot maintain an action at law for its recovery.

6. Assumpsit, Action of, § 49 -—when money paid may not be recovered. Money voluntarily paid cannot be recovered in an action at law.


author: Mr. Presiding Justice O’Connor

text:
    General Cement Gun Company, Defendant in Error, v. Temple Engine & Pump Company, Plaintiff in Error.
    Gen. No. 21,616.
    (Not to lbe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcombs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Rehearing denied February 20, 1917.
    Statement of the Case.
    Action by General Cement Gnn Company, a corporation, plaintiff, against the Temple Engine & Bump Company, a corporation, defendant, to recover the purchase price of a gasoline engine. From a verdict and judgment for plaintiff for $850, defendant brings error.
    After considerable correspondence, in which defendant offered to sell to plaintiff the engine for $850, a pump for $39, a tank for $6, and a clutch and pulley for $25, making a total of $920, with a guaranty of the engine in certain respects and that it might be returned within a certain time and the purchase price would be refunded if it should prove not as represented, the plaintiff purchased the articles at the aggregate price given. Shortly after the engine was put in operation certain parts broke, whereupon plaintiff returned it, demanded return of the purchase price, and on refusal brought this action. There*was some evidence on the part of defendant of an oral change in the contract at the time of delivering the- order, which was denied by plaintiff. Defendant contended that its letter accepting the order constituted the contract irrespective of prior negotiations.

      Abstract of the Decision.
    1. Sales, § 52

      —when question of what constitutes contract is for jury. In an action to recover the purchase price paid for an engine under a contract made hy correspondence and in part oral, held that it was a question for the jury to determine, under the instructions of the court, what constituted the contract between the parties.
    2. Sales, § 59

      —when question of severableness of contract is for jury. Where several articles upon which separate prices were quoted the buyer were finally sold altogether to him for the aggregate price given, with a guaranty of one of the articles and an agreement that it might be returned if it should prove not as represented and the purchase price therefor would be returned to the buyer, held that it was a question for the jury to determine whether the contract was severable, in an action for the return of the purchase price of such article after the article had been returned to the seller under such guaranty and agreement.
    3. Sales, § 356

      —when evidence is sufficient to sustain finding that buyer has option of returning goods. Where a buyer in his order for goods stated that he should have the option of returning them if found to be not as represented, and the seller in his acceptance of the order stated that he would make any imperfections right or take back the goods and return the money, held that the finding of the jury that the buyer had the option of returning the goods was conclusive as to the contract of the parties in that regard.
    4. Sales, § 357

      —when instruction as to value of article sold is not erroneous. Where the evidence showed a number of articles were sold at the aggregate of the separate prices quoted to the buyer shown in the evidence, held that there was no error in the court instructing the jury as to the price of one of such articles according to the amount shown in the evidence, in an action to recover such amount upon return of the article under the contract of sale.
    Archibald Cattell and Carl A. Waldron, for plaintiff in error.
    Worth E. Caylor, 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 O’Connor

delivered the opinion of the court.

5. Appeal and error, § 479 —when objection as to insufficiency of instructions is made too late. An objection that instructions are contradictory not made at the time the instructions were given cannot be made for the first time in the Appellate Court.