author: Mr. Justice Brown

text:
    Charles F. Forster, Appellant, v. The Brown Hoisting Machinery Company, Appellee.
    Gen. No. 18,742.
    1. Patents, § 12

      —how inventor's rights under contract affected by patent by officer of expectant assignee. On a bill for an accounting and for specific performance of a contract under which complainant was to assign to defendant patents on certain machinery if taken out by him, complainant to receive royalties on sales, correspondence of defendant’s predecessor was held not to intimate that one of its officers acted as complainant’s agent in taking out patents on certain devices in connection with such machinery, or that such patents covered anything invented by complainant or contemplated in the agreement with him.
    2. Patents, § 12

      —how contract for future assignment construed. Contract between complainant and defendant’s predecessor construed as providing that only in case complainant procured patents on a certain combination of machinery within a certain time, and the assignment of same to defendant’s predecessor, was the latter to pay the costs of securing the patent and to pay royalties thereon, and hence not to render it liable for royalties on devises in connection therewith patented by one of its officers, a patent to complainant having been refused.
    3. Patents, § 2

      —when State Court without jurisdiction. On a bill for an accounting and for specific performance of a contract under which complainant agreed to assign to defendant’s predecessor patents on a certain combination, if taken out by him, a patent to complainant having been refused on the ground that some of the claims did not cover combinations, that others were improperly presented in a single application and that several of the claims were covered by patents issued to third persons and to an officer of defendant’s predecessor, contentions that a patent was improperly refused to complainant and improperly granted to such officer as the original inventor are not within the jurisdiction of the State courts.
    4. Patents, § 34

      —when bill for accounting and specific performance barred by laches. Where under his contract with defendant’s predecessor complainant was to receive royalties in the event of his taking out patents on a certain combination and assigning same to defendant’s predecessor, but a patent was refused to complainant partly on the ground that the claims did not cover a combination and partly because they were already covered by patents issued to an officer of defendant’s predecessor, which decision complainant did not contest in the proper tribunals, a bill for an accounting and for specific performance of the contract on the ground that the patents to such officer were in fraud of complainant and obtained through his knowledge of complainant’s scheme is barred by laches where no action was taken during a period of twelve years, the patentee having died in the meantime.
    5. Equity, § 79

      —when laches not affected 6y statute of limitar Hons. The doctrine that a foreign unlicensed corporation cannot, because of its nonresidence, avail itself of a statute of limtations which does not run during nonresidence is inapplicable to a defense based on laches.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.
    Statement by the Court. This is an appeal from a decree of the Superior Court of June 13, 1912, dismissing for want of equity the bill of the appellant (who was complainant below) originally brought against the appellee Company on August 16,1911.
    The bill was twice amended and the dismissal followed an order sustaining a demurrer to said second amended bill, the complainant electing to stand by said second amended bill. The said second amended bill contains these allegations:
    1‘ That Charles F. Forster, complainant, is a resident of Cook County, Illinois;
    That The Brown Hoisting Machinery Company, defendant, is a corporation organized in Delaware and having its principal place of business in Cleveland, Ohio;
    That it is a successor and consolidation of the Brown Hoisting & Conveying Machine Company organized in Ohio in 1881;
    That the latter company was succeeded by the defendant company about October 1, 1900, the changes being of name and amount of capital stock, the personnel of the management of the said companies remaining unchanged;

      That one Alexander E. Brown, who died in 1911, was an officer and a large stockholder in the Brown Hoisting & Conveying Machine Company and a vice-president and director of its successor, the defendant company;
    That it was not until after the preparation of the original hill in this cause had been begun that the complainant learned accidentally of the death of said Alexander E. Brown;
    That neither the defendant company nor its predecessor had at the time this suit was instituted complied with the foreign corporation Act of Illinois;
    That before August 1, 1894, the complainant was the first inventor of an improvement in pig breaking apparatus, not known or used by others, nor patented or described in any printed publication nor in public use or on sale for more than two years prior to his application for a patent therefor;
    That the complainant called Alexander E. Brown, the manager of the predecessor óf defendant company, into consultation with him about said improvement;
    That working under and by virtue of the directions of the complainant, the predecessor of the defendant company in the period of time from August 1, 1894, to January 1, 1899, built and put into full operation at South Chicago, Illinois, in the plant of the Iroquois Furnace Company, a pig breaking apparatus embodying the ideas the complainant had conceived;
    That the ideas so conceived ‘consisted of a pig breaking machine having horizontal plungers combined with overhead carriers and a series of hooks connected to the same for the purpose of grappling the sows and pigs from the pig bed of a cast house, and thereby suspending the pigs thereof vertically from said overhead carrier during the process of breaking said pigs from the sow’;
    That correspondence made a i>a.rt of the bill by exhibits numbered from 3 to 17 will show that Alexander E. Brown repeatedly ‘recognized the priority of’ complainant’s ‘conception relative to the new and useful improvement aforesaid’;
    That February 17,1899, a certain agreement in writing was made between the complainant, the predecessor of the defendant company, and the Iroquois Furnace Company,—of which the complainant was at that time general manager—which is made exhibit 1 to the bill.”

      Note. The bill contains at this point what purports to be the effect of said agreement. As the proper construction of it is one of the essential factors in this cause, the agreement itself is here inserted: '

    “Exhibit 1.
    It is hereby mutually agreed between the Brown Hoisting & Conveying Machine Company, a corporation, The Iroquois Furnace Company, a corporation, and C. F. Forster, that the several matters and things in dispute between them growing out of the contract in relation to the sale and purchase of the Pig Handling and Breaking Machinery erected by the Brown Hoisting & Conveying Machine Company at the plant in South Chicago of the Iroquois Furnace Company are hereby compromised and settled upon the following terms, viz:
    1. The Iroquois Furnace Co. is to pay at the execution hereof the sum of nine thousand seventy-two dollars and fifty-eight cents ($9072.58) as the balance of the full purchase price of ten thousand dollars less the amount of the bill of the Iroquois Furnace Company for labor and materials amounting’ to $877.42 and also less $50 to cover sundry, repairs.
    2. The said Hoisting Company agrees to accept the accumulator heretofore furnished, F. O. B. cars Chicago and to cancel their bill therefor, and also to pay for the accumulator weights an amount at the rate of $31.00 per net ton for the same, also to deliver without charge to the Iroquois Furnace Co. f. o. b. cars Chicago, the bronze bushings heretofore held by them for a formal order as per correspondence.
    3. In case within two years from the date hereof said Charles F. Forster shall obtain U. S. Letters Patent on any invention by him which broadly covers the combination embraced in said Pig Iron Handling and Breaking machinery as now constructed, then the said Hoisting Company agrees to make good to him all outlays by him for solicitors’ and government fees necessarily made in so obtaining or applying for such letters patent, and the said Forster agrees on his part to thereupon assign the said letters patent to the said Hoisting Company, its successors and assigns, and upon such assignment to it the said Hoisting Company agrees that it will allow and pay the said Forster during the life of the said assigned patents a sum ranging between $2,500 and $4,000 for each and every complete Pig Handling and Breaking Machine built by the said Hoisting Company under such assigned patents, the precise sum within the above limits to be in proportion to the capacity of the furnace in each case.
    In case said Forster tenders a written order for said complete machinery covered by the said patent assigned from any reasonable party and the said Hoisting Company, for any reason, declines to accept the same, then said Forster shall have the right on his own responsibility to himself accept and fill such order unless the said Hoisting Company shall pay said Forster $500.00 and expenses not exceeding $500 more necessarily incurred by him in getting such order, and in case under the above conditions the said Forster accepts and executes such order he shall have full right to make, use and sell for the purpose of such order the Pig Handling and Breaking Machinery covered by said patent, and such other patents of the said Hoisting Company as entered into the construction of said machinery at the plant of said Furnace Company in South Chicago at the date hereof.
    It is understood that the tender above referred to shall not oblige the said Hoisting Company to complete the machinery included therein in a shorter time than six months from date of its acceptance and the receipt of full information and dimensions.
    The said Hoisting Company is to furnish said Forster with one complete set of blue prints covering the said Handling and Breaking machinery to be used for the purpose of applying for the patents as above referred to.
    In testimony whereof the said Brown Hoisting and Conveying Machine Co. by F. G. Tallman, its manager, and the said Iroquois Furnace Co. by Chas. F. Forster, its General Manager, and said Charles F. Forster for himself have hereunto subscribed their respective corporate names and individual signatures at Chicago, Cook County, Illinois, on the seventeenth day of February, A. D. 1899.
    The Brown Hoisting & Conveying Machine Co., By F. G. Tallman, Manager.
    The Iroquois Furnace Company,
    By Charles F. Forster, General Manager. Chas. F. Forster.”

      Note: In the allegations of the bill proper this agreement is construed as providing that the complainant should obtain the letters patent described and assign them, etc.

    The bill contains the further allegations:
    That in June, 1899, the complainant caused to be filed an application for the patent contemplated by the terms of the agreement of February 17, 1899, according to an application of which a copy is attached to the bill as Exhibit 17.

      Note. Said application contains claims numbered from 1 to 17. All except claims 13,14 and 15 are for combinations of parts of a pig handling and breaking apparatus; Nos. 13, 14 and 15 are for described methods of breaking pigs and sows into commercial sized pieces.

    That “contrary to the letter and spirit of the agreement of February 17, 1899, Alexander E. Brown filed an application on or about March 30, 1899, for letters patent for a new and useful improvement in pig breaking apparatus and that on July 4, 1899, there issued to said Brown letters patent 628069 for a new and useful improvement in pig breaking apparatus, wherein and whereby the said Brown claimed as new seven ‘ combinations ’ of parts of a pig handling and breaking apparatus or machine, which are specifically set out in the bill. ’ ’

      Note: The bill states that a certified copy of Brown’s application is attached to the Bill as Exhibit 17, but no such copy appears in the record. Exhibit 17 is a copy of the application of Forster.

      “That the said letters patent issued on July 4, 1899, to said Brown covered the complainant’s invention fqr which he was to secure letters patent contemplated by the agreement aforesaid to such an extent and so completely that when the complainant, acting with all due expedition by his patent attorney, made application for letters patent to cover the ideas of a pig handling and breaking machinery as hereinbefore described, he was completely blocked and prevented from obtaining the letters patent contemplated by said agreement of February 17, 1899, and that in an opinion, a copy of which is attached to and made a part of the bill, the Patent Commissioners stated Claims 7, 8, 9, 10, 11,12, 13,14 and 15 had been met by Brown 628069.”

      Note. The opinion is Exhibit 2 to the bill. The essential part of said opinion of the Examiner is: “The first twelve claims and claims 16 and 17 do not cover combinations. There can be no combination betiveen the pig bed and a crane for carrying castings; a pig bed and a pattern; a pig bed and a pig iron breaker,—a pig bed and a hoisting apparatus, etc.

      Applicant seeks to patent several devices in one application, vis: a conveyor, a hoisting apparatus, a pig breaker, a transfer ledge and a pattern. These devices belong to separate and distinct classes of inventions, and can not be claimed and patented in a single application * * * Division must therefore be required.

      Claims 1, 2, 3 and 4 are anticipated by Kennedy 520685. * * *

      Claims 5 and 6 are anticipated by Kennedy cited when taken with Miller-and George 518416. * * *

      Claims 7, 8, 9, 10, 11, 12, 13, 14 and 15 are met by Brown 628069 (Metal Rolling-Metal Breakers). Claims 16 and 17 are not illustrated. The claims are rejected.’’

    “That with full knowledge of all the facts obtained as an officer of the defendant company and individually, the said Brown used the contract of February 17, 1899, as a cloak behind which to conduct his operations to the injury of the complainant;

      That Brown and one Wing, counsel for the defendant company and its predecessor, conspired in drafting and presenting the claims of Brown to the Patent Office which resulted in Patent 628069, so as to include therein the entire subject matter of the invention and patent contemplated by the agreement of February 17, 1899; and that the claims set out in the Brown patent include in every particular the invention expressed in the contract of February 17, 1899, and exhibited in the machine built under the direction of the complainant by the predecessor company and installed at the plant of the Iroquois Furnace Company;
    That these proceedings were fraudulent and in hostility to the agreement of February 17,1899, and of the conception and claims of the complainant, of which the defendant through its officers and agents had knowledge ;
    That said Brown assigned his right, title and interest to said patent issued to him to the predecessor of the defendant company, but that said predecessor did not manufacture or sell any apparatus covered by said patent;
    That the defendant company succeeded to all the assets of its predecessor, including said patent, and has manufactured and sold a hundred or more of pig breaking apparatus under and by virtue of either the assignment or license from Brown;
    That as shown by the correspondence attached to the bill as exhibits, the predecessor of said defendant company endeavored to intimidate the complainant by efforts to differentiate and distinguish certain points relative to the invention of complainant and that Brown fraudulently and knowingly applied for and obtained a patent covering the matters which it was incumbent on the complainant to apply for and obtain a patent for under the contract—Exhibit 1—and for which he did apply for a patent within the two years mentioned in the contract;
    That the complainant is advised that it is a presumption of patent law that at the time Alexander E. Brown aforesaid applied for the patent which he obtained July 4, 1899, he knew the prior state of the art as applied to cast house mechanism and the invention of the complainant, and by obtaining the patent was the agent of the complainant, and therefore the terms of the contract were satisfied by the complainant through his agent;
    That had Brown obtained patents for certain details to which he claimed the right, there would have remained open to the complainant the opportunity to obtain a patent based on ‘the broad idea’ of combining overhead carriers with hook attachments and a pig breaking machine as contemplated by the agreement of February 17, 1899;
    That under the opinion of the Patent Commissioner it was impracticable to proceed through the channels of the patent office, because it would have necessitated conducting interference proceedings against the persons with whom he was obligated to procure and assign letters patent for an invention which Brown and the predecessor of defendant company had fraudulently obtained a patent for;
    That therefore he refrained at that time from contesting with Brown or said predecessor Company the fraudulent method that had been resorted to in order to prevent the complainant from obtaining the royalties set out in the agreement of February 17, 1899;
    That complainant was advised that by the fraudulent obtaining through its 'officer Brown by the predecessor of the defendant company of a patent covering the complainant’s invention the purpose of the agreement was effected and the complainant became entitled to the benefits;
    That the obtaining of the patent aforesaid by Brown was a breach of the trust and confidence reposed in him by the complainant, by which breach the defendant as assignee by virtue of succession to the Brown Hoisting & Conveying Machine Company should not be permitted to benefit;
    That complainant had been advised that he could avail himself of his riglits under the agreement of February 17,1899, at any time during the life of the patent issued to Brown, and that he had ‘ elected to wait until the number of apparatus manufactured and sold by the defendant company would warrant’ him ‘in undertaking the expense of an equity proceeding, and that reposing every trust and confidence in the courts of his State of residence, he was not in equity bound to jeopardize his rights in either of the States which created the defendant company or its predecessor or wherein its principal place of business was located;’
    That complainant in 1911 wrote to defendant company concerning the number of apparatus that had been manufactured and afterward demanded an accounting for royalties due to him under the patent, and that defendant admitted having all the rights under the Brown patent and admitted the sale and manufacture of apparatus to the number of a hundred, but refused to account to the complainant in any way;
    That Brown conspired with a patent attorney who was general counsel both for the defendant and the predecessor company, to take advantage of the knowledge gained by them in the negotiations which preceded the execution of the contract of February 17, 1899, and eliminate the complainant therefrom.”
    The prayers of the bill are, first, that the defendant be decreed to specifically perform the agreement of February 17, 1899; second, that the defendant be decreed to account for and pay over to the complainant the income or profits or royalties derived by it and its predecessor, the Brown Hoisting & Conveying Machine Company, through a violation of the complainant’s rights under the contract of February 17, 1899; third, that the complainant have any suitable further and other relief.
    The demurrer to this bill, besides the general allegation that the bill is without equity, assigns four causes of demurrer: First, that under the allegations of the bill the complainant has an adequate remedy at law. Second, that the complainant has been guilty of laches. Third, that the Superior Court of Cook county is without jurisdiction to adjudicate the question of the right and title to letters patent issued by the United States Patent Office, such jurisdiction being vested in the courts of the United States. Fourth, that no facts evidencing fraud are alleged in said bill.

      Shepard, McCormick & Thomason, for appellant; Perry S. Patterson, of counsel.
    George C. Wing and Winston, Payne, Strawn & Shaw, for appellee; Walter H. Jacobs, of counsel.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

We think that the chancellor in the Superior Court was right in sustaining the demurrer to the bill in this case. Whatever of merit there can be in the complainant’s case must depend on the proposition maintained by him that the demurrer admits the truth of allegations in the bill to the effect that the invention for which Alexander E. Brown received leters patent on July 4, 1899, was the invention of the complainant and was “contemplated” and “expressed” in the contract of February 17,1899, between the Brown Hoisting* & Conveying* Machine Company, the Iroquois Furnace Company and the complainant; that Brown applied for a patent covering said invention, asserting it to be his own, in order to defraud the complainant, and that this was admitted and acknowledged by Brown and the predecessor Company, to whose rights and obligations the defendant has succeeded. This acknowledgment is said by the bill to be shown by the correspondence which passed between the complainant and Brown and other officers of the Brown Hoisting & Conveying Machine Company and which appears in Exhibits 3 to 17 “made apart of the bill.”

But the correspondence thus incorporated in the bill does not bear out the allegations of the bill. Making the purport of the correspondence itself, rather than the construction placed on it by the phrasing of the bill, the test of what is admitted by the defendant’s demurrer, we cannot hold that the defendant stands here as admitting* now or having* admitted through its officers or its predecessor in the past that the patented device of Brown was not his own invention or was the invention of Forster or was “contemplated” or “expressed” by the agreement of February 17, 1899. On the contrary, we find about two weeks after the agreement, the Brown Hoisting & Conveying Machine Company making a distinction between the “patents covering as broad a claim as possible, which will also include your method of moulding and casting” and the patents which it notifies Forster “our Mr. A. E. Brown also proposes to take out.” “It is his intention” the Company says, “to take out such patents as were invented and perfected by him and he will at once apply for a patent covering the method of holding the pigs and sow with details pertaining to same.” This is all said with reference to the apparatus at the works of the Iroquois Furnace Company. A few days later, March 10,1899, the Company writes to Mr. Forster:

“The matter of taking out the patent is entirely optional with you, the agreement merely being that we shall pay the expenses in case you decide to apply for the patent. This agreement covers the broad claim as stated and had no reference to any details which you yourself might also claim to have invented. We understood that the broad combination referred to in the agreement was for the use of carriers generally in conjunction with breakers generally, you having asserted at the time that you yourself had conceived the broad idea of thus combining two separate pieces of machinery for use in cast houses for the purpose. How such a combination was to be worked out, the details of making it operative, we did not understand you made any claim to have invented. Without ourselves being sufficiently informed to be able to decide as between you and Mr. Brown in respect to the inventions involved in the machinery referred to, we made the agreement to depend, in the first instance, surely, upon the fact of your ability to obtain a United States patent for the broad invention as above defined.
Replying to the second paragraph of your letter, we have again to say that it is our understanding that the question is not what we wish you to do, but what you may yourself decide to do in the'premises, and further we think it lies with us alone to decide with respect to taking out any and all patents covering inventions by Mr. Brown in the connection. This part was left entirely optional with us, but after we returned home and after taking the matter up with Mr. Brown we concluded that the points mentioned in our letter of 6th instant ought to be covered and at once, and we therefore started on our application and duly notified you, which we considered proper.”

We think nothing could be clearer than the repudiation by this letter of any acknowledgment that the proposed application of Brown covered anything that Forster had invented or that was “contemplated” in the agreement of February 17th, or that in any sense Brown would be the “agent” of Forster in securing any expected patent.

It will be noted also that the construction placed on the agreement was thus early a matter of. difference between the parties to it: This difference still continues, as appears from a comparison of the bill with this correspondence, for the bill alleges that by said agreement it was provided that the complainant “should obtain United States letters patent on any invention by him which broadly covered the combination” existing in certain pig handling and breaking machinery; and that the complainant “was to obtain” these letters patent within two years and “was to assign” them to the Company, on which assignment the Company was to pay the complainant certain sums; and that it was “pursuant to the terms of said agreement” that the complainant made his application for letters patent. But the claim of the defendant in the correspondence—a claim which is certainly borne out by the terms of the agreement, which is also by reference and annexation a part of the bill—is that the agreement was that if, and only if, Forster should within two years obtain letters patent on any invention by him which broadly covered the combination embraced in the pig handling and breaking machinery as then constructed at the Iroquois Furnace Company plant, then the Conveying Company would pay Forster the expense of taking out the patent, Forster should on his part assign the letters patent to the Conveying Company, and the Conveying Company pay Forster a large royalty on each and every pig handling and breaking machine built by the Hoisting Company under such assigned patents.

This difference is very vital. The case made by the bill and the exhibits taken together, which is admitted by the demurrer, is different from that which would be made were the allegations of the bill purporting to give the effect of the contract and correspondence to be considered by themselves.

It is entirely consistent with the theory that the predecessor company of the defendant had constructed according to plans and instructions of both Forster and Brown, peculiarly arranged machinery, that it was without knowledge whether Brown, one of its officers, or Forster, was entitled and able to procure patents on the whole or any part of the same, or how far the claims of one would interfere with those of the other, that it wished to forestall the possibility of any outside interest being able to duplicate the machinery as it had been constructed, that Forster claimed the invention of the underlying and broad idea of a combination of certain devices in the matter, and that the Company was unable or unwilling to assert that such a combination was unpatentable or had been anticipated by Brown or otherwise, and equally unable and unwilling to assert that it was patentable or was not anticipated by Brown or others; that therefore it made an agreement which provided that if Forster should succeed in his contention he would deal with them and no one else. In this view, the contract was to tie Forster to a certain course in a certain contingency which might or might not arise, and in the happening of which the Company had no favorable interest. Nothing can be properly predicated as to the admission claimed on the use of the words “your scheme” and “your problems” and “your plans” in letters written four years before in relation to a plant of the complainant’s Company not fully installed until the end of those four years. In this view, the bill is properly demurrable, as it seems to us, for a general want of equity.

Its prayer is solely based on the contract, but nothing ever became due to the complainant under the contract because the basic and primary condition of it had never taken place. The contract was not that Forster should obtain letters patent, assign them and receive a royalty, but that if he did obtain them within two years that he should assign them in consideration of a royalty. He did not obtain them and consequently did not assign them and is entitled to no royalty. Nor can there be any such position successfully maintained in this view as that Brown was the agent of Forster in obtaining his patent, or that the contract is in effect already carried out in everything but the payment of royalties.

Of course under this view it is still possible to contend that the Examiner of the Patent Office was wrong in refusing a patent to Forster on his application, or that the Patent Office was wrong in granting a patent to Brown as the first inventor of the devices patented by him.

But these contentions pertain to a controversy between Forster and Brown, or Brown’s assignees, which is not within the jurisdiction of other than Federal Courts. They arise under the patent-right laws of the United States. The complainant did not pursue the course marked out by the law for him to test the accuracy of the Examiner’s report on his application, or the decision of the Patent Office on Brown’s application.

It may be noted that the bill with its exhibits taken together does not bear out the implication of the body of the bill separately, that the claims allowed by the Patent Office in the Brown application were clearly substantially identical with those disallowed in the Forster application; nor does the Examiner’s report on the Forster application place the rejection altogether on anticipation by Brown.

Of the seventeen claims of Forster nine only are said to have been anticipated in the Brown patent, and of these nine six were rejected for reasons additional to their being anticipated. The three remaining ones were not for “combinations” but “methods.”

The contract made the obligations of the Hoisting Company dependent on the obtaining by Forster of a patent broadly covering “a combination.”

The claims of “combinations” in his application were declared by the Examiner not to be for combinations, but to show that the applicant was endeavoring to patent separate inventions on a single application, which could not legally be done.

If Forster disputed the decision of the Examiner on his application he could have a rehearing and if the rejection was repeated could appeal through two tribunals in the Patent Office to a final adjudication by Federal Courts. If he disputed the validity of Brown’s patent on the ground that he and not Brown was the inventor of the combinations therein described which the Examiner reported anticipated his claims, he had a similar recourse to higher authority in the Patent Office and, in the case of adverse decisions there, to the courts.

He took no such action, but remained entirely inactive in the matter for about twelve years, when, in apparent preparation for a bill which he did not file until after twelve years had passed since Brown’s patent had issued and his own application had been denied, he asked information from the defendant Company as to the amount of machinery it had manufactured under the Brown patent.

Before the amended bill was filed Brown had died. From the phrasing of the allegations of the amended bill we may suppose that he died even before the original bill was filed on August 16, 1911.

The absence of any intention on the part of the complainant to await the death of an important witness may be conceded—indeed, it is admitted by the demurrer; but this is immaterial. The relevant matter is that the result of the long waiting on the part of the complainant was that when the bill was brought the witness was dead. This fact itself is relevant only as making apparent the fact that the twelve years that had intervened since action could have been taken by the complainant in support of his contentions had brought about a material change in conditions to the disadvantage of the defendant Company in its defense. Laches was, we think, imputable to the complainant, and that laches would have been injurious to' the position of the defendant even if the theory of the complainant’s bill had been well founded.

The well recognized authority for the doctrine that a foreign corporation without license from the State cannot, because it is nonresident, avail itself of a statute of limitations which does not run while a defendant is nonresident, is not in point.

Laches may sometimes be used as a defense when the statute is unavailable. In Gibbons v. Hoag, 95 Ill. 45, and Hubbard v. U. S. Mortgage Co., 14 Ill. App. 40, cited by the complainant, the distinction is clearly noted.

In this last case the Court says:

“Mere laches alone, short of the period fixed by the statute of limitations as a bar, will not preclude the assertion of an equitable right, where the adverse party is not lulled into1 security by the delay or prejudiced thereby. Nothing appears showing that the defendant was or could have been prejudiced by the delay,- and laches, therefore, cannot be interposed as a defense.”

In the case at bar the reverse of this condition, as we think, is true. When the bill was filed the defendant Company had constructed many costly machines and it had been deprived of a most material factor in its possible defense.

Our conclusion is that the bill is without equity, that the real contentions of the complainant shown by the bill and exhibit are not within the jurisdiction of the Superior Court of Cook county, and that the complainant has been guilty of laches in bringing them forward.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Calumet Trust & Savings Bank, Appellee, v. Lloyd S. Bailey, Appellant.
    Gen. No. 18,851.
    Bills and notes, § 272

      —when judgment against indorser cannot he sustained. In an action by the transferee of a negotiable note against the payee thereof, the defendant’s liability being that of an indorser, a judgment against him cannot be sustained where there was no evidence of either presentment to the maker or notice of dishonor to defendant.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Lloyd S. Bailey, pro se; Judd B. Light, of counsel.
    Henry R. Baldwin, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.

The judgment in this case must be reversed and the cause remanded. '

The appellant Bailey (defendant below) was the payee and indorser of a negotiable promissory note foi $262.83, assigned by him for value to the plaintiff. It was dated July 14, 1910, and payable October 1, 1910, at Morgan Park, Illinois, with interest at the rate of six per cent, after date. It was signed by E. P. Cad-well and Ellen Cadwell. By the sale of some collateral deposited with the note and presumably sold according to the terms of an agreement inserted in the note, $60 was paid on it October 18, 1910. The remainder is supposed to be represented by the judgment here appealed from of $227.07 against the defendant Bailey. This judgment was rendered on the verdict of a jury in the Circuit Court, to which Bailey had appealed from a judgment by a justice of the peace against him and Ellen Cadwell jointly for $200 and costs.

The rights and obligations of the parties to this note were determined by the “Act in regard to Negotiable Instruments payable in money,” approved June 5, 3907.

The obligations of Bailey were those of an indorser. The indorser is liable to the holder—except in circumstances specified in the act, which do not affect this case—only in case presentment has been made in proper time and at the proper place to the maker, and notice of dishonor given to the indorser within the time specified in the act. There was no evidence of either presentment to makers or notice to indorser offered in this case. We are not deciding here in what form presentment of this note had to be made, or where. As we have said, no evidence of any attempt at any kind of presentment to the makers anywhere was offered nor any evidence of any notice of dishonor to the indorser before the suit was brought. Certain statements were made by counsel for the plaintiff touching on them, which were not, however, admitted by the defendant.

There was consequently no evidence to fix liability on the defendant. A judgment against a person in no way connected with the paper would have been just as well justified by this record. Therefore it is not necessary to enter into the questions mooted between the parties concerning the jurisdiction of the Circuit Court in the appeal from a justice at the time of the judgment, nor concerning the technical obligation of the court to give the instructions asked at the time they were asked.

The motion reserved to the hearing to strike from the files the supplemental record filed by the appellee April 28, 1913, is denied.

The verdict was against the law and the evidence, and should have been set aside and a new trial granted on the motion to that effect.

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

Reversed and remanded.


text:
    John Cervenka, Appellee, v. Edward R. Hunter and Jennie Hunter, Appellants.
    Gen. No. 18,890.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1912.
    Remanded with directions.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Judgment by confession was recovered by John Cervenka against Edward E. Hunter and Jennie Hunter on a judgment note for two hundred and fifteen dollars attorney’s fees given by the latter to plaintiff. The judgment was entered August 3, 1911, and on August 8th leave was given defendants to plead to the declaration, the judgment to stand as security. At the conclusion of the trial the court directed the jury to find a verdict for plaintiff and to assess Ms damages at two hundred and fifteen dollars, and February 24,1912, the court entered judgment that plaintiff have and recover of the defendants two hundred and fifteen dollars and his costs. From this judgment, defendants appeal.
    Abstract of the Decision.
    1. Judgment, § 87

      —when entry of separate judgment after opening judgment 6y confession erroneous. Where a judgment by confession was, on motion, opened and defendant ordered to plead to the declaration, the judgment to stand as security, and a trial resulted in a verdict for plaintiff, the judgment should direct that the previous judgment continue in full force and effect, and the entry of a separate and independent judgment is erroneous.
    2. Appeal and error, § 1803

      —when cause remanded for correction of judgment. Where a judgment by confession was opened and ordered to stand as security, and a trial resulted in a verdict for plaintiff on which a separate and independent judgment was entered, the entering of such judgment while the previous judgment was still of record constitutes ground for the remand of the cause to the court below for correction, but not for a new trial.
    3. Appeal and error, § 207

      —when cause not reversed for giving of peremptory instruction orally. A cause will not be reversed for the giving of a peremptory instruction orally where the objection that the instruction was not in writing was not included in the grounds for a written motion for a new trial, nor in the assignment of errors.
    4. Appeal and error, § 1526

      —when oral peremptory instruction harmless. The giving of a peremptory instruction orally is not ground for reversal where under the evidence no other verdict could properly have been returned.
    5. Brokers, § 71

      —when failure to procure license not a defense to action on note for commissions. The fact that plaintiff, a broker, was not licensed, as required by the Chicago ordinances, is not a defense to an action on a note given for commissions in negotiating an exchange where the employment was in Wisconsin, the note given there and defendant’s property situated in that State, though the property for which it was exchanged was situated in Chicago and the conveyances in exchange made in that city.

      Lavern W. Thompson, for appellants.
    Sabath, Levinson & Stafford, for appellee.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

6. Bbokebs, § 84 —what evidence inadmissible in action for com- $ missions. In an action on a note given to a broker for commissions in negotiating an exchange of property, evidence of the rentals of the property acquired by defendant on the exchange is immaterial.


text:
    National Brewing Company, Appellant, v. Peter P. Guminski and Mary Guminski, Appellees.
    Gen. No. 18,906.
    (Not to toe reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by National Brewing Company against Peter P. Guminski and Mary Guminski on a promissory note, after the plaintiff had recovered a judgment by confession evidenced by a cognovit executed by an attorney under a warrant of attorney in the note, and after the court on motion of the defendants had granted them leave to plead to the merits. Subsequent to the entry of the judgment by confession, on motion of the defendants, the judgment was set aside and vacated and leave given to the defendants to plead in five days. On the next day the order vacating the judgment was set aside, but leave was given to the defendants to plead*“as to the merits” within five days, the judgment entered by confession ordered “to stand as security.” Defendants filed pleas setting up payment and accord and satisfaction. The trial was by the court without a jury and the court found the issues for the defendants and entered judgment vacating the judgment entered by confession and adjudging the plaintiff to pay the costs of the suit. To reverse the judgment, plaintiff appeals.
    Abstract of the Decision.
    1. Appeal and ebrob, § 1197

      —when orders to be reviewed limited by recitals in appeal bond. On appeal from a judgment vacating a judgment rendered by confession and adjudging the plaintiff to pay costs, held that the portion of the judgment which vacates the confessed judgment would not be reversed where the appeal bond recites the judgment appealed from merely as a judgment against the plaintiff “for the sum of- dollars, costs of suit.”
    2. Appeal and ebbob, § 288

      —when judgment for costs is a final judgment. A judgment against plaintiff for costs may be considered a final judgment where it follows in the order a finding of the issues for the defendant.
    3. Judgment, § 78

      —when orders relating to vacation of judgment by confession discretionary. Where a court vacated a judgment entered by confession and granted defendants leave to plead, and later set aside the order vacating the judgment and granted leave to plead with the judgment to stand as security, and subsequently by an interlocutory order again vacates the original judgment, held that the orders were discretionary.
    4. Bills and notes, § 451

      —when defense of satisfaction and discharge not established by the evidence. In an action by a Brewing Company on a promissory note executed to the company by the defendants, a defense of payment and accord and satisfaction alleging that a certain right or privilege to the renewal of a saloon license which was the property of the defendants was accepted by the plaintiff in satisfaction and discharge of the note, heldénot established by the evidence.
    5. Evidence, § 10

      —judicial notice. of ordinances. Ordinances of the city of Chicago are not the subject of judicial notice in the Superior Court of Cook county or in the Appellate Court.
    Matthias B. Pittman, for appellant.
    Kruse & Peden and E. C. Merrick, for appellees.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    H. G. Tyner, Appellee, v. Neal Institutes Company (of U. S.) and James E. Bruce, Appellants.
    Gen. No. 18,954.
    1. Judgment, § 78

      —when motion to open judgment is addressed to the discretion of the court. When a motion is made after a judgment has been confessed under a warrant of attorney in a court of record by an attorney of that court, a motion to set aside or to open it so as to allow the defendant to plead is addressed to the discretion and the equitable power's of the court.
    2. Judgment, § 82

      —when allegations in support of motion to open judgment hy confession insufficient. Affidavits in support of motion to open a judgment entered by a confession on promissory notes, alleging that the notes were executed in a certain settlement upon false representation as to the facts, held not to state a case on the merits to open the judgment, the allegations being based on hearsay and the allegations of fraud being too general, and there being no contradiction of certain facts stated in a counter-affidavit.
    3. Appeal and error, § 810

      —what should appear in hill of exceptions. On appeal from an order denying defendant’s motion to open up a judgment entered by confession on promissory notes, held that the notes, warrants of attorney, statement of claim and affidavits were improperly in the transcript of the record and not in the bill of exceptions where alone they properly belong.
    4. Appeal and error, § 805

      —when rule that hill of exceptions will he regarded as containing all the evidence, inapplicahle. A bill of exceptions not certifying that it contains all the evidence, held not to be in such form nor so arranged as to come within the rule that where it otherwise appears than from the certificate that the bill of exceptions actually contains all the evidence it will be considered to do so, though there is no certificate to that effect.
    5. Appeal and error, § 495

      —when objection to counter-affidavits on motion to open judgment not preserved. Where no objection was made in the court below to counter-affidavits presented by plaintiff on motion of defendant to open up a judgment by confession, such objection comes too late on appeal.
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.

      Enos W. Shaw and Charles Center Case, Jr., for appellants.
    Clark & Clark, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.

December 4, 1911, the plaintiff below and appellee in this court, H. Gr. Tyner, recovered a judgment in the Municipal Court of Chicago against the defendant and appellant corporation, Neal Institutes Company, and James E. Bruce for $2,162.60. The plaintiff had theretofore filed a statement of claim in the proper form under the Municipal Court practice on two promissory notes, together with an affidavit of the execution by the defendants of the said two notes and of the warrants of attorney incorporated in them to any attorney of any court of record to confess judgment on them. An attorney of the court, under the authority of said warrants of attorney, filed a cognovit and the judgment above described was entered.

December 21, 1911, the defendants moved that the judgment of December 4, 1911, be vacated and set aside. February 3, 1912, the said motion was, after a hearing on affidavits and counter-affidavits, denied; whereupon, as the record states, “an appeal of this cause” was prayed and granted to this court. The appeal bond filed in the cause recites the appeal to be “from the ruling of said” (Municipal) “Court on motion to set aside” the judgment described.

Nineteen assignments of error are appended to the transcript of the record. But the points insisted on in argument are but four:

That the warrants of attorney did not contain authority to confess judgment for both or either of the defendants.

. That the proof of the execution of the warrants of attorney was insufficient to justify the entry of judgment under the cognovit.

That in the hearing of the motion to “vacate and set aside” the judgment, as the common-law record recites it, or “to set aside said judgment and that an order be made allowing the defendants to plead and make defense to said notes,” as the bill of exceptions states it, the court erred in considering certain affidavits presented by the plaintiff, said affidavits not showing that they were properly sworn and being in any event incompetent and improper to be considered on this motion.

That even with all the affidavits offered at the hearing of the motion considered, a shewing of defense was made which made it the duty of the court to open up the judgment and let the issue be tried by a jury.

It is well settled in this State that when a motion is made after a judgment has been confessed under a warrant of attorney in a court of record by an attorney of that court, a motion to set it aside or to open it so as to allow the defendant to plead is addressed to the discretion and the equitable powers of the court.

“On a motion to vacate a judgment, confessed by authority, and for leave to plead, the question is not whether the judgment should be set aside because of errors of law, but whether there exists any equitable reason for opening the judgment to let in a defense,” is the language of the Court in Moyses v. Schendorf, 238 Ill. 232.

It is not therefore necessary for us to dwell on the arguments pressed by the appellants in this appeal, as to the insufficiency of the proof of the signatures to the warrant of attorney under which the judgment was confessed, or the use of counter-affidavits on hearing of the motion to vacate, or whether there was implied power in the officers of the Neal Institutes Company (of IT. S.) to execute the warrant of attorney annexed to the notes sued on, or whether the jurats attached to the counter-affidavits offered for the appellee were so defective as to have properly barred them out on the hearing. We shall chiefly confine ourselves to a consideration of whether the defendants made by their affidavits such a case as made it an abuse of the certain amount of discretion which an appeal to the equitable powers of the court in a case like this necessarily involves, to deny a motion which the common-law record recites as a motion “to vacate the judgment,” but which the bill of exceptions, which perhaps must govern, declares to include the less definitive one of opening the matter to allow pleading and defense in regular course.

But before thus proceeding to the merits of the controversy described in the' affidavits, it should be noted, we think, that there are insuperable technical difficulties in the-way of upholding the appellants’ contentions before described, even did we deem a decision of them more material.

The bill of exceptions, which at best is in an irregular form, does not certify that it contains all the evidence, and it is not in such form nor so arranged that it comes within the rule frequently recognized by us, that where it otherwise appears than from the certificate that the bill of exceptions actually contains all the evidence, it will be considered to do so, even though there is no certificate to that effect. Indeed, in the present case, neither the notes with the warrants of attorney incorporated therein, nor the proof of execution and genuineness on which it is maintained that the plaintiffs alone relied in securing the judgment, are in the record at all where we can properly and technically take notice of them and judge from them what proof was made. Two notes with warrants of attorney, answering to the description of the notes in a “ statement of claim” filed in the Municipal Court, are bound into the transcript of the record and there is also annexed to the said “statement of claim” a document entitled “Affidavit of Execution of note and of Plaintiffs’ Claim.” The notes and warrants of attorney, together with the “statement of claim” and affidavit, etc. (as above described), follow the assertion in the transcript that “on the 4th day of December, A. D. 1911, a certain statement and affidavit of claim was filed in the office of the Clerk of said Municipal Court in words and figures following”; but they do not appear in the bill of exceptions, where alone they properly belong. See Magher v. Howe, 12 Ill. 379, where the transcript of the record was made up as the one at bar is.

There is, as the bill of exceptions stands, no proof or certificate before us that there was not other evidence justifying the entry of the judgment by confession of an attorney of record besides the warrants and affidavits which we find annexed to the common-law record. As to the use of counter-affidavits, no objection so far as appears was made below, either to the use of those that plaintiffs presented either on general principles or on account of special objections to the jurat. The bill of exceptions says that the court “by agreement to permit plaintiff to file counter affidavits,” set the case down for hearing on a day subsequent to the filing of the defendant’s motion and its supporting affidavit. It is now too late to raise these objections. Washington v. Louisville & N. Ry. Co., 136 Ill. 49, p. 55.

Objections to the sufficiency of the form of the warrant of attorney are met by the reasoning of the opinion of the Branch Appellate Court of this District in Barron v. Kimball, 124 Ill. App. 268. And the want of proof of authority on the part of the treasurer of the Neal Institutes Company to execute the warrants of attorney (there being no evidence of such lack of authority) would not, even if those warrants were properly before us, be fatal to the validity of the judgment according to the rule laid down in Snyder Bros. v. Bailey, 165 Ill. 447.

We do not purpose to discuss the doubtful question raised by the appellants whether, under the Negotiable Instrument Act, the burden would be on the plaintiff to prove that he was “a holder in due course” of the notes sued on, if a defense were shown to exist between the payee and the maker based on false statements as to collateral matters inducing the maker to execute the instrument, and not on false statements as to the nature of the instrument he was induced to execute; in other words, whether the words in the 59th section of the act, “that the title of any person who has negotiated the instrument was defective,” are tantamount to the words “that there was a defense between the maker and the person who has negotiated the instrument.” We do not need to do so, for on the assumptions (made only for the purposes of this discussion) that the burden is thus on the holder and that in this case the affidavits heard on the motion make such a prima facie or doubtful case on the question of whether the plaintiff is a holder in due course, as to render proper and desirable its submission to a jury, if the continued existence of the judgment ought to depend upon it, we are nevertheless of the opinion that no sufficient case was made on the merits for the vacation or opening of the judgment. This is because of the nature of the affidavits offered in support of the motion and shown in the bill of exceptions, so far as they pertain to the defense claimed by the defendants against the original payee of the notes. Such a defense is not sufficiently made out.

The bill of exceptions is a peculiar document. It begins by saying that the defendants “complain as .follows:” Of course nothing which is a mere “complaint” of the defendants would be material. There are annexed, however, as “exhibits” to the bill of exceptions certain affidavits, which we will assume the certificate of the judge to the bill of exceptions, which is thus recited to be “a complaint,” identifies as offered in support of the motion to vacate and as a part of the bill of exceptions.

On the point in hand there are but two of these— one of J. A. Campbell, the general attorney for the defendants, and the other of the defendant Bruce. The substance of them both is that the payee of the notes received them from the makers in a settlement of business between himself and those makers relating to a purchase of a “Neal Institute” at Los Angeles, made from the defendants by the payee, and afterwards, as a matter of fact, rescinded, revoked, annulled or abrogated (the particular word is not material and the words are not here used technically) by agreement of the parties to it, and that the affiants believe that the said payee, one C. H. Carleton, lied to the defendant and affiant Bruce, who conducted the business for himself and the other defendant, to secure said settlement, and that in consequence the defendants would have a good defense to said notes in said Carleton’s hands. The particular lie or misrepresentation is said to be that one Soper, who was an agent for said Bruce, had, before sailing for Australia shortly before the making of the notes, agreed that the settlement in question should be made. Bruce’s affidavit says that he employed another agent, one Collins, to investigate the matter and on his report that he believed the arrangement had been made, executed the notes in settlement, but that on Soper’s return from Australia he “learned from him what he believed to be the true facts, ’ ’ namely, that Soper had not made the arrangement attributed to him. This certainly is hearsay—quite as much so as the contents of the affidavits involved in Moyses v. Schendorf, 142 Ill. App. 293, affirmed in 238 Ill. 232, which affidavits on that account the Appellate Court and the Supreme Court found furnished no sufficient ground for vacating a judgment by confession. In our opinion there was no greater reason in this case than there was in that to open the judgment. The allegations of. fraud are as general and the evidence offered as unsatisfactory.

It is worthy of note that although the fraudulent, representations were alleged to be of what Soper had said to Carleton and had been made to Collins as well as to Bruce, neither the affidavit of Soper nor of Collins was offered to show either by direct testimony what Soper had said, or on what Collins founded the report which led to the settlement.

It perhaps also may well be noted that the counter-affidavit of Carleton among other things stated a fact of which no contradiction was made—that prior to the date of the notes the defendants had resumed possession and full charge and management of the Institute involved.

We do not think the action of the court below was unjustified, and its order appealed from is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    United States Cast Iron Pipe & Foundry Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,874.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Rehearing denied and additional opinion filed April 13. 1914.
    Statement of the Case.
    Action by Unitéd States Cast Iron Pipe and Foundry Company, a corporation, against the City of Chicago to recover certain amounts which plaintiff claims that the defendant wrongfully deducted from what was due it for pipe sold and delivered by the plaintiff to the defendant under five written contracts. The defendant claimed the right to the deductions under a provision in the contracts whereby defendant was to be entitled to deduct and retain the sum of fifteen dollars as liquidated damages for each day’s delay in making the deliveries and performing the contract. Upon trial by the court, plaintiff recovered judgment for the amount of the deductions, and defendant appeals.
    Abstract of the Decision.
    1. Evidence, § 46*—burden of proof. The burden of proof is upon the party asserting the affirmative of a proposition.
    2. Damages, § 170*—burden of proof. In an action to recover amounts alleged to have been wrongfully deducted by defendant under provision in contract allowing a deduction of fifteen dollars for each day of delay in performing the contracts as liquidated damages, held that the burden was upon the plaintiff to prove performance of the contract and to prove that the deductions were wrongfully made.
    3. Damages, § 88*—when provision in contract is for liquidated damages. A provision in contracts for the deduction of fifteen dollars a day for delay in performance, the language expressly stating that such sum shall be treated as liquidated damages suffered and not by way of a penalty, construed as a provision for unliquidated damages and not as a penalty, and held that the amount agreed upon was not unreasonable.
    William H. Sexton, for appellant; Nicholas Michels, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; Ralph M. Shaw and Walter H. Jacobs, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Wladyslaw Czecziotka v. Hammond Glue Company et al. On Appeal of Hammond Glue Company, Appellant, v. Frank Comerford and Seymour N. Cohen, Appellees.
    Gen. No. 18,886.
    1. Attorney and client, § 146

      —when attorney entitled to lien on settlement with client. Where under a contract of employment with attorneys the client agreed “to allow them to retain out of any amounts collected for me on account of such claim one-half of whatever sums shall be received,” and the client without the knowledge of his attorneys settled his claim, the attorneys are entitled to a lien against the person so settling withx the client under Hurd’s R. S. ch. 82, J. & A. If 611, for only half the amount so paid to the client, and a judgment allowing them an amount equal to the amount so paid is erroneous. Sutton v. Chicago Rys. Co., 258 Ill. 551, distinguished.

    2. Attorney and client, § 120

      —when contract not invalid lie-cause of invalidity of clause. A contract between attorney and client containing a clause forbidding the client to settle without the attorney’s consent is not invalid in its entirety because of the invalidity of such clause, same being severable.
    3. Attorney and client, § 150

      —lohen party cannot complain that judgment was not rendered against codefendant in proceedsing to enforce lien. In a proceeding to enforce an attorneys’ lien under Hurd’s R. S. ch. 82, J. & A. f 611, arising out of a contract under which the attorneys were to receive half the amount recovered in a suit against three defendants, one of whom, without the knowledge of its codefendants or the plaintiff’s attorneys, settled with the plaintiff, such defendant cannot complain that judgment should have been rendered against its codefendants also, on the ground that they accepted the benefits of the voluntary act of such ■defendant and paid their proportionate share of the settlement on learning of same.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed March 30, 1914.
    John Clark Baker, for appellant Hammond G-lne Company.
    Comereord & Cohen, pro se.

      Sev lUinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a claim for attorneys’ lien, under the statute creating such a lien, chapter 82, Hurd’s Rev. St. 1911 (J. & A. H 611).

By the contract of employment of the attorneys the client agreed “to allow them to retain out of any amounts collected for me on account of such claim one-half (%) of whatever sums shall be received.” In the absence of his attorneys and without their knowledge the client settled his claim for three hundred dollars, which amount he received. Upon filing their petition cláiming a lien under their contract, and after hearing by the court, the attorneys had judgment against the appellant, Hammond Glue Company, for three hundred dollars.

It is urged that this amount is too large; that under their contract of employment the attorneys were to be paid only one-half of whatever the plaintiff might receive, and as he received only three hundred dollars the attorneys are entitled to only one-half of this amount, or one hundred and fifty dollars. We think this contention is correct and that the attorneys are entitled not to three hundred dollars but to one hundred and fifty dollars. We do not consider the decision in Sutton v. Chicago Rys. Co., 258 Ill. 551, as applicable to this case. In the SuttorfG&se the defendant in making the settlement with the plaintiff-client agreed as part of that settlement to pay the attorney of the plaintiff whatever he might be entitled to under his contract with the plaintiff. That contract was for one-half of any amount received from the defendant, and it was held that the amount of the settlement was the sum paid the plaintiff plus an equal amount to be paid by the defendant to the attorney. This was the holding under similar facts in. Crosby & Fordyce v. Hatch, 155 Iowa 312, and Whitecotton v. St. Louis & H. Ry. Co., 250 Mo. 624. However, in the case before us there was no agreement by appellant to pay plaintiff’s attorney. The amount of the settlement was three hundred dollars, and this amount was received by the plaintiff, and upon this the attorneys had a lien for one-half by virtue of their contract with their client. If the client performed his agreement he would pay the attorneys one hundred and fifty dollars, and their lien would be satisfied. This the client failed to do, whereupon the appellant, having paid the plaintiff with notice of the attorneys’ claim and under peril of plaintiff’s possible default, became impressed by the statute with the liability of plaintiff to his attorneys, but obviously for-no larger amount.

In the opinion in Standidge v. Chicago Rys. Co. 254 Ill. 524, upholding the constitutionality of the Attorneys’ Lien Act and discussing various questions arising thereunder, the Court said: “Under the statute a party, in settling with an attorney’s client, must take into account his liability to the attorney for whatever amount of fees would accrue under his contract at the time of the settlement.” At the time of the settlement in question the amount of fees accruing to the attorneys was one hundred and fifty dollars, and appellant is liable for that amount. This conclusion is in accord with Baker v. Baker, 258 Ill. 418, where it is said: “By serving the notice claiming a lien the attorney in effect becomes a joint claimant with his client in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and to the extent of the amount of his fee has the same interest in such proceeds, judgment or decree as his client and is entitled to his pro rata share thereof. ’ ’

Appellant also claims that the entire contract between the attorneys and their client is void because it contains an illegal clause forbidding the client to set-, tie without the attorneys’ consent. This illegal clause is clearly severable from the remainder of the contract, and hence the legal part of the contract will stand. Corcoran v. Lehigh & Franklin Coal Co., 138 Ill. 390.

The original suit was brought against the Hammond Glue Company, the appellant, the American Fertilizer Company and the Indiana Harbor Belt Railroad Company. The settlement of the case and the payment of the money to plaintiff were made by the appellant, the Hammond Glue Company. The Indiana Harbor Belt Railroad Company avers in its answer that this settlement was made without its knowledge or consent, that it took no part in the same, had no negotiations whatever with the plaintiff or his representatives, and gave no one any authority to act for it in any settlement with plaintiff or anyone else, and had no knowledge that a settlement had been effected until several days thereafter; that on hearing of this it voluntarily paid to the representative of the Hammond Glue Company and the American Fertilizer Company one hundred dollars. The evidence seems to support these averments, and we can see no merit in appellant’s contention that judgment should have been entered against the Belt Bailroad Company. The fact that it received and accepted benefit from the voluntary act of appellant cannot make it liable in this proceeding.

As the error in the judgment affects only the amount, judgment will be entered here against the appellant for one hundred and fifty dollars, costs here to be paid by appellees.

Reversed and judgment here.


author: Mr. Justice' MoSurely

text:
    William Yanloniz, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 18,928.
    1. Mines and minerals, § 163

      —when testimony of demand for props from driver inadmissible. In an action against a mining company for injuries sustained by a miner through the alleged negligence of the mine manager in failing to provide props, permitting plaintiff to testify that he made a demand for props of the driver of coal cars, without establishing a custom of permitting demands for props to be made upon drivers, held error.
    2. Instructions, § 89

      —when instructions ignoring number of witnesses in determining preponderance of the evidence misleading. The giving of instructions on the preponderance of the evidence stating that by a preponderance of the evidence is not necessarily meant the greater number of witnesses and telling the jury what they may consider in determining such preponderance but omitting the number of the witnesses as an element to be considered, held reversible error in a case in which the number of the witnesses was an important factor.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Mastín & Sherlock, for appellant; Frank Ceozier, of counsel.
    Elm:er & Cohen, for appellee.

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

   Mr. Justice' MoSurely

delivered the opinion of the court.

This is an appeal from a judgment had by plaintiff in a suit to recover damages for personal injuries received by him while working as an employe for the defendant.

As we have concluded that there should be another trial, we shall not narrate the testimony at any length. Defendant was engaged in mining coal, and plaintiff was working in the mines, where he was injured by the falling upon him of some coal or rock, or both. In his declaration he alleges a violation of the mining statute, chapter 93, sec. 16, Hurd’s St. 1909 (J. & A. 7494). This statute is as follows:

“The Mine Manager * * * shall always pro-° vide a sufficient supply of props, caps and timber delivered on the miners’ cars at the usual place when demanded, as nearly as possible, in suitable lengths and dimensions for the securing of the roof by the miners, and it shall be the duty of the miner to properly prop and secure his place with materials provided therefor. ’ ’

Plaintiff alleges in his declaration that he demanded such props, but that the mine manager failed, neglected and refused to provide a sufficient supply of props, and that by reason of such violation of the statute, while plaintiff was working as a miner and because of the absence of such props, plaintiff was crushed by a fall of rock, slate, coal, etc.

The evidence shows that the vein of coal where plaintiff was working was about three and one-half feet thick and lay between fire clay below and rock above. This clay runs ordinarily from six to ten inches in thickness and lies over a ledge of rock. In mining, the clay is dug from under the coal for a distance of about three feet. The evidence indicates that if this coal is not supported it sometimes falls. To keep the coal from falling until the miner has finished undercutting, he cuts a niche in the coal and braces it with a “sprag” or short prop. At the proper time he removes this, and if the coal does not fall of its own weight he wedges it down. Sometimes the coal breaks below the niche holding the prop. This layer of coal below the niche is called “bottom” coal.

It is claimed by the defendant that the preponderance of the evidence shows that plaintiff was injured by a fall of this “bottom” coal and not by a fall of the roof. If this is true there can be no recovery, for the statute which is alleged to have been violated contemplates props “for the securing of the roof” so as to prevent its falling, and manifestly not for the purpose of preventing the falling of “bottom” coal. The process of mining is for the very purpose of producing a fall of the coal. The plaintiff claims that it was the roof that fell, and that this was caused by the absence of the necessary props.

The plaintiff testified that he was injured by a fall of material from the roof.' He produced one other witness to testify to the occurrence, but this witness on cross-examination testified that plaintiff was injured by a fall of the “bottom” coal. Three witnesses produced on behalf of the defendant testified that the roof at the place of the accident was sound and that plaintiff was injured by being caught by a fall of the “bottom” coal which he was mining. There were therefore four witnesses testifying that the plaintiff was injured in this manner, and on the other hand only the plaintiff testifying that he was injured by a fall of material from the roof.

At the request of the plaintiff the Court gave the following instructions on the preponderance of the evidence :

“(2) By a preponderance of the evidence is not necessarily meant a greater number of witnesses, but if the allegations of the plaintiff’s declaration have been proven by such evidence as satisfies and produces conviction in the minds of the jury, then he has proven his case by a preponderance of the evidence.”
“(3) The preponderance of the evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of the evidence is the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved on the trial; and frtim all these circumstances determine upon which side is the weight or preponderance of the evidence.”

We are of the opinion that the giving of these instructions is reversible error where the number of witnesses is an important factor in determining the preponderance of evidence. Among the cases so holding are: Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409; Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621; Chicago Union Traction Co. v. Hampe, 228 Ill. 346; Andreicyk v. Chicago & E. I. R. Co., 150 Ill. App. 539. It may be that in a case where the number of witnesses was not important, the giving of such instructions might not be ground for reversal, as was the case in Elgin, J. & E. Ry. Co. v. Lawlor, supra, but in the case before us the number of witnesses testifying, as above indicated, was a very important matter to be considered by the jury, and an instruction which ignores or omits the number of witnesses as an element to be considered is calculated to mislead the jury.

Plaintiff testified that he made a demand for props of the mine manager, but this was denied by the manager. Plaintiff was also permitted to testify that he made a demand for props of the driver of coal cars running in the mine. Plaintiff did not establish any custom of permitting demands for props to be made upon the drivers when the manager had failed to respond to the demand. Therefore, evidence of a demand upon the driver should not have been admitted. This is in accord with the ruling in Henrietta Coal Co. v. Martin, 221 Ill. 460, where the Court said, upon this kind of evidence, that the plaintiff “did not show that the driver communicated this demand to the manager, or that it was the manager’s duty to call on the driver to ascertain whether any such request or demand had been made of the driver * * * if the driver failed

to convey the order to the manager the driver would be at fault, and not the manager, and the proprietor could not be held liable for such negligence on the part of the driver. Evidence of the demand made on the driver should not have been admitted. ’ ’ In Donk Bros. Coal & Coke Co. v. Lucis, 226 Ill. 23, it was permitted to show a demand upon the drivers for props, for the reason that the mine manager had expressly established the rule in that mine that the miners should request props from the drivers; and in the opinion that case is distinguished from Henrietta Coal Co. v. Martin, supra, the Court saying of the latter case, “there was no established rule or custom which was authorized by the company.” In the case at bar the evidence shows clearly that there was no custom of demanding props from the drivers, but that the custom was that the demand should be made either of the mine manager or of his assistant, Condie, who was called the “face boss.” Under such circumstances the admission of testimony concerning the demand upon the driver was error.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Brown Brothers Manufacturing Company, Appellee, v. S. H. Harris Company, Appellant.
    Gen. No. 18,933.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by Brown Brothers Manufacturing- Company, a corporation, against S. H. Harris Company, a corporation, to recover damages for failure of defendant to complete a contract for furnishing certain doors and frames for a building in course of construction. Plaintiff had a subcontract for the iron work and sublet to defendant the contract for stair hall doors. 'The contract provided that the doors “shall be made acceptable in all respects to the architects and to the board of fire underwriters.” Upon defendant’s failure to furnish the doors the plaintiff let the contract for completing the work to other parties, the contract containing the same condition. From a judgment in favor of plaintiff for eight hundred dollars defendant appeals.

      Abstract of the Decision.
    1. Contracts, § 117

      —when not void for mistake of fact. Not every mistake, even of material facts .will suffice to avoid a contract. Where the means of information are open to both parties and where each is supposed to exercise his own skill, diligence and judgment, a mistake of judgment on the part of either or both of the parties will not render the undertaking void.
    2. Building and construction contracts, § 2

      —when not void for mutual mistake of fact. Where a company contracted to furnish certain iron doors for a building under a contract that the doors should be acceptable in all respects to the architects and the board of fire underwriters, held that the fact that the doors would not pass the tests of the underwriters would not avoid the contract on the ground that there was a mutual mistake of fact.
    3. Building and construction contracts, § 103

      —when evidence insufficient to show impossibility of performance. In an action against a company for damages for failure to furnish iron doors acceptable to the architects and the board of fire underwriters, evidence held insufficient to establish that the contract was impossible of performance for refusal of the underwriters to allow such doors, it appearing there was nothing inherently or naturally impossible in the undertaking, and no evidence of any rules or action of underwriters rejecting the doors, and the only evidence of the attitude of the underwriters being the testimony of the president of the defendant Company that he was informed over the telephone by the “surveyor” of the board of underwriters that the doors would not be allowed.
    Egbert W. Dunn, for appellant.
    Gann, Peaks & Townley, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    In re Estate of Lazarus Silverman, deceased. On Appeal of Freda J. Wolf, Administratrix, Appellant, v. Estate of Lazarus Silverman, Deceased, Appellee.
    Gen. No. 18,942.
    1. Executors and administrators, § 217

      —when judgment may he alloiued as claim against estate without revival after seven years from (late thereof. A judgment may be allowed as a claim against the estate of the judgment debtor within twenty years from the date of its rendition without being revived by scire facias after the expiration of seven years, as provided by section 6, ch. 77, R S., J. & A. If 6756.
    2. Executors and administrators, § 217

      —necessity of revival of judgment within year after issuance of letters to have judgment allowed as claim against estate. Section 19, ch. 83 R S., J. & A. If 7214, does not require a judgment to be revived by scire facias or by an action of debt within one year after the issuance of letters testamentary or administration, in order to have the judgment allowed as a claim against the estate of the judgment debtor within twenty years from its date.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Rehearing denied April 13, 1914.
    Henry Both, for appellant.
    Elijah N. Zoline and Morris K. Levinson, for appellee ; Edward F. Dunne, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

The judgment in this case must be reversed and the cause remanded, for the reason that in our opinion the trial court was in error in his view of the law applicable to the facts. Ernestine Wolf held a note made by Lazarus Silverman dated February 27, 1894. Judgmen on this note was had on April 14,1896. On April 23, 1900, Silverman was discharged in bankruptcy. It is said that subsequently he promised to pay Ernestine Wolf the amount of this judgment. Silverman having died, Ernestine Wolf presented her claim in the Probate Court against the estate of Lazarus Silverman, and it was allowed. Appeal was had to the Circuit Court, and Ernestine Wolf having died, Freda Wolf, her administratrix, was substituted. After trial without a jury in the Circuit Court the claim was dismissed.

The trial court was in error in holding as a matter of law that the judgment of April 14, 1896, became “outlawed on the 14th day of April, 1903, unless revived by scire facias or by an action in debt thereon in a court of competent jurisdiction,” and in holding that the Probate Court could not allow the claim unless the judgment had been revived by scire facias or an action in debt, as provided for by section 6, chapter 77 of the Revised Statutes (J. & A. ff 6752). We are of the opinion that this section has no application here. It provides that no execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien, except upon the revival of the same by scire facias. There is here no question touching the issuing of an execution; hence this section is not in point. Section 26, ch. 83, entitled “Limitations” (J. & A. 7221), is the statute which provides in effect that the life of a judgment shall be twenty years, and this section is controlling upon the point before us. Hence the judgment in question would not become “outlawed” until April 14, 1916, and was a proper subject for adjudication in the Probate Court, unaffected by any question of revivor by scire facias or otherwise. Winslow v. Leland, 128 Ill. 304 (339); Clingman v. Hopkie, 78 Ill. 152.

It was also error to hold that the claim was “barred by the limitation provided for in Section 19, Chapter 83, Revised Statute of Illinois [J. & A. ff 7214] for failure on her part to revive the judgment sued upon in this case by scire facias or by an action in debt within one year after the issuance of letters testamentary of administration.” Section 19 provides in effect for extending the time for bringing suit, where the debtor dies within the time limited, to a time after the expiration of the limitation but within one year after the issuing of letters. This has no bearing upon the situation under consideration if, as we hold under the statute, the life of the judgment runs for twenty years after its date.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Daniel McFadden, Appellee, v. Adams Express Company, Appellant.
    Gen. No. 18,974.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action by Daniel McFadden against Adams Express Company to recover damages for false imprisonment of plaintiff by defendant. Defendant had employed a detective to investigate lost shipments and the detective suspecting that the theft had been committed by the plaintiff, an employe of defendant, had plaintiff arrested. The detective reported the arrest to the general manager of defendant who directed that plaintiff be held until it might be ascertained whether there was any police record against plaintiff, and upon no such record being found the general agent instructed the detective to tell the officer at the police station that the Company did not intend to prosecute plaintiff and plaintiff was set free. Plaintiff recovered a judgment for one thousand five hundred dollars, from which defendant appeals.

      Abstract of the Decision.
    1. False imprisonment, § 27

      —admissibility of evidence. In an action for false imprisonment on account of arrest of plaintiff, permitting plaintiff to introduce evidence of a visit made by a detective, employed by defendant, and police officers at the home of plaintiff’s fiancee, after the arrest, showing that the visit was made late at night, that the bedroom of plaintiff’s fiancee was searched and that she was accused of improper conduct; and permitting testimony of the bad conditions of the police station and the food which was given plaintiff, held improper and highly prejudicial.
    2. Trial, § 119

      —when remarle of counsel not improper. In an action for false imprisonment, a remark of defendant’s counsel in his closing argument in discussing the amount of possible damages, that the person who was responsible for the arrest of plaintiff was not a party defendant, held improperly stricken out in view of the argument of plaintiff’s counsel to the effect that it was only from the defendant that plaintiff could get compensation.
    3. Appeal and error, § 1514

      —when remarles of counsel prejudicial. In an action for false imprisonment on account of arrest of plaintiff at the instance of a detective employed by defendant, permitting plaintiff’s counsel in his open statement to the jury to describe a visit by the detective and police officers at the home of plaintiff’s fiancee after the arrest, and also a statement of plaintiff’s counsel to the jury that plaintiff had been beaten at the station by a police officer, though objection to the latter remark was sustained, held prejudicial error.
    4. Appeal and error, § 1779

      —when characterisation of persons in instruction prejudicial. Giving of instructions for plaintiff in an action for false imprisonment, referring to the arrest of plaintiff as being made by defendant’s “authorized agents,” held prejudicial error.
    Charles B. Elder, for appellant.
    White & Marie, for appellee; Lemuel M. Ackley, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice MoSurely

text:
    Sebastino Lorenzo, Appellant, v. Thomas M. Hunter, Bailiff, et al., Appellees. Sebastino Lorenzo, Appellant, v. Thomas M. Hunter, Bailiff, Appellee.
    Gen. No. 19,052.
    (Not to be reported in full.)
    Gen. No. 19,053.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebrob, § 1088

      —effect of failure of briefs to argue assignments of error. Assignments of error not argued in appellant’s brief are waived.
    Appeal from the County Court of Coolr county; the Hon. W. F. Slates, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 30, 1914.
    Statement of the Case.
    Action of replevin by Sebastino Lorenzo against Thomas M. Hunter, Gatina Canino and Terisina Canino to recover certain horses, harness and wagons. Subsequently the plaintiff sued out another writ against Thomas M. Hunter, bailiff of the Municipal Court, to recover certain horses, harness and wagons. Some of the chattels apparently are described in both writs. The suits were heard at the same time and judgment was entered in each, the court finding the right of possession in the “defendant”- and assessing damages at one cent. The plaintiff appealed from both judgments, and the appeals were consolidated for hearing.
    Benjamin E. Cohen, for appellant.
    A. G. Dicus, for appellee.

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

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

   Mr. Justice MoSurely

delivered the opinion of the court.

2. Costs, § 67 —when statutory damages for prosecuting appeal for delay not alloioahle. On appeal from a judgment assessing damages at one cent, statutory damages for prosecuting an appeal for delay, as provided for in section 23, ch. 33, Hurd’s R S., J. & A. If 2737, cannot be awarded as ten per cent, of the amount of the judgment as damages is too small to be considered.

3. Replevin, § 150 —when finding responsive to issues. A finding in replevin that the right to possession is in the defendant is responsive to the issues where the plaintiff claimed to be entitled to possession of the goods and defendant’s plea traversed such claim.

4. Replevin, § 137 —when damages may he assessed against plaintiff. In replevin where the right of property is adjudged to be in the defendant, damages may be assessed against the plaintiff by the court.


author: Mr. Presiding Justice Smith

text:
    Robert Gordon, Plaintiff in Error, v. Watson Solar Window Company, Defendant in Error.
    Gen. No. 19,115.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and judgment here.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Robert Gordon against Watson Solar Window Company to recover for labor and materials furnished in repairing a heating plant at the request of defendant through its president. To reverse a judgment in favor of defendant, plaintiff brings error.
    Alden, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    Bell & Cross, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Assumpsit, action op, § 65 —when company liable for work and materials furnished on its request. In an action against a company to recover for labor and materials furnished in repairing a heating plant in a building occupied by it, at the request of the defendant through its president, held that the evidence was sufficient to show that the defendant was liable, and a judgment in favor of defendant was reversed.


text:
    Richard G. Steudle, trading as Richard G. Steudle & Company, Defendant in Error, v. Charles Manthie and Mrs. Charles Manthie, Plaintiffs in Error.
    Gen. No. 19,195.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 31, 1914.
    Statement of the Case.
    Action by Richard Gr. Stendle, trading as Richard Gr. Stendle & Company, against Charles Manthie and Mrs. Charles Manthie to recover the sum of $42.50 alleged to be due for work and materials furnished in repairing an automobile owned by the defendants. Suit was dismissed for want of prosecution and judgment entered in favor of defendant for cost. Three months and twenty-three days after the entry of the order, on motion of plaintiff, the court vacated the order of dismissal and judgment and reinstated the cause without any petition or affidavits being filed in support of his motion to vacate the order, and without any showing made by him, upon which the trial court based its action. To reverse the order vacating the judgment, defendant brings error.

      Abstract of the Decision.
    Municipal Court op Chicago, § 19

      —mode of vacating judgments after thirty days from time of entry. After thirty days from the entry of a judgment in the Municipal Court, the court has no jurisdiction to vacate the judgment and reinstate the cause without a petition and affidavits being filed in support of a motion to vacate the same. Section 21 of the Municipal Court Act, J. & A. j[ 3333, provides for the only method of giving to the Municipal Court jurisdiction to vacate judgments after thirty days from the entry thereof.
    Eliot H. Evans, for plaintiffs in error.
    N. A. Stern, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.