text:
    Ditson De Shelter, Appellee, v. American Spring Water Supply Company et al., on appeal of James B. Wilbur, Appellant.
    Gen. No. 18,013.
    1. Corporations, § 605

      —when corporation is liable for debts of another corporation. The doctrine that two corporations become consolidated where one corporation absorbs all the assets of another, and that the absorbing company is liable for the debts of the absorbed company does not apply where a corporation sells all its assets to a partnership and a large portion of such assets are subsequently transferred to the second corporation.
    2. Corporations, § 213*—when finding as to value of property will not be disturbed. Seld, that a finding, as to the value of certain property turned over to a corporation for stock, was no't manifestly wrong.
    3. Corporations, § 124*—how stock may be paid for. In this State nothing but money or money’s worth is to be regarded as payment for shares of capital stock of corporations.
    4. Corporations, § 213*—when stockholders are liable to creditors. When either by fraud, accident or mistake stock of a corporation has not been paid for in money or money’s worth, the holder thereof is liable to creditors of the corporation to the full extent of the difference between the par value of the stock and the money or money’s worth paid to the corporation for such stock.
    5. Corporations, § 538

      —lohen till will lie. Where a person recovered a judgment against a corporation and execution was returned unsatisfied, 7veld that a bill was proper under Chancery Act, § 49, J. & A. | 929, for the satisfaction of such judgment, and when it appeared that certain stockholders had overvalued property turned over to the corporation, a judgment against such stockholders was proper.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Grideey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Scott, Bancroft & Stephens, for appellant.
    Charles B. Whitman, for appellee; Area N. Waterman, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

On April 28, 1902, one James H. Wells, acting for himself and James B. Wilbur, the appellant, purchased at a public sale conducted by a receiver all the tangible property, book accounts, contracts, good will and customers of the American Water Company, a bankrupt, for the lump sum of $11,000. The American Water Company had been engaged in the business of buying, selling and distributing mineral water in the city of Chicago. Otis W. Hinckley and George J. Schmitt, partners doing business as Hinckley & Schmitt, had been the chief competitors in business of the American Water Company, and at the sale bid for the property the sum of $10,750. After the purchase of this property by Wells, a corporation by the name of the American Spring Water Supply Company was formed with a capital stock of $50,000, divided into 500 shares of the par value of $100 per share. Of these- shares one was subscribed for and issued to Fred L. Wells, one was subscribed for and issued to Albert A. Johnston and 498 were subscribed for and issued to James H. Wells, he still acting for himself and appellant. Later 249 of these shares were duly transferred to appellant by James H. Wells. The only consideration paid for the 498 shares issued to James H. Wells was the property purchased by him at the bankruptcy sale, which was turned over by him bodily to the corporation at the valuation of $49,800, and the same was accepted by the corporation in full payment for the shares issued to him. The American Spring Water Supply Company continued the business formerly conducted by the American Water Company until January 7, 1904, when negotiations that had been carried on for several months between the American Spring Water Supply Company and Otis W. Hinckley and George J. Schmitt, as partners, culminated in a sale to them of all the tangible property, book accounts and good will of the business of the American Spring Water Supply Company for the sum of $30,000, and the assumption by them of and the agreement on their part to pay certain outstanding debts of the American Spring Water Supply Company to 'the amount of $1,425.48. All the property of that Company was duly transferred to Hinckley and Schmitt, partners, by bill of sale and the stock in the corporation was also transferred to Otis W. Hinckley, George J. Schmitt and one F. B. DeForrest, who seems to have been connected in business in some way with Hinckley and Schmitt, and these new stockholders were duly elected directors and officers of the American Spring Water Supply Company. Pending the negotiations that culminated in this sale, and before the sale and transfer of the property of the American Spring Water Supply Company to Otis W. Hinckley and George J. Schmitt, a corporation was formed by the name of Hinckley & Schmitt, in which Otis W. Hinckley and George J. Schmitt were the chief stockholders, enough stock being held by others to permit of a corporate existence. After the transfer of the property of the American Spring Water Supply Company to Hinckley & Schmitt, as partners, they collected and kept about $4,000 of accounts purchased of the American Spring Water Supply Company, but the property used in the conduct of the business was turned over by Hinckley and Schmitt, partners to Hinckley & Schmitt, incorporated, without any consideration being paid therefor by the corporation to the partnership. About the same time the stock and charter of the American Spring Water Supply Company was transferred by Otis W. Hinckley and George J. Schmitt to one Thomas F. Dow, the obvious purpose of which was an attempt to end the corporate existence of the American Spring Water Supply Company. Later, appellee in this case sued the American Spring Water Supply Company for personal injuries received by him while in its employ, and while it was owned by the Wells and Wilbur combination, and recovered a judgment against that company for $20,000, on which execution was duly issued and returned “no property found.” Appellee then began this suit under section 49, ch. 22, E. S. (J. & A. 929), charging that the stock subscribed for by and issued to James H. Wells for himself and James B. Wilbur, the appellant, was not fully paid for, and that they each owed the corporation a. very considerable sum of money therefor, and seeking to recover of them the unpaid balance so due to apply to the payment of his judgment. The court found that such stock was not fully paid for; that of the par value of $49,800 of the stock subscribed for by Wells, only $31,425.48 had been paid; that there was still due thereon $18,374.52, or $9,187.26 from Wells and a like amount from Wilbur, and a decree was entered in accordance with such finding and ordering appellant and James H. Wells each to pay to appellee $9,187.26 to apply on Ms judgment against the American Spring Water Supply Company. James B. Wilbur alone appealed from that decree.

A great amount of time, space and energy has been consumed by counsel on both sides in arguing pro and con the proposition that where one corporation absorbs all the assets of another, the two corporations thereby become consolidated and the absorbing corporation becomes liable for the debts of the absorbed corporation; that in that event a complete remedy at law exists, and eqmty will not afford relief. As applied to the facts in this case, that question is purely academic. While it is true that Otis W. HincMey and George J. Schmitt, as partners, after they became the owners of the assets of the American Spring Water Supply Company and had the same in their possession, turned ever a very considerable part of the same to Hinckley & Schmitt, incorporated, that transaction cannot be construed to be an absorption by Hinckley & Schmitt, incorporated, of assets of the American Spring Water Supply Company for two plain reasons: First, the latter company, at the time of that transaction, neither owned nor had any interest in or control over the goods so turned over to Hinckley & Schmitt, incorporated, by Otis W. Hinckley and George J. Schmitt, it having before that time sold, conveyed and delivered the same to Otis W. Hinckley and George J. Schmitt; second, even if the part of the assets of the American Spring Water Supply Company that eventually came into the possession of Hinckley & Schmitt, incorporated, through Otis W. Hinckley and George J. Schmitt, copartners, had been transferred directly from one corporation to the other, the transaction could not be held to be a consolidation of the two corporations by the absorption of the assets of the one by the other, because the very substantial amount of $4,000, in cash collected out of the book accounts of the American Spring Water Supply Company by Otis W. Hinckley and George J. Schmitt, co-partners, to say nothing of the book accounts of that corporation that are not shown to have been collected, was never turned over to, or came into the possession or control of, Hinckley & Schmitt, incorporated. The principle sought to be applied rests on the absorption by one corporation of all, not part, of the assets of the other. It is, therefore, unnecessary for this court to determine what the effect in law would have been, if there had been an absorption by Hinckley & Schmitt, incorporated, of all the assets of the American Spring Water Supply Company.

Section 49 of the Chancery Act (J. & A. 929) provides: “Whenever an execution shall have been issued against the property of a defendant on a judgment at law or in equity, and shall have been returned unsatisfied in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other person to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money, or thing in action due to him, or held in trust for him, * * * the court shall have power to compel such discovery * * * and to decree satisfaction of the sum remaining due on such judgment out of any personal property, money or thing in action, belonging to the defendant or held in trust for him, * * * which shall be discovered by the proceedings in chancery, whether the same were originally liable in execution at law or not * #

The American Spring Water Supply Company, James H. Wells, James B. Wilbur, the appellant, Fred L. Wells and Albert A. Johnston were all made parties defendant and were all served with summons. That appellee obtained the judgment made the basis of this suit, and that execution was duly issued thereon and returned unsatisfied is not controverted. The main question of fact in dispute is whether the property turned over to the American Spring Water Supply Company as full payment for the 498 shares of stock of the par value of $49,800, was in fact worth that amount of money. The property consisted of a large variety of articles, afterwards used in the business conducted by the new corporation, and that had been used in the same sort of business by the American Water Company. There was in this list of property 37 horses; 16 set of double harness; 2 set of single harness; 20 fly nets; 20 wagons; 2 buggies; a clipping machine, curry combs, brushes, brooms and other barn utensils, horse medicine, office furniture, safes, desks, chairs, stoves and the like; about 1,800 coolers; 25,000 ten gallon cans; 2,500 five gallon cans; 1,800 five gallon carboys; 1,700 cooler stands; 11,500 faucets; certain bottling machinery, tinners and other tools, trucks, and book accounts; also stock in trade, customers and good will of a going business. There were also to be considered in the transaction quite an amount of outstanding water coupons, which must be redeemed. From an examination of this list it is manifest that the determination of the value of this property is beset with unusual difficulty. In attempting to determine that question a great volume of evidence was taken, much of which necessarily rested in the opinion of the witnesses. An examination of this evidence discloses a most unusual and extraordinary divergence of opinion. One witness placed the total value as low as $7,000, while one witness estimated it to be of the value of $100,000. Other witnesses placed it at various amounts between the two extremes. Practically this same property was appraised in the bankruptcy proceeding at about $27,000, was bought by Wells at the receiver sale for $11,000, and was sold in January, 1904, to Otis W. Hinckley and George J. Schmitt for $31,425.48. The evidence tends to show that, while Wells and Wilbur and the American Spring Water Supply Company were the owners of this property, approximately '$10,000, realized out of the business, was expended in repairing and fixing up the property. The master, through processes of his own, determined from all this evidence that the value of the property, when it was turned in by Wells and Wilbur in payment for the stock in question, was $31,425.48. On review of the evidence the court confirmed the master’s findings in that respect. The findings of the master and the trial court must be given due weight, and unless they are manifestly wrong a decree should not be reversed because such findings are against the weight of the evidence. We have given the evidence in this record most careful consideration, and while we might not be able to mathematically demonstrate the accuracy of the findings as to the value of the property in question, we are certainly not prepared to say it is manifestly wrong. It follows that this case must be determined upon the theory that at the time the property was turned in to the American Spring Water Supply Company as of the value of $49,800, and in payment for stock of that par value, it was over valued to the extent of the difference between $31,425.48, and $49,800, or $18,374.52. Appellant contends that, even if that be true, still “the overvaluation was solely an error in honest business judgment, and the issuance of the stock for the property cannot be set aside, unless other acts are shown constituting fraud. By this contention appellant seeks to invoke the so-called “good faith rule,” which rests upon the theory that where, by the statutes under which it is organized, the stock of a corporation may be paid for in property instead of cash, or where that right is conceded, although not expressly authorized by statute, the overvaluation ■ of the property turned in to the corporation in payment of stock, affords to the creditor of the corporation no right of action against the stockholders, provided the payment in property is made and accepted in good faith, or, in other words, if the transaction between the stockholders and the corporation is free from actual fraud.

In. jurisdictions where the good faith rule is recognized and the appraisement is honestly made, the property turned in is deemed to be payment for the stock to the extent of the price at which it is so turned in and accepted, and the stockholder is protected to the same extent as if the amount so paid had been paid in cash. See 10 Cyc. 475, 476 and cases there cited. In this State, however, the- so-called “true value rule” has received the indorsement of the courts and must be held to be in force. By this rule nothing except money or money’s worth is to be regarded as payment for shares of capital stock in corporations, regardless of whether the transaction was entered into in good faith or not. By this rule one who subscribes for and receives stock of a corporation must pay therefor the par value thereof, either in money or money’s worth, so that the real assets of the corporation at the outset at least shall square with its books. When either by fraud, accident or mistake, stock of a corporation, so subscribed for and delivered, has not been so paid for in money or money’s worth, the holder thereof, wherever the true value rule is in force, is liable to the creditors of the corporation to the full extent of the difference between the'par value of the stock and the money or money’s worth paid or turned over to the corporation in payment therefor. -The last expression of our Supreme Court on this subject is found in Gillett v. Chicago Title & Trust Co., 230 Ill. 373, where the Court says: “It is contended by appellants that in accepting certain property in payment of MacKaye’s subscription to the capital stock of the Columbian Celebration Company to the amount of $1,999,600, the directors fixed that value upon the property offered in the fair and honest exercise of their judgment as to its worth, and that the stock must therefore be regarded as fully paid and non-assessable, even if the directors erred in their judgment as to its value. “When the board of directors met on May 16, 1892, the principal asset of the corporation was MacKaye’s subscription for stock to the amount above mentioned. The law required the directors, in collecting that subscription, to obtain from MacKaye ‘money or money’s worth’ to the full amount of the subscription. (Coleman v. Howe, 154 Ill. 458; Garden City Sand Co. v. Crematory Co., 205 Ill. 42.) ‘Money or money’s worth’ means cash or its equivalent. If the directors saw fit to accept property in lieu of cash they could only take it at its fair cash market value, if it was property which had an ascertainable market value.”

Appellant suggests that there is a third rule that applies to cases where the property turned in to the corporation in exchange for stock is of such a character that its value is not definitely ascertainable, but must necessarily be a matter of opinion in which case, it is contended, a reasonable latitude must be allowed for honest errors of judgment, and that unless actual fraud is shown by other acts the transaction will not be disturbed. This is not a third rule, as counsel argues. It is but a restatement of the good faith rule. Concerning that situation, the Supreme Court, in the Gillett case, supra, says, following the part above quoted: “If it had no ascertainable market value, then the only price at which the directors could purchase it was such price as could be realized by selling it to others for cash.” Thereby applying the true value rule to the identical state of facts that counsel insists gives rise to a third rule.

The bill filed herein makes a case under the provisions of section 49 of the Chancery Act of this State (J. & A. 929), and all the material averments of the bill are supported by the proof. We are not prepared to hold that the amount found by the Superior Court to be unpaid on the stock of appellant is contrary to the manifest weight of the evidence. The decree of that court is, therefore, affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presidikg Justice Graves

license: Public Domain

text:
    Carl Strum, Defendant in Error, v. Frank A. Blair and Chicago Title and Trust Company, Trustee, Plaintiffs in Error.
    Gen. No. 18,075.
    1. Judgments, § 126

      —how damages upon default may be assessed. Under Municipal Court rule 17, providing that the court may enter judgment as in case of default upon the plaintiff’s affidavit of claim where the defendant’s affidavit of merits is stricken from the files for insufficiency, it is proper for the court to assess damages without calling a jury for such purpose.
    2. Receivers, § 6*—what is nature of proceedings for. Proceedings for the appointment of receivers are recognized as extraordinary.
    3. Receivers, § 59*—when damages are recoverable. Hurd’s R. S. Ch. 22, § 53, J. & A. jf 2743, as to the giving of a bond to pay damages sustained by the appointment of a receiver, does not limit the recovery of damages to cases where a bond is given, as such bond merely secures the payment of damages, and it is the wrongful procurement of the appointment that creates the liability.
    4. Receivers, § 59*-—what liability for wrongful appointment depends on. In an action for damages for wrongfully procuring the appointment of a receiver in a foreclosure case, the liability does not depend on whether the prosecution of such foreclosure case was malicious or not.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Lackker, Butz & Miller, for plaintiffs in error.
    Hehry & Bobiksok, for defendant in error.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Presidikg Justice Graves

delivered the opinion of the court.

Plaintiffs in error began a suit in the Superior Court of Cook county to foreclose a trust deed. Defendant in error was a party defendant in that suit.

In that suit plaintiffs in err.or procured an order appointing a receiver, which order was on motion of defendant in error vacated and set aside. In procuring the vacation and setting aside of the order appointing a receiver defendant in error necessarily employed an attorney, to whom he paid two hundred dollars for services rendered. It is not contended that such services were unnecessary or that the fees paid were unreasonable. It is not claimed that defendant in error suffered any damages as a result of the appointment of the receiver, except in the expenditure of the fees so paid his attorney. To recover from plaintiffs in error the amount so paid for attorney’s fees, defendant in error brought his suit in the Municipal Court and filed therein bis statement and affidavit of claim showing the basis of his claimed right of action to be as above recited. Plaintiffs in error entered their appearance, demanded a jury trial, obtained an extension of time in which to file their affidavits of meritorious' defense and moved to have defendant in error’s affidavit of claim stricken from the files for the reason that it stated no cause of action. This motion was overruled and they then filed separate affidavits of defense which, as to the nature of the defense, were identical. The substance of such affidavits was that the suit in which the receiver was appointed was a civil suit for the foreclosure of a trust deed; that plaintiff (defendant in error in this suit) was not arrested in the foreclosure suit, nor was any property of said plaintiff taken by the receiver appointed in the foreclosure suit; and that neither of the defendants had promised to pay the plaintiff any damages by reason of the appointment of the receiver. The affidavits of merits were stricken from the files. Plaintiffs in error not then taking further steps in the ease were defaulted and the court assessed the plaintiff’s damages and rendered judgment on the affidavit of claim against both plaintiffs in error for two hundred dollars and costs.

It is first urged that the court erred in failing to call a jury to assess the damages and in rendering judgment for defendant in error without having the damages so assessed. The answer to this contention is found in rule 17 of the Municipal Court, in force when these proceedings were had, which expressly provides: “Where the defendant files an appearance, either with or without a demand for a jury trial, and fails to file with it at that time or at such further time as the court may allow, an affidavit of merits, or where the defendant’s affidavit of merits is stricken from the files for insufficiency,' the court may then and there enter judgment as in case of default for the plaintiff upon the plaintiff’s affidavit of claim in such cause, or such further evidence as the court may require.”

It is next urged that the court erred in denying the motion to strike from the files the affidavit of claini of defendant in error, in striking from the files the affidavits of meritorious defense of plaintiffs in error and in rendering judgment for defendant in error, for the reason that an attorney’s fee paid by a defendant in the defense of an ordinary civil proceeding is not such an element of damages as can be recovered of the unsuccessful party. The vice in this proposition, as applied to the facts in this case, starts with the assumption that the attorney’s fee in question was paid for services rendered in an ordinary civil proceeding.

Proceedings for the appointment of receivers are recognized as extraordinary. See High on Receivers (4th Ed.), sees. 3, 10. In Joslin v. Williams, 76 Neb. 594, attorney’s fees for services made necessary by the improper appointment of a receiver was held to be recoverable of the party securing the appointment, regardless of any statutory provisions on the subject. By section 53 of chapter 22, Hurd’s Statutes, (J. & A. 2743), such attorney’s fees are recognized as part of the damages incident to the appointment of a receiver where the same is revoked and set aside. It provides: “That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages including reasonable attorney’s fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.”

Counsel for plaintiff in error insists that the section quoted only applies in cases where bond is given, as required by that section. That is a mistake. The giving of the bond does not create the liability as to the principal. It merely secures the payment of the damages. It is the wrongful procurement of the appointment of the receiver that creates the liability. High on Receivers (4th Ed.) sec. 10, likens the appointment of receivers to injunction proceedings, and our Supreme Court, in Kohlsaat v. Crate, 144 Ill. 14, holds that liability for solicitor’s fees on dissolution for injunction arises from the wrongful suing out of the injunction and not from the giving of the bond, and is recoverable from the complainant whether bond is given or not, and regardless of the amount of the bond, if one is given. The Liquid Carbonic Acid Mfg. Co. v. Convert, 186 Ill. 334, and Smith v. Michigan Buggy Co., 175 Ill. 619, are not in point under the facts in this case. In the Convert case, supra, no receiver was appointed, the application therefor being successfully resisted, and the Smith case, supra, was for malicious prosecution. In the case at bar, the liability does not depend on whether the prosecution of the foreclosure case was malicious or not. The receiver was in fact appointed and the order therefor after-wards revoked on motion.

It follows that there was no error in any of the rulings of the Municipal Court complained of.

The judgment of that court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Graves

text:
    Joseph Stern, Defendant in Error, v. Samuel Welensky and Morris Goldberg, copartners, Plaintiffs in Error.
    Gen. No. 18,094.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bailment, § 1—what constitutes. Where a patron of a bathing establishment pays for the use of a safety deposit box and places his money and valuables therein while he takes a hath, the transaction constitutes a bailment of such money and valuables.
    Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Joseph Stern against Samuel Welensky and Morris Goldberg, copartners trading as Welensky & Goldberg, to recover the value of certain property. From a judgment for plaintiff for two hundred and eighty-two dollars and costs, defendants bring error.
    Harry M. Fisher, for plaintiffs in error.
    McMahon & Cheney, for defendant in error; E. C. Reniff, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Bailment, § 12 —when bailee is liable for failure to return articles. Where a patron of a bathing establishment delivered property to such establishment as bailee and such property could not be returned on demand a presumption of negligence on the part of the bailee arose, and since the bailee failed to show that the property had been lost by some violence, accident or theft, it was liable for the value thereof.

3. New trial, § 67*—when awarded. Newly discovered evidence in order to require the granting of a new trial, must be of a conclusive character against the verdict returned and a new trial will not be awarded for the sole purpose of impeaching a witness, even though such witness is a party, particularly where the evidence given relates to an immaterial matter.

4. Bailment, § 27*—what evidence is material. Where a bailor shows that he deposited money and valuables with a bailee, it is wholly immaterial how such bailor acquired the property deposited.


text:
    Chase Brothers Piano Company, Defendant in Error, v. Georgia W. Conners, Plaintiif in Error.
    Gen. No. 18,144.
    1. Chattel mortgages, § 167

      —when mortgagee entitled to possession for default in payments. Provision in a chattel mortgage giving mortgagee right to declare whole sum due and to take possession on default in the payment of any instalment does automatically create a forfeiture without mortgagee declaring his election.
    2. Replevin, § 163*—judgment when plaintiff becomes entitled to possession during trial. When no demand before suit, but plaintiff becomes entitled to possession at the time of the trial, judgment should be against plaintiff for costs without an order for the return of' the property.
    3. Replevin, § 46*—necessity of demand before suit. To entitle a chattel mortgagee to sue for possession under a provision entitling mortgagee to possession on default in payment of any instalment he must demand possession before bringing suit.
    4. Replevin, § 48*—waiver of demand. Defendant’s plea claiming property in herself does not amount to a waiver of demand where the defense does not rest on that plea alone.

      Error to the Superior Court of Cook county; the Hon. John Mc-Nutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with directions.
    Opinion filed October 15, 1913.
    Caswell & Healy, for plaintiff in error.
    Jarrell & McNeil, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiff in error bought of defendant in error a piano and gave a note secured by a chattel mortgage on the piano for $321.75, the unpaid part of the purchase price, the same to be paid in.instalments. The instalments were not paid as they matured. After plaintiff in error had defaulted in the payment of some of them, but before the entire debt had become due, defendant in error, without first making any demand for the property, and without notifying plaintiff in error of its election to declare the entire debt due, and without formally declaring it to be due, brought an action of replevin in the Superior Court, took possession of the property. The declaration filed in that cause charges that the defendant (plaintiff in error) unjustly detained, and that she unjustly took and detained, the goods to which plaintiff (defendant in error) had title and right to possession. At the trial the note and mortgage were introduced in evidence by defendant in error and proof offered showing that nothing had been paid on the debt by plaintiff in error since the giving of the note and mortgage, but that $22 due from defendant in error to plaintiff in error for commissions in another transaction had been indorsed on the note without her knowledge. At the close of the evidence introduced by defendant in error, plaintiff in error moved for a peremptory instruction directing the jury to find the issues for her. This motion was denied and she offered no evidence. The court thereupon instructed the jury to find the issues for defendant in error, which they accordingly did. At the time of the trial the entire debt had matured and there was due on the same the sum of $299.75, besides the accrued interest. Judgment was in due time entered on the verdict.

Plaintiff in error rests her right to have the judgment reversed on two propositions: First, that defendant in error, not having by some affirmative act declared the whole amount due, was not entitled to the posesssion of the property; second, that as plaintiff in error came lawfully into possession of the property, proof of a demand for possession on the part of defendant in error before bringing suit was necessary to its maintenance.

The mortgage contained this provision: “I (the mortgagor) am to retain possession of said property until default shall be made in the payment- of said sums; but if I fail to make any of the payments with interest thereon, at the time above specified, * * * the Chase Bros. Piano Co., its agents or assigns, * * * may declare the entire amount due and take possession of said property * * *.”

Provisions of that character in chattel mortgages have been construed by the courts of this State not to create automatically a forfeiture of the stipulation giving to the mortgagor the right to retain possession of the-mortgaged property upon default in the payment of part of the instalments as they fall due, but to give to the mortgagee, as the language implies, the right to elect to declare, and to declare, the whole debt due and take possession of the property, or to ignore the default and allow the mortgagor to retain possession of it. Keelin v. Postlewait Co., 174 Ill. App. 71, affirmed in 259 Ill. 130. Plaintiff in error was by the terms of the stipulation in question entitled to the possession and use of the property until she was in default in the payment of the last instalment, or, in other words, until the last instalment had matured "by lapse of time, or had been matured by the declaration of the mortgagee. In Beach v. Derby, 19 Ill. 617, the Supreme Court said, on page 622, on this subject: “Until the maturity of the notes to secure which these mortgages were given, the mortgagor had the right to the possession and use of the property, with the right in the mortgagee to hasten the maturity of the notes. * * * Until that affirmative act was done, the rights, duties and obligations of all parties remained precisely the same as if the mortgage had contained no such provision.”

Before defendant in error is entitled to have the benefit and advantage of the terms of the stipulation by which under certain circumstances it had the right to take possession of the property, it must comply with the condition under which such right is given. The obligation to first declare the whole debt due before attempting to «take possession of the property is as much a part of the contract as the right to take possession of it after such declaration. The mortgagor had a right to rest peacefully on her right to possession until such declaration was made, and when made had the right to pay the whole debt and still retain such possession. Such declaration cannot be made and kept in the secret recesses of the mind of some of the officers of the mortgagee corporation and be effective. The mortgagee must “declare” the whole debt to be due and do it in such a way as that the mortgagor can be held to have notice of it. To “declare” is defined in the International Dictionary to be “to make exposition * * * to make * * * an open, explicit avowal; to proclaim * *

In an analogous case the Appellate Court of this district said, “* * * he could not make this election and put an end to the term by any secret resolve of his own mind, any more than can one to whom an offer or proposal is made accept the same and make a contract "by mere ‘mental assent’ to such offer or proposal.” Lame v. Brooks, 120 Ill. App. 501.

At the time the replevin suit was begun only part of the instalments had matured by the lapse of time and the balance of such instalments had not been matured by the declaration of the mortgagee. Plaintiff in error, therefore, clearly was, and defendant in error clearly was not, entitled to the possession of the property when that suit was begun. Defendant in error argues that because plaintiff in error pleaded property in herself it was useless'and, therefore, unnecessary for it to prove that it had matured the debt by some affirmative act. Two pleas were filed by plaintiff in error. By the first she denied that she wrongfully detained the property and by the second she alleged property in herself. The maturing of the debt being a condition precedent to the right of defendant in error to the possession of the property was squarely raised by the first plea and cannot be held to be waived by the filing of the second.

On the question of the necessity of proof of demand the rule is that wherever a demand is necessary to determine the right of possession of property in the defendant, or confer that right upon the plaintiff in a replevin suit, proof of such demand is necessary, unless there is a waiver of such demand or proof that it would have been unavailing. Keller v. Robinson & Co., 153 Ill. 458. Counsel for defendant in error urges that the fact that plaintiff in error by plea filed in the case claimed property in herself amounted to a waiver of demand by showing that such a demand would have been unavailing. Conceding the rule to be correctly stated, it cannot be held to apply to this case, for the reason that plaintiff in error did not rest her defense in the replevin suit on the ownership of the property alone, but filed two pleas, one of which put in issue everything necessary to defendant in error’s right to recover, including a demand for possession. The possession of plaintiff in error being originally rightful, a demand was necessary to terminate that right and to confer it upon defendant in error. If the debt had been matured by the declaration of defendant in error and it had then demanded possession of the mortgaged property it would have been entitled to it. Whether or not it can be presumed that, if that declaration and demand had been made, the possession of the property would have been surrendered to defendant in error, certainly it cannot be presumed that under such circumstances it would have been refused, or, in other words, that such demand would have been unavailing.

At the time of the trial the entire debt for which the mortgage was given had matured and was wholly unpaid, except for the sum of $22, which had become due from defendant in error to plaintiff in error for commissions earned in another transaction, and had been applied on the debt secured by the mortgage without the knowledge of plaintiff in error. Defendant in error was, therefore, at the time of the trial entitled to the possession of the mortgaged property by the terms of the mortgage. Upon the record as here presented the judgment of the Superior Court should have been against defendant in error for costs, but without an order for the return of the property. Farwell v. Hanchett, 120 Ill. 573.

The judgment of the Superior Court is, therefore, reversed with direction to that court to enter judgment against defendant in error for costs.

Judgment reversed with directions.


text:
    James Thanapoulos, Plaintiff in Error, v. Tom Boumboulos, Defendant in Error.
    Gen. No. 18,174.
    (Not to be reported in full.)
    Abstract of the Decision.
    Replevin, § 124

      —sufficiency of evidence to support finding. In replevin for a horse, wagon and harness, a finding that defendant was owner of the property, held, not contrary to the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Beplevi'n by James Thanapouios against Tom Boumboulos to recover a horse, wagon and harness. From a judgment for defendant, plaintiff brings error.
    Pines & Newmann, for plaintiff in error.
    E. F. Masterson, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Margaret Noack, Defendant in Error, v. Rudolph Wosslick, Plaintiff in Error.
    Gen. No. 17,607.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Negligence, § 23

      —who are invitees. A person patronizing a summer garden is not a trespasser or a mere licensee but an invitee.
    2. Negligence, § 24*—duty of owner to invitees. Person managing a restaurant and summer garden must exercise reasonable care to make and keep the premises in a reasonably safe condition for their proper use by patrons.
    3. Negligence, § 24*—liability for unsafe condition of premises. Operator and manager of summer garden held liable for injuries sustained by a woman patron where the injuries resulted from the unsafe condition of a platform on which she stepped while attempting to go to the women’s retiring room.
    4. Negligence, § 250*—when error in instruction harmless. Instruction that it is the duty of defendant to exercise ordinary care to preserve and keep his place in a reasonably safe condition for his patrons and visitors, held, not to harm defendant because of the use of the word “visitors,” in a case in which the plaintiff was an invitee.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walked, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Rehearing denied October 24, 1913.
    Statement of the Case.
    Action by Margaret Noack against Rudolph Wosslick to recover for injuries received by plaintiff by reason of defective condition of defendant’s premises. From a judgment in favor of plaintiff for two hundred and seventy-five dollars, defendant brings error.
    Harvey E. Wynekoop, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Hartford Suspension Company, Defendant in Error, v. L. A. Shadburne and A. Sharbaro, copartners, Defendants (A. Sharbaro, Plaintiff in Error).
    Gen. No. 17,729.
    1. Witness, § 206

      —when party may be cross-examined. Municipal Court Act, § 33, J. & A. f 3345, as to the examination of adverse parties should be reasonably construed, and where a party defendant was called as a witness to establish the question of whether a partnership existed between him and another party defendant, the interest of the witness in having such fact determined not being adverse to the plaintiff, held, that the other party defendant should have been permitted to cross-examine such witness.
    2. Appeae and ebror, § 963*—how record may be impeached. Where the record shows that objection was interposed to the admission of a decree in evidence, such record can not be impeached by mere equivocal statements contained in the stenographic report of the proceedings, such as the statement of the trial judge that according to his “best recollection” no objection was made.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 15, 1913.
    Richard I. Gavin, for plaintiff in error; Gavin & Mayer, of counsel.
    Elbert C. Ferguson, for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.

The Hartford Suspension Company brought suit in the Municipal Court against L. A. Shadburne and A. Sbarbaro, partners doing business as Simplex Automobile Co., to recover the price of certain shock absorbers claimed to have been sold to the defendants, and a trial resulted in a verdict and judgment against said defendants for two hundred dollars. To reverse this judgment the defendant, Sbarbaro, alone prosecutes this writ of error.

Plaintiff in error denies the existence of the alleged partnership and denies that he is indebted to defendant in error.

Shadburne interposed no defense to the suit, but assumed the attitude of a willing witness for defendant in error to establish the existence of a partnership between himself and plaintiff in error, and was called by defendant in error as a witness under section 33 of the Municipal Court Act (J. & A., 3345), and examined as if under cross-examination. Upon the conclusion of such examination of the witness by defendant in error, the plaintiff in error claimed the right to cross-examine the witness and requested the privilege of so doing, but such request was denied by the court. On the face of the record the interest of Shadburne, as a party defendant, was adverse to that of defendant in error, but as' a- matter of fact the interest of the witness in having it determined that a partnership existed between himself and plaintiff in error was not adverse to defendant in error, and the witness readily testified to facts which tended to show such partnership existed.

Where the contentions of the parties as to the facts in issue are conflicting, the ascertainment of the truth with reference to such facts is not the least among the functions of a judicial tribunal, and it must be conceded that the subjection of a witness to a cross-examination which searches his conscience' is one of the most successful methods of eliciting the truth. It is not a sufficient answer to say that plaintiff in error was at liberty to call Shadburne as his own witness, because the attitude of Shadburne would necessarily preclude plaintiff in error from so doing. The section of the statute in question should be given a reasonable interpretation, one that will aid rather than hinder the ascertainment of the truth in judicial proceedings. Plaintiff in error should upon the record in this case have been permitted to cross-examine the witness. We concur in the dissent expressed by Mr. Justice Smith in Colekin v. Bamborough, 159 Ill. App. 130, to the construction of section 33 of the Municipal Court Act (J. & A. ft 3345), which denies to plaintiff in error the absolute right to cross-examine the witness Shadburne.

Defendant in error seeks to justify the admission in evidence of a certain decree of the Circuit Court entered in a proceeding wherein Shadburne was complainant and plaintiff in error was defendant, solely upon the ground that it was admitted by the agreement and upon the stipulation of plaintiff in error. The record does not support the position of defendant in error in this regard. The record shows that plaintiff in error objected to the admission of the decree in evidence, and the statement by the trial judge, incorporated in the stenographic report of the proceedings to the effect, in substance, that according to his best recollection no objection was made to the introduction of the decree, but the same was admitted by agreement provided the plaintiff would admit that the decree had been appealed from and, which admission was made by the plaintiff, is not sufficient to contradict the positive statement in the record that objection was interposed to the admission of said decree in evidence. The record of judicial proceedings imports verity and may not be impeached by mere equivocal statements. The decree was improperly admitted in evidence and its admission was necessarily harmful to plaintiff in error.

The judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    Bridget McDonald, Appellee, v. Peter E. Modine et al., Defendants (Peter E. Modine, Appellant.)
    Gen. No. 17,769.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 240

      —what constitutes contributory negligence. Where a person was knocked down and injured by a horse in the street, held, that the crowded condition of such street, the rate of speed at which the horse was driven and the right of the person to assume that the driver would have the horse under control were all factors to he considered in determining whether the person exercised due care for her own safety, and since such question was one of fact, the finding of the jury, which was not contrary to the manifest weight of evidence, would not he disturbed.
    2. Roads and bridges, § 232*—what constitutes negligence. A person who drives upon a crowded street at a trot without keeping a lookout is guilty of negligence.'
    Appeal from the Superior Court of Cook county; the Hon. Habry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Bridget McDonald against Peter E. Modine and others, to recover damages for personal injuries. From a judgment for plaintiff for twelve hundred dollars, defendant appeals.
    Winston, Payne, Strawe & Shaw, for appellant; Edward W. Everett, Benjamin J. Richolson and J. Sidney Condit, of counsel.
    Samuel Shope Page, Cecil Page and Johe R. Harrington, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.

3. Damages, § 207*—when instruction is not erroneous. An instruction as to damages stating that the jury may estimate same from the evidence in connection with their own knowledge and experience is not necessarily erroneous; especially where the record does not show the elements of damages as claimed in the declaration, the defendant having contended that there was no evidence in support of certain elements.


author: Me. Justice Baume

text:
    Frank W. Rieder and Edith K. Rieder, Defendants in Error, v. Levi B. White et al., Plaintiffs in Error.
    Gen. No. 17,804.
    (Not to be reported in full.)
    Abstract of the Decision.
    Reformation of instruments, § 15

      —when deed may he reformed. Where a deed does not express the actual agreement between the parties, there being an omission of a provision to the effect that the conveyance was made subject to all unpaid taxes and assessments levied against the land, such omission is a mistake of fact, and a court of equity will reform the deed by inserting the omitted provision.

      Error to the Superior Court of Cook county; the Hon. Martin M. Gbidley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Bill in equity by Frank W. Bieder and Edith K. Bieder against Levi B. White, Benson Landon and Arthur C. Bachrach for the reformation of a deed and to enjoin a suit at law. From a decree for complainants, defendants bring error.
    Benson Landon, for plaintiffs in error.
    Beach & Beach, for defendants in error.

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

   Me. Justice Baume

delivered the opinion of the court.


text:
    John S. Huey and Lloyd H. Kirkland, Plaintiffs in Error, v. Herman Frank, Defendant in Error.
    Gen. No. 17,852.
    1. Frauds, statute of, § 85

      —what is effect when Tease is not written. Where a person leased certain property but such lease was void as being within the statute of frauds, the promise of the lessee to pay the lessor any loss which such lessor might sustain by reason of the lessee’s failure to take the property was without consideration.
    2. Frauds, statute of, § 94*—what may Be recovered when contract is void. Where a lease of certain property was void as being within the statute of frauds but the lessor paid out certain money for lettering window shades, telephone and switch board services, upon the faith of such lease and at the request of the lessee such money paid was recoverable.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and judgment here.
    Opinion filed October 15, 1913.
    John S. Huey and John A. Brown, for plaintiffs in error.
    Herman Frank, pro se.

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

   Mr. Justice Baume

delivered the opinion of the court.

In April, 1910, John S. Huey and Lloyd Gr. Kirkland, being the lessees of a suite of offices in the Chicago Title & Trust Company building, entered into negotiations with Herman Frank relative to the subletting to him. of two rooms for the term of three years from May 1,1910, at a rental of $80 a month. Frank agreed verbally to execute a written lease upon such terms, and, being about to leave the city temporarily, instructed his law clerk, Harry J. Lurie, to consummate the agreement with Huey and Kirkland. The latter prepared and executed a written lease in duplicate which was satisfactory to Lurie, who on April 2, 1910, signed Frank’s name thereto and retained a duplicate copy of the lease, which he subsequently delivered to Frank. Upon his return to Chicago, prior to May 1, Frank frequently inspected the rooms which were then being redecorated, and until the 20th of May evidenced an apparent intention to occupy the same. During that time Frank also directed Huey and Kirkland to incur necessary expense on his account and for his benefit in providing telephone facilities and service and for lettering and window shades. On May 21st Frank told Huey and Kirkland that he had been notified by his former lessor that he had held over, under his former lease, which expired May 1st, and would be required to remain in the rooms then occupied by him; that he did not want Huey and Kirkland to lose anything by reason of his failure to take the rooms; that he desired them to re-rent the rooms as soon as possible and would pay them any loss they might sustain if they would release him from further liability under the lease. Huey and Kirkland, after diligent efforts, of which Frank was kept advised, succeeded in procuring a tenant for one of the rooms for a term beginning September 1, 1910, and for the other room for a term beginning January 1, 1911.

On January 2, 1911, Huey and Kirkland submitted to Frank an itemized statement of the amount claimed to be due them for rent to January 1, 1911, and for mvey expended by them at his instance and request, af - deducting therefrom the amount received as rent fo one of the rooms from September 1,1910, the total an. unt claimed as due being $538.40. Upon Frank’s disclaiming any liability therefor and his refusal to pay the same, Huey and Kirkland brought suit against him in the Municipal Court to recover said amount, and a trial by the court without a jury resulted in a finding in favor of Frank and a judgment against Huey and Kirkland in bar of their action and for costs, to reverse which judgment they prosecute this writ of error.

The affidavit of merits filed by defendant in error sets up the following defenses: First, that the purported lease between the parties is void, as being in contravention of the statute of frauds, in this, that it was not signed by defendant in error nor by any agent of his lawfully authorized in writing; second, that defendant in error did not agree to pay any amount for telephone service, and did not request plaintiffs in error to procure any lettering to be done, or to purchase any window shades; third, that the rooms purported to be let were not ready for occupancy until June 1, 1910.

While the evidence bearing upon the questions of fact involved is conflicting, the statement here before made sets forth the facts as the same are established by a preponderance of the evidence, and such statement is in accord with the finding of the trial court upon the facts. The judgment of the trial court was predicated solely upon a holding that as the lease in question was within the statute of frauds it was inadmissible in evidence and void, and the promise of defendant in error to pay to plaintiffs in error any loss they might sustain by reason of his failure to take the rooms if plaintiffs in error would release him from further liability upon the lease, was without consideration. In other words, the trial court held that the release of a contract within the statute of frauds, where, as in the case at bar, such statute is pleaded, is not a sufficient consideration for a new promise.

Plaintiffs in error insist that a contract within the statute of frauds is voidable merely and not void, unless the party sought to be bound pleads the statute as a defense to an action predicated upon such contract, and that, as the lease in question was merely voidable, their agreement to release defendant in error therefrom was a sufficient consideration for his promise to pay any loss they might sustain by reason of his failure to take the rooms. As defendant in error has here interposed the defense of the statute of frauds, a discussion of the question sought to be raised would appear to be purely academic.

In 2 Page on Contracts, sec, 738, it is said:

“Whether an oral contract within the statute of frauds is of such validity that its release is a valuable consideration for a new promise based thereon which is not itself within the statute, is a question on which authorities are in conflict. On the one hand the release of a contract is a valuable consideration, and in analogy a release of rights under an oral contract within the statute of frauds has been held a valuable consideration for a new contract. So where an oral contract within the statute has been broken, and a note has been given in payment of damages caused by such breach, the note has been held to be on a valuable consideration.”

In Anderson v. Best, 176 Pa. St. 498, cited in support of the text, the action was brought upon an account stated, and a recovery was further promised upon the settled rule in that State that a moral obligation is a sufficient consideration to support an express promise. Merchant v. O’Rourke, 111 Iowa 351, and Stout v. Ennis, 28 Kan. 706, support the text.

In 2 Keed on Statute of Frauds, sec. 679, it is said:

“A more difficult question arises when we try to determine whether an oral promise within the Statute of Frauds is a good consideration for a subsequent express promise. On the broad question the weight of authority appears to be that it is not.”

In Silvernail v. Cole, 12 Barb. (N. Y.) 686, and North v. Forest, 15 Conn. 406, it was held that a promise to pay money to be released from a contract within the statute is without consideration.

In Kraak v. Fries, 18 L. R. A. 142, it was held by the Supreme Court of the District of Columbia that a discharge from a verbal contract within the statute was not a sufficient consideration to support another engagement; that as no action could have been maintained against the defendant for any breach of that contract, a discharge from it was of no use to him. To the same effect are Hall v. Soule, 11 Mich. 494, and Weatherley v. Choate, 21 Tex. 272.

In this State the doctrine is settled that a verbal contract within the statute cannot be enforced in any way, either directly or indirectly, and cannot be made either the ground of a demand or the ground of a defense. McGinniss v. Fernandez, 126 Ill. 228; Leavitt v. Stern, 159 Ill. 526. See also Richardson v. Richardson, 148 Ill. 563.

The trial court properly held that the promise of defendant in error to pay to plaintiffs in error any loss of rent they might suffer by reason of his failure to take the rooms was without consideration. There is, however, another phase of the case, a consideration of which demands a reversal of the judgment.

It is well settled that while in an action at law a party cannot recover on a contract within the statute of frauds he may recover for money paid, property delivered or services rendered in accordance with, and upon the faith of, such a contract. Quinn v. Stark County Tel. Co., 122 Ill. App. 133, and cases there cited.

It was agreed by defendant in error in the court below that plaintiffs in error paid out certain amounts for lettering, for window shades and for telephone and switchboard services. The proof shows that these several amounts, aggregating $38.40, were paid out by plaintiffs in error at the special instance and request of defendant in error. To deny to plaintiffs in error a judgment for this amount would be to permit defendant in' error to pervert the statute of frauds into an instrument of fraud.

The judgment of the Municipal Court is reversed and judgment will be entered in this court in favor of plaintiffs in error and against defendant in error for $38.40 damages and costs of suit.

Judgment reversed and judgment here for plaintiffs in error for $38.40 and costs of suit.


text:
    The Wisconsin Lime & Cement Company, Appellee, v. Herman C. Lelivet, Appellant.
    Gen. No. 17,881.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 39

      —when acceptance is necessary. TJnr.ar Negotiable Instruments Act, §§ 125, 131, J. & A., |f 7765, 7771, no recovery can be had upon a written order of a subcontractor on a contractor directing him to pay a specified sum of money to a material man when such order, or bill of exchange, is not accepted by the contractor. 0 • •

      Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action "by the Wisconsin Lime & Cement Company against Herman C. Lelivet on contract. From a judgment for plaintiff for one hundred and seventy-five dollars, defendant appeals.
    F. W. Balcome, for appellant.
    Rice & O’Neil, for appellee.

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

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

   Mr. Justice Baume

delivered the "opinion of the court.

2. Novation, § 1 —what constitutes. . A novation exists where' a contractor refuses to pay an order drawn upon him by a subcontractor in favor of a material man, but -subsequently pays half of the claim of the material man in consideration of a waiver of lien and agrees to pay the balance of the claim at ax certain time.


text:
    Michael Gliatto, Appellee, v. William Dobritz et al., on appeal of William Dobritz, Appellant.
    Gen. No. 17,907.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gbidley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Bill in equity in nature of creditor’s bill by Michael Gliatto, the judgment creditor of Christian Dobritz, against Christian Dobritz, William Dobritz and Joseph E. Baumruck to set aside a conveyance of certain real estate from Christian Dobritz to William Dobritz as having been made to hinder, delay and defraud appellee in the collection of his judgments. Upon the hearing before the chancellor, a decree was entered setting aside said conveyance as against appellee, subjecting the real estate to the lien of appellee’s judgments, and appointing a receiver to collect the rents of the premises and apply the same in payment of said judgments. William Dobritz alone appeals from this decree.

      Abstract of the Decision.
    1. Fraudulent conveyances, § 65

      —when consideration for conveyance is not material. "Where evidence shows that a conveyance was made for the express purpose and with the fraudulent intent of both grantor and grantee to defeat the collection of judgments against the grantor, it is immaterial whether the grantee paid a valuable and adequate consideration for the property.
    2. Fraudulent conveyances, § 155*—what is effect of fraudulent conveyance. A fraudulent conveyance is valid and binding as between the parties, and it is not error to set aside such conveyance as to one judgment creditor alone.
    3. Appeal and error, § 366*—what will he considered on appeal. A contention that certain property is exempt from execution, as a homestead, will not be considered when not raised in the court below.
    Theo. Proulx, for appellant.
    Joseph E. Ryan and Alanson C. Noble, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    United States Fidelity & Guaranty Company, Appellee, v. Maryland Casualty Company, Appellant.
    Gen. No. 17,938.
    1. Indemnity, § 11*—liability on indemnity insurance contract. No action lies on an insurance contract of indemnity against loss or damages from liability, as distinguished from a contract of indemnity against liability merely, when no loss has in fact accrued to the insured.
    2. Indemnity, § 20*—who may sue on employer’s indemnity contract. An injured employe of insured or any other third party cannot maintain action on an indemnity insurance contract since no privity exists between the parties.

      3. Indemnity, § 14

      —when surety on appeal "bond entitled to indemnity. Where an employer’s indemnity insurance company in prosecuting an appeal for the insured procured a guaranty company to sign an appeal bond for the insured on its representations that it was carrying the liability of the insured, held, that though the guaranty company cannot recover from the insurance company for loss sustained by it in being compelled to pay the judgment upon an implied promise of the insurance company to hold it harmless, a recovery would be sustained upon the ground of estoppel.
    Appeal from the Municipal Court of Chicago; the Hon. Abnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    J. F. Dammahh, Jr., for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.

On November 30,1905, the Maryland Casualty Company (hereinafter called the casualty company), through its general agents in Chicago, issued to the Collins Coal Company (hereafter called the coal company) of Indiana a policy of employer’s liability insurance, whereby the casualty company agreed, fór a period of twelve months, to indemnify the coal company (the assured) “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death, accidentally suffered while this policy is in force, by any employe or employes of the assured while at the places described in the Schedule, in and during the prosecution of the work described in the Schedule, subject to” certain conditions.

Conditions “C,” “D,” “E” and “F” of the policy are as follows; “Condition C. Upon the occurrence of an accident the Assured shall give immediate written notice thereof, with all the information obtainable at the time, to the Company’s Home office or to the Company’s authorized agent. If a claim is made on account of such accident the Assured shall give like notice thereof with full particulars. The Assured shall at all times render to the Company all co-operation and assistance in Ms power.

“Condition D. If thereafter any suit is brought against the Assured to enforce a claim for damages on account of an accident covered by this policy, the Assured shall immediately forward to the Company’s Home Office every summons or other process as. soon as the same shall have been served on him, and the Company will, at its own cost, defend such suit in the name and on behalf of the Assured unless the Company shall elect to settle the same or to pay the Assured the indemnity provided for in Condition A hereof.

“Condition E. The Assured shall not voluntarily assume any liability, nor shall the Assured, without the written consent of the Company previously given, incur any expense or settle any claim, except at Ms own cost, nor interfere in any negotiation for settlement or in any legal proceeding; except that the Assured may provide at the time of the accident such immediate surgical relief as is imperative. Whenever requested by the Company, the Assured shall aid in securing information and evidence and the attendance of witnesses and in effecting settlements and in prosecuting appeals. The Assured shall furnish bonds in order to take any suit to the higher courts, when required, and the Company will pay the premiums, if any, to corporate surety companies'.

“Condition F. No action shall lie against the Company to recover for any loss under tMs Policy unless it shall be brought by the assured for loss actually sustained and paid in money by the Assured in satisfaction of a judgment after trial of the issue; nor unless such action is brought within ninety (90) days after such judgment by a court of last resort against the Assured has been so paid and satisfied. The Company does not prejudice by this condition any defenses to such action it may be entitled to make under this Policy.”

On March 26,1906-, John DePugh, an employe of the coal company, was injured, and thereafter brought suit against the coal company in the Putnam Circuit Court in Indiana to recover damages for the injuries sustained. The coal company reported the injury and the institution of the suit to the casualty company, which, under the terms of the policy, assumed the defense of the suit. DePugh recovered a judgment in the Circuit Court against the coal company for $4,000, from which judgment the casualty company elected to prosecute an appeal to the Appellate Court, and to this end an appeal bond in the sum of $5,500 was procured to be executed by the United States Fidelity & Guaranty Company (hereinafter called the guaranty company) as surety. During the pendency of said appeal in the Appellate Court the coal company became insolvent and thereafter said judgment of the Circuit Court against said coal company was affirmed by the Appellate Court. Upon the affirmance of said judgment by the Appellate Court- demand for the payment thereof was made upon the guaranty company by DePugh, who, thereafter, instituted suit against said guaranty company to recover the amount of said judgment, and such proceedings were had that said DePugh recovered judgment against said guaranty company, as' surety on said appeal bond, for $4,725.95, which judgment was paid and satisfied by the guaranty company. Notwithstanding notice and demand by the guaranty company upon the casualty company to pay said judgment recovered by DePugh against said coal company and to save the guaranty company harmless in respect to its liability on said appeal bond, and to defend said suit brought against it by DePugh, and to pay the judgment recovered against it in said suit, the casualty company refused to comply therewith and denied any liability therefor. This suit was then instituted in the Municipal Court by the guaranty company against the casualty company to recover the amount so paid by the guaranty company, together with its necessary costs and expenses, and upon a trial by the court without a jury there was a finding and judgment against the casualty company for $5,234.29, to reverse which judgment said casualty company prosecutes this appeal.

It is conceded that the liability of the coal company to DePugh was covered by the policy issued by the casualty company, and that, if the coal company had paid and satisfied the judgment recovered against it by DePugh out of its own funds, the casualty company, would be required to reimburse the coal company; but it is insisted that no liability exists against the casualty company in favor of the guaranty company, as surety upon the appeal bond, for money so paid and expended by it.

A right of recovery in the case is predicated, first, upon an implied promise and undertaking by the casualty company to indemnify and hold the guaranty company harmless; second, upon an express promise and agreement by the casualty company so to do; and, third, upon an application of the doctrine of estoppel m pais, whereby the casualty company is estopped from asserting that it was not absolutely and unconditionally liable to the coal company and obligated to pay the final judgment against it upon its affirmance.

It is indisputably established by the evidence that the appeal from the judgment of the Circuit Court against the coal company was prosecuted upon the insistence and by the direction of the casualty company, and that the casualty company procured from the guaranty company the formal application required to be made to it by the coal company to become surety upon the appeal bond, and that the casualty company paid the premiums upon said bond to the guaranty company, but the evidence relating to the negotiations between the parties, which resulted in the execution of the appeal bond by the guaranty company, as surety, is conflicting.

William G-. Cress, ah employe of the firm of Conk-ling, Price & Webb, the agents in Chicago of the guaranty company, testified that a day or two before the appeal bond was executed David Reid, manager of the Chicago division of the claim department of the casualty company, came to the office of the guaranty company and inquired if the guaranty company would execute an appeal bond for the coal company; that witness looked up the rating of the coal company and informed Reid that the guaranty company would not sign the bond; that Reid said the case was in the hands of the casualty company and was covered by its liability policy to-the coal company; that witness told Reid that would not do, that the guaranty company would have to have indemnity of some kind; that witness then referred Reid to Mr. Price, a member. of the firm; that Price told Reid that the guaranty company would require the indemnity of the casualty company, to take care of it, in that case; that Reid told Price that the casualty company carried the case and there was no reason why anything should be given; that the claim was covered and would be taken care of by the casualty company and that was all that was necessary; that Price said he would have to have the indemnity of the casualty company in writing.

Fred A. Price testified" that he told Reid that the guaranty company could not sign the bond unless it had a letter from the casualty company showing that it was defending the case and that the case was covered by its policy; that he thought Reid remarked that the casualty company was not accustomed to do that; that Reid said he would bring a letter; that in a little while Reid returned with a letter, and said that the casualty company was behind the case and would take care of it; that the letter was accepted as security to keep the guaranty company harmless in signing the bond; that the bond would not have been executed without the letter; that the formal application for the appeal bond was accompanied by a personal indemnity bond executed by O. S. Eichardson, the president of the coal company; that the general custom of the guaranty company in executing appeal bonds in like cases was to require, in addition, an indemnifying agreement or letter from the casualty company; that he told Eeid that the guaranty company would like to have Eichardson’s indemnity also; that he knew nothing about the financial responsibility of Eichardson.

On behalf of the casualty company David Eeid testified that when the question of collateral indemnity was raised he told Kress and Price that he, as a representative of the casualty company, could not indemnify the guaranty company; that he absolutely refused to do so; that Price asked him if he would write a letter to the effect that the casualty company was carrying the liability for the coal company, and that the case in which the appeal bond was required was covered by the casualty company; that the letter in evidence was written by him in compliance with the request of Price. “

The letter referred to by the witnesses and admitted in evidence is as follows:

‘ ‘ Maryland Casualty Company,
Baltimore
*******
David Eeid,
Manager Chicago Claim Division.
*<•>*****
Chicago, Ill.
June 3rd, 1907.
Conkling, Price & Webb,
New York Life Bldg.,
Chicago, Illinois.

Gentlemen:

This is to certify that we are carrying the liability of the Collins Coal Company, and that the case of John DePngh vs. Collins Coal Co., for which an appeal bond is now required is covered under our policy, and we are defending the case.

Tours truly,
David Eeid,
Manager Chicago Claim Div.”

It may be remarked that the employer’s liability policy here involved is a contract of indemnity as distinguished from a contract which insures directly against liability. The policy indemnifies the coal company “against loss from the liability imposed by law,” etc., and condition “F” of the policy provides that no action shall lie against the insurer to recover for any loss under the policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue.

In Poe v. Philadelphia Casualty Co., 118 Md. 347, it was said by the Court of Appeals of Maryland: “In tracing the history of these policies, it will be found the earlier ones were so worded as to insure employers against liability incurred to their employes for death or injuries resulting from the employer’s negligence; and the courts humanely and rationally held that liability was fixed by the rendition of a final judgment, fiuVl that the casualty companies were liable on their contract, though the employer had not actually discharged his liability by payment.”

The distinction which exists between the two classes of such insurance contracts is well stated in American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562, as follows: “The difference between a contract of indemnity and one to pay a legal liability is that upon the formed an action cannot be brought and a recovery had until the liability is discharged; whereas upon the latter the cause of action is complete when the liability attaches.”

In this case, the casualty company claims exemption from liability primarily upon the ground that no loss accrued to the coal company, because the judgment in favor of DePugh against the coal company was not in fact paid and satisfied by the coal company.

Where, as here, the contract is one of indemnity against loss or damage from liability and not one of indemnity against liability merely, the great weight of authority is to the effect that in the absence of proof of waiver or estoppel no action either at law or in equity upon the contract will lie against the insurer by an injured employe of the insured, or by any other third party. Recovery in such cases was denied upon the ground that no loss had in fact accrued to the insured, and upon the further ground that no privity existed between the insurer and such third party. Frye v. Bath G. & E. Co., 97 Me. 241; Connolly v. Bolster, 187 Mass. 266; Cushmcm v. Carbondale Fuel Co., 122 Iowa 656; Allen v. Gillman, 137 Fed. 136, affirmed in 76 C. C. A. 265, 145 Fed. 881; Poe v. Philadelphia Casualty Co., 118 Md. 347; Kinnan v. Fidelity & Casualty Co., 107 Ill. App. 406.

In City Trust, etc., Co. v. Haaslocher, 101 App. Div. (N. Y.) 415, cited and relied upon by the guaranty company, the contract involved provided that the insurer should save the insured harmless from judgments, and the case is, therefore, to be distinguished from the case at bar.

As the casualty company was neither.the principal on the appeal bond nor obligated, by the terms of its liability policy, to pay the judgment against the coal company, it may well be doubted whether a right of recovery can be predicated upon an implied promise or undertaking by it to indemnify and hold the guaranty company harmless, and we are clearly of the opinion that the competent evidence in the record fails to show an express promise or agreement by it so to do.

In view of the fact that a right of recovery herein may be properly sustained upon the ground of estoppel, we deem it unnecessary to extend this opinion by a further discussion of the other grounds argued and relied upon by the guaranty company to sustain the judgment.

The evidence heretofore recited tends to show, and the trial court was warranted in finding, that the guaranty company was not informed whether the policy issued by the casualty company insured the coal company against liability or against loss from liability; that before the guaranty company would consent to execute the appeal bond as surety, it demanded from the casualty company a statement in writing that the case was covered by its policy to the coal company, and that it was defending-the case; that in response to such demand and for the purpose of procuring the execution of the appeal bond by the guaranty company, the casualty company made and delivered the written statement, in evidence, to the guaranty company, which then executed said appeal bond relying upon the truth of said written statement and in the. belief that the casualty company was obligated to pay the judgment recovered by DePugh against the coal company upon its affirmance.

The letter of July 3rd, 1907, specifically represents that the casualty company was then “carrying the liability of the Collins Coal Company” in the case of John DePugh, in which the appeal bond was required. The statement by the casualty company that it was carrying the liability of the coal company, if it needs any interpretation, is equivalent to saying that the casualty company had, by the terms of its policy, assumed the liability of the coal company in the DePugh ease, or that the casualty company had insured the coal company against liability in the DePugh case. The appeal bond having been executed by the guaranty company upon the faith of such representation by the casualty company, the casualty company is estopped from asserting that it was not bound to pay the judgment upon its affirmance.

It is said that the evidence shows that the guaranty company refused to execute the hond upon the faith of the verbal statements by Reid to the effect that the case was covered by the policy, and that the liability policy to the coal company covered the ease. True, but the guaranty company demanded something in writing, and the writing represents that an obligation existed to pay the judgment.

The second proposition of law submitted by the casualty company was modified by the court and held as modified. Counsel says: “There is no quarrel with the correction, in so far as it is a true interpretation of the contract.” The proposition, as submitted, merely sought to procure a judicial interpretation of the contract, and it is conceded that as held by the court the proposition truly interprets the contract.

The third proposition, submitted by the guaranty company and refused by the court, was sufficiently covered by the fourth proposition held by the court. The fifth proposition, submitted by the guaranty company, was properly refused because it was not applicable to the admitted facts in the case.

The conversations between Reid, the agent of the casualty company, and Richardson, the president of the coal company, were not relevant to the issues involved between the present parties, and were improperly admitted in evidence, but in our view of the case the action of the trial court in admitting such conversations in evidence becomes unimportant.

Evidence of the methods which obtained, in certain instances, in the conduct of like business between the guaranty company and other casualty companies was properly excluded upon the cross-examination of the witness, Kress. The usual and customary method of conducting like business was disclosed by the testimony of the witness, Price. •

There is no substantial error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    Sophia Berg, Appellee, v. Charles Fisher, Appellant.
    Gen. No. 17,992.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles, § 2

      —when evidence sufficient to sustain verdict for injuries. In an action for personal injuries sustained by plaintiff by being struck by an automobile while attempting to cross a street after alighting from a street car, the evidence held, sufficient to support a verdict for plaintiff. »
    2. Automobiles, § 3®—when evidence not conclusive as to contributory negligence. In action for injuries resulting from being struck by an automobile, testimony concerning statements of plaintiff that it' was as much her fault as it was the defendant’s, held, not conclusive against plaintiff on question of contributory negligence.
    3. Automobiles, § 3*—admissibility of evidence. Refusal of court to strike out the testimony of a witness relative to the automobile and the speed at which it was traveling, held, not error though he was unable to positively identify the auto as the one belonging to the defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Harry Higbee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Sophia Berg against Charles Fisher to recover for personal injuries sustained by plaintiff by being struck by an automobile belonging to defendant. From a judgment in favor of plaintiff for one thousand dollars, defendant appeals.
    Pain, Campbell & Kasper, for appellant; Charles E. Pain, of counsel.
    Frank A. Rockhold and Francis X. Busch, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Jennie Shaffner, Appellee, v. B. M. Shaffner, Appellant.
    Gen. No. 18,015.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Divobce, § 121

      —when statute of limitations no bar to payment of alimony. A decree providing for the payment of alimony in instalments is a continuing order as to which the statute of limitations does not run until the last instalment becomes due.
    2. Divobce, § 121*—sufficiency of answer on attachment for failure to pay alimony. Sworn answer of divorced husband on attachment for contempt, held not to show his inability to pay fifty dollars per month alimony where it shows his living expenses are extravagant and does not state his earnings in his business.
    3. Divorce, § 121*—burden of proving inability to pay alimony. Divorced husband cited to show cause for failure to pay alimony has burden of proving his inability to pay.
    Appeal from, the Circuit Court of Cook county; the Hon. Look-wood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed;
    Opinion filed October 15, 1913.
    Statement of the Case.
    Attachment for contempt sued out by Jennie Shaffner against B. M. Shaffner for failure of defendant to pay certain instalments of alimony. From an order committing’ defendant for contempt, defendant appeals.
    B. M. Shaffner, pro se.

    P. H. Bishop, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Jennie Shaffner, Appellee, v. B. M. Shaffner, Appellant.
    Gen. No. 18,016.
    (Not to be reported in full.)
    Abstract of the Decision.
    This case is controlled by the decision in Shaffner v. Shaffner, Gen. No. 18,015, ante, p. 450.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Appeal by B. M. Shaffner from an order committing him from contempt for failure to pay alimony.
    B. M. Shaffner, pro se.

    P. H. Bishop, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.


author: Mb. Justice Baume

text:
    Claude B. Davis, Defendant in Error, v. Max J. Strauch and Wilhelmina Strauch, Plaintiffs in Error.
    Gen. No. 18,079.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.

      Abstract of the Decision.
    1. Appeal and bebop, § 866

      —what abstract must contain. A purported abstract which is a mere index of the record is wholly insufficient to present questions for review.
    2. Appeal and ebbob, § 787*—when bill of exceptions is necessary. A bill of particulars and certain motions and affidavits which appear in a record can only he properly preserved hy a hill of exceptions.
    Statement of the Case.
    Action by Claude B. Davis, trading as Claude B. Davis & Company, against Max J. Straueh and Wilhelmina Straueh. From a judgment for plaintiffs for two hundred and eight dollars, defendant brings error.
    Daniel V. Harkin and Dillard B. Baker, for plaintiffs in error.
    Gteorge M. Stevens, for defendant in error.

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

   Mb. Justice Baume

delivered the opinion of the court.


text:
    Maplewood Colliery Company, Plaintiff in Error v. Otto F. Siebenmann, Defendant in Error.
    Gen. No. 18,114.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William E. Devbb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action of replevin by Maplewood Colliery Company against Otto F. Siebenmann. From an alternative judgment requiring the delivery of the property to defendant or in default thereof that defendant recover two hundred and seventy dollars and costs, plaintiff brings error.
    Abstract of the Decision.
    1. Continuance, § 36

      -when properly denied'. Where a motion for a continuance is properly denied and a second motion prays for continuance upon the same ground, such second motion should also be denied, since to; grant it would be to permit an amendment of the first motion.
    2. Appeal and errob, § 1035*—when assignment of error is necessary. Where there is no assignment of error because of the action of a court in proceeding to trial without a rule on the plaintiff to reply to several pleas filed, such plaintiff cannot object to ‘ such action.
    3. Replevin, § 159*—when alternative judgment is proper. An alternative judgment for defendant is proper where a plaintiff replevied property which a defendant had performed work on and as to which work plaintiff was indebted to defendant for.
    Chiperfield & Chiperfield, for plaintiff in error.
    William Mannhardt, for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Ferdinand W. Jaros, Plaintiff in Error, v. Edward Johanning and A. M. Wertzberger, Defendants in Error.
    Gen. No. 18,155.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1913.

      Abstract of the Decision.
    Trial § 46

      —what acts of judge are improper. In an action for legal services where the evidence was closely conflicting, held that the action of the trial judge in reading the defendant’s affidavit of merits to the jury before instructing them was prejudicial error, since the reading of such affidavit unduly emphasized the defendant’s view of the controversy the plaintiff’s statement of claim not having been read.
    Statement of the Case.
    Action by Ferdinand W. Jaros against Edward Johanning and A. M. Wertzberger for legal services. From a judgment for plaintiff for $3.50, plaintiff brings error.
    F. W. Jaros, for plaintiff in error.
    Oscar M. Lumby, for defendants in error Edward Johanning.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Herman L. Wolff for use of Barnett Zollo, Defendant in Error, v. Ernest M. Cross, Plaintiff in Error.
    Gen. No. 18,160.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912..
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Herman L. Wolff, for use of Barnett Zoilo, against Ernest M. Cross, trading as E. M. Cross & Co., for damages. From a judgment for plaintiff for $366.92, defendant brings error.
    Abstract of the Decision.
    1. Appeal and eeror, § 1414

      —when finding of court will not he sustained. In an action for damages caused hy the failure of a defendant to deliver certain eggs according to quality, held that the controlling question of fact was whether defendant’s salesman substituted different eggs for those actually purchased by plaintiff, and the evidence being conflicting such finding was not unwarranted.
    2. Damages, § 179*—what is proper evidence of damage. In an action for damages caused hy the failure to deliver eggs to plaintiff according to quality, evidence of a witness interpreting the report of an inspection of the eggs by an employe of the Chicago Butter and Egg Board was incompetent, but harmless, when the report verified the witness’ statements.
    Kruse & Peden and R. C. Merrick, for plaintiff in error.
    Charles J. Herman, for defendant in error; Douglas C. Gregg, of counsel.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    William Buhs, Plaintiff in Error, v. William B. Austin, Defendant in Error.
    Gen. No. 18,273.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by William Buhs against William B. Austin to recover certain rents collected by the latter. From a judgment for defendant, plaintiff brings error.

      Abstract of the Decision.
    1. Mortgages, § 738

      —when owner of equity of redemption is entitled to rent. While an owner of an equity of redemption is entitled to the rents and profits accruing from the premises during the redemption period, such rents cannot be recovered by him from an assignee, when applied to the payment of expenses incurred in the management of the premises, as authorized by the instrument assigning the rent.
    2. Assumpsit, action of, § 1*—what is nature of action of assumpsit. The action of assumpsit for money had and received is equitable in its nature and lies to recover money which in equity and good conscience the defendant ought to refund. Such a recovery would not be equitable where a defendant assignee of rents has expended the money collected for necessary repairs to permit a plaintiff to realize a profit upon his property.
    Rathje & Wesemann, for plaintiff in error.
    John A. Swanson and Aaron Heims, for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    M. Cohen, Defendant in Error, v. Joe Davis, Plaintiff in Error.
    Gen. No. 18,279.
    Judgments, § 106*—when default is proper. Under Municipal Court rule 17, as to filing an affidavit of merits, a judgment by default is properly rendered against a defendant upon his failure to file a sufficient affidavit of merits.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.

      Behjamin E. Cohen, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

In a case of the fourth class, brought in the Municipal Court by defendant in error against plaintiff in error to recover thirty-nine dollars, plaintiff in error, having failed to file an affidavit of merits or defense, was defaulted for such failure, and thereupon judgment was rendered against him for the amount claimed.

It is insisted by plaintiff in error that “a defendant in the Municipal Court in a fourth class case cannot be defaulted, except for the want of a written appearance. ’ ’

A somewhat similar question was involved in Mc-Whinney v. Gill, 167 Ill. App. 582, and determined adversely to the contention of plaintiff in error.

Buie 17 of the Municipal Court, in force at the time the judgment in question was rendered, provides that the affidavit of merits required to be filed thereunder shall in fourth class cases be filed with the defendant’s appearance and that if the defendant fails to file an affidavit of merits, such as is required by the rules of said court, the plaintiff shall be entitled to default and judgment upon his affidavit of claim on file in said cause, or upon such further evidence as the court may require.

There is no merit in the contention of plaintiff in error. Upon the failure of plaintiff in error to file a sufficiént affidavit of merits or defense, a judgment by default was properly rendered against him. It is not claimed by plaintiff in error that he has a meritorious defense to the action. The judgment is affirmed.

Judgment affirmed.