text:
    Daniel D. Healy, Receiver, Appellant, v. Defiance City Bank et al., Appellees.
    Gen. No. 16,967.
    1. Receiverships—-when right of receiver to maintain action cannot he questioned. Appellees who have filed no cross errors and who are asking the Appellate Court to affirm a decree granted in their favor, cannot urge that a receiver who instituted the action is not entitled to maintain the same.
    2. Corporations—status of pledged stock fraudulently issued. Stock in a bank fraudulently issued without having been paid for is void and an innocent pledgee thereof for value acquires no greater rights than the owner of such stock had.
    3. Corporations—liahility for fraudulent issuance of stock. A' bank is not liable to the purchaser or pledgee of stock from an officer of such bank who has conspired with other officers of such bank to have such stock issued to him without having been paid for.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded.
    Opinion filed April 7, 1911.
    Statement by the Court. On February 15, 1906, Daniel D. Healy was appointed receiver of the Bank of America, which is a state bank organized under the laws of Illinois. His appointment was made in the snit of Kavanagh v. The Bank of America, by the Superior Court of Cook county. He proceeded with his duties and succeeded in realizing upon the assets sufficiently to pay all the debts of the bank, and all of these debts were paid except a claim of the Jackson Trust & Savings Bank, before the commencement of these proceedings, which were brought on January 19,1907. 1
    It is conceded that the claim of the Jackson Bank was adjudicated in its favor by the Supreme Court (Pryor v. Bank of America, 240 Ill. 100), and that this claim has now been adjusted, so that whatever fund is in the hands of the receiver is to be distributed among those who .are found to be entitled to the same as shareholders or as pledgees or assignees of shareholders.
    The present proceeding was instituted by the receiver, who made as defendants to his bill all stockholders, all subscribers to stock and all pledgees and assignees of stock, and certain creditors. Among the defendants are the City National Bank of Cairo, Enterprise Savings Bank of Cairo, Teutonia Bank & Trust Company of New Orleans, William T. Alden and Carl R. Latham, appellees herein. The three banks claim as pledgees of stock said to belong to F. E. Creelman and W. T. Alden and C. R. Latham as assignees of stock from the said P. E. Creelman.
    Among the other defendants to the proceeding were Wilton B. Martin and Joseph Beifield, appellants in two appeals now pending in this court, being general numbers 15,934 and 15,455. The Beifield claim arises out of stock issued to J. V. Pierce, hereinafter referred to, and Martin’s on account of stock issued to Abner Smith, also hereinafter referred to.
    The bill was filed by the receiver, pursuant to an order from the chancellor of the Superior Court under whose instructions he was acting, and by it the receiver undertook to collect stock subscriptions or to cancel stock where collections could not be made, to settle equities among the stockholders and creditors, and asked for a decree distributing the fund in tbe receiver’s hands to the parties to whom it should be found it properly should be distributed.
    The bill alleged that the bank was organized in the month of November, 1905, by Abner Smith, Jerome V. Pierce, and Gustav F. Sorrow; that the organization of the bank was conceived in a conspiracy; that the purpose of Smith, Pierce and Sorrow was so to organize the bank that they should-have control thereof, without in reality paying anything into the bank upon their stock subscriptions; that Smith subscribed for 1,250 shares, Pierce for 125 shares, and Sorrow for 125 shares; that F. E. Creelman subscribed for 250 shares and agreed to pay therefor the sum of $50,000, the bank being organized on the basis of $250,000, divided into 2,500 shares of $100 each, each subscriber to pay $200 per share for his stock, $100 of which should go into the surplus account of the bank; that in order to deceive the Auditor of the State of Illinois the four men made fictitious payments upon their subscriptions ; that Smith borrowed approximately $25,000 from the State Bank of Chicago and deposited the same to the credit of the Bank of America on December 1, 1905; that on December 4th, the day the bank opened, he drew out $15,000 of this deposit upon the note of Mary Dufficy, who was a domestic servant in his employ, and a few days later $10,000 upon another note of the same woman, both of which notes were absolutely valueless; that Sorrow paid $4,000 on his subscription, and on the day the bank opened drew it out of the bank; that Pierce deposited $20,000 on his subscription, which he procured temporarily from an uncle, and a few days after the bank opened loaned the money back to his uncle on a note, and thereby abstracted from the capital of the bank what he had paid in; that this note of the uncle has never been collected; that Creelman entered into the conspiracy with Smith, Pierce and Sorrow, and a few days before the bank opened deposited $10,000 of his subscription, and later $40,000 in the form of a check, which it is alleged was a mere pretended and fictitious payment, Creelman being immediately paid back the $40,000; that Creelman became a stockholder of the bank at the solicitation of Pierce and Sorrow, and with the understanding that he (Creelman) should have a line of credit of $150,000, and that Creelman afterwards, by means of worthless drafts and securities, obtained from the bank over $180,000. The facts thus alleged as to the fraud practiced by the four conspirators are said by the Supreme Court to have been established in the criminal case brought against them, which case was, however, dismissed as to Creelman. People v. Smith, 239 Ill. 91.
    The bill then prays that the subscribers who have not paid their subscriptions be decreed so to do, or in case of insolvency that the stock be cancelled, whether in the hands of such subscribers or of third persons as security or otherwise, so that such holders shall not participate in the assets of the bank upon the distribution thereof.
    To the bill the appellees filed answers; the appellee, City National Bank of Cairo, setting up in substance that it held certificates No. 180 and No. 183 for 25 shares each, issued to and endorsed by Creelman and by him delivered to said bank as collateral security for notes aggregating $10,000, upon which Creelman was endorser, dated January 12, 1906, and discounted that day by the City National Bank; the appellee, Enterprise Savings Bank, setting up that it held certificates No. 182 and No. 221 for 25 shares each, issued to and endorsed by Creelman and by him delivered to said bank, as collateral security for notes aggregating $10,-000, upon which Creelman was endorser, dated January 12, 1906, and discounted that day by the Enterprise Savings Bank; the appellee, Teutonia Bank & Trust Company, setting up that it held certificates No. 219 and No. 220, each for 25 shares, issued by F. E. Creelman and by him assigned and delivered to it, and certificate No. 218 for 25 shares, issued to Helen M. Creelman and by her assigned and delivered to it, and certificate No. 217 for 25 shares, issued to Mary K. Creelman and by her assigned and delivered to it, and certificate No. 216 for 25 shares, issued to Charles S. Creelman and by him assigned and delivered to said bank, all of said certificates, aggregating 125 shares, having been so assigned and delivered to and held by said Teutonia Bank & Trust Company as collateral security to a loan made to F. E. Creelman February 15, 1906, upon his promissory note of that date, for $20,000.
    The appellees, "William T. Allen and Carl R. Latham, set up that they purchased certificate No. 181 for 25 shares of the stock of the bank from Frank C. Patten, for value.
    All of the appellees denied in their answers any knowledge or notice that the subscription of Creelman to the stock of the Bank of America was unpaid, or that the bank was insolvent or embarrassed, and alleged that they received and accepted said certificates in good faith, in the ordinary course of business, and paid full value therefor, and are entitled to the rights of holders thereof, as pledgees and owners, respectively, and to share in the funds in the receiver’s hands for distribution, and denied that complainant was entitled to the relief prayed, or any part thereof.
    Replication being filed to these answers the cause was referred to the master for separate hearing upon the bill of complaint, the answers of the appellees and the replications thereto; the issues and hearing thereon being thus severed from other issues as to the rights and interests of other defendants to the bill—all the stock issued to Creelman upon his .subscription being held by the appellees as pledges and owners, respectively— and the only issues involved in the particular appeal now being considered grow out of Creelman’s subscription to stock of the bank, and stock issued thereon.
    The master reported in favor of the receiver; that the organization, of the bank was fraudulent, and that the Creelman stock, even in the hands of innocent pledgees was void for non-payment by the original stockholders, and that the same ought to be cancelled on the return of the notes or the securities, and that no claim to share in the fund in the receiver’s hands yet to be distributed can properly be based on the Creelman stock.
    The court entered a decree overruling the master and finding that the appellees were entitled to participate in the fund in the receiver’s hands for distribution, on the basis of the Creelman stock aforesaid, and from this decree the receiver has perfected an appeal to this court.
    D arrow, Masters & Bailey, for appellant.
    Alden, Latham & Young and John D. Hood, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

The appellees in this case insist that the receiver may not maintain this suit because, as they assert, he does not represent and cannot have adjudicated the rights of stockholders, individually as such, and may not have a decree canceling the stock, as prayed for in his bill. We think their objection comes too late. The decree of the court below is in their favor; they have filed no cross errors, and are asking the court, as we understand it, to affirm the decree so entered below. In our judgment, it would have been much better if the court, instead of authorizing the receiver to bring an independent action, had directed him to bring into the proceeding in which he was appointed all of the defendants now before the court in this proceeding, by a petition or otherwise, so that the court in the one proceeding could have entered a decree settling all ■rights of the parties to the fund in the hands of the receiver.

We have now before us three appeals from two different chancellors, who apparently hold diverse views as to the principle of law which should govern the court having before it the duty of the distribution of the assets. 1

In the present appeal it is claimed by the appellees that the evidence shows that Creelman was not a party to the so-called conspiracy of Smith, Pierce and Sorrow, but was dealing with them independently and in his own interest. The master found against the appellees on this issue, and his finding, in a measure at least, is justified by the Supreme Court in People v. Smith, supra. The Superior Court, however, in its decree, did not pass upon the question. The court found that the appellees, with the exception of Alden and Latham, were holders as pledgees of stock certificates which were issued on account of the Creelman subscription; that no part of the indebtedness secured by the certificates had been paid; that Messrs. Alden and Latham had purchased a certificate for 25 shares of stock issued in the name of Creelman from one Prank C. Patten, and had paid the said Patten $750 therefor; that appellees had no knowledge or notice in any manner that shares of stock of the Bank of America were not fully paid, and that each of them received and accepted the stock so assigned and delivered to them in absolute good faith and in the ordinary course of business, and that appellees are entitled to share in the distribution of the fund in the receiver’s hands after the payment of the creditors in the proportion that the shares so held by them bear to the total number of shares of the bank outstanding.

We have carefully examined the record in this case, also the records in the two cases heretofore referred to, namely, the appeal of Martin and the appeal of Beifield, the arguments in the three appeals being heard together, and find that the fraud and conspiracy charged were so fully established as to the stock issued to Smith, Pierce, Sorrow and Creelman as to render such stock, at least in the hands of these four men and each of them, absolutely void.

The question therefore now turns upon the effect such finding has upon persons claiming under them as pledgees, assignees or otherwise. In dealing with this question, we treat the. matter as we think it would have to be treated if, instead of bringing an independent suit, the receiver had brought into the case in which he was appointed, all of these parties defendant, by a petition in which he sought the direction of the court as to how he should distribute the assets in his hands. As receiver, he is acting for all parties in interest, and it is his duty to distribute the assets only among the bona fide stockholders, and before the final distribution he must necessarily ascertain who such bona fide stockholders are. '

The stock certificates bore upon them the language ordinarily used—“Transferable only on the books of said bank in person or by attorney on the surrender of this certificate.”

The master found as follows: “It appears from the evidence that the Bank of America kept a stock transfer book and that none of the stock herein in question was ever transferred on the books of the bank to the claimants herein; nor does any application for such transfer appear to have been made at any time by any of the said claimants.”

The Supreme Court of this state, in Rice v. Gilbert, 173 Ill. 348, 352, stated:

“Authorities may be found sustaining the position that a delivery of a certificate of stock as security, endorsed or with power of attorney, but not transferred on the books of the corporation, is not valid against lien creditors of the pledgor, even under the language of the statute; but the current of decisions in the commercial states of the Union is to make shares of stock as nearly negotiable as possible, and we are of the opinion that such was the intention of the Legislature in enacting the amendment to Section 52, supra. The phrase ‘sold or pledged’ should not receive a construction which will include a portion of stock transaction coining under the head of collateral securities, but not others, where there has been a delivery of the stock certificate.”

In the same case the court held also:

"’“As between the parties to the pledge and the corporation a different rule prevails, and until the transfer is made on the books of the company a holder of a certificate of stock cannot assert a legal title against the company.”

The case of Rice v. Gilbert arose as between an execution creditor of the pledgor and the pledgee of stock. The case before us is as to the relative rights of stockholders whose stock has been paid for in full—indeed paid for at twice its par value—and creditors and assignees of a man to whom stock was issued in pursuance of a conspiracy and on which but a portion of the par value was actually paid. Creelman, if he had continued to hold the stock, would certainly not have been permitted to share in the funds to be distributed by the receiver, because the stock in his hands was void ab initio. The stock continues to stand in his name or in the name of members of his family to whom he caused it to be issued, and by decree of court in a proceeding brought against him the stock was ordered can-celled. Appellees, however, were not parties to that suit, and it is not claimed by the receiver that the decision in that case is binding upon the appellees.

It is urged by appellees that, because the law of this state provides that before stock shall be issued by a bank it shall have been fully paid for, the purchasers or pledgees taking stock from persons to whom it has been issued have the right to assume that the stock is valid and fully paid. This contention, which under ordinary circumstances might be well founded, leaves out of the question the fraud which was perpetrated upon the bank by the officers of the bank and Creelman in issuing the stock. Fraud is said to vitiate everything. If the certificates of stock in the hands of Creeknan were void because of the fraud which he had committed upon the corporation, can they he given vitality by the transfer of them by Creelman to others ? We think not.

It is insisted that as the officers of the hank wrongfully issued the stock, a purchaser or pledgee has a claim against the corporation in an action of tort. Among other cases cited to us in support of this proposition we are furnished the following: N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Bruff v. Mali, 36 N. Y. 200; Kisterbock’s Appeal, 127 Pa. St. 601; Tome v. Parkersburg Branch R. R. Co., 39 Md. 36.

It is claimed that this right of action extends even to the purchaser from or pledgee of the wrong-doing officer of the hank, and in one of the appeals before us, namely, that of Joseph Beifeld, heretofore referred to, the court is asked to decree that the bank is indebted to Beifeld in the amount due him because of such tortious act, and that the receiver should he directed to pay out of the funds in his hands the amount so found. If such is the law, then all of the purchasers from the four conspirators hereinbefore referred to, and the creditors of such conspirators who have the stock issued to the conspirators as collateral to notes, should have similar decrees. The anomalous result then follows that the innocent stockholders who paid $200 per share for their stock direct to the hank get nothing, and the comparatively small amount now in the hands of the receiver would he paid to the purchasers from and pledgees of the four guilty conspirators. ' quasi-negotiable. The general consequence of this doctrine is that whoever takes them takes them subject to the equities and burdens which attend them, as in the case of the purchase of any other non-negotiable paper and that, although ignorant of such equities and burdens, his ignorance does not relieve the paper therefrom or enable him to hold it discharged therefrom.” 2 Thompson on Corporations, Sec. 2353.

“Certificates of stock are not negotiable instruments. They have sometimes been said to have a quasi-negotiability, hut this phraseology throws but little light upon the real character of the transferability of stock.” 1 Cook on Corporations (5th edition) 52.
“It is laid down in numerous cases that stock certificates are not negotiable either in form or character, though as heretofore seen they are often said to be

In First National Bank v. Drew, 191 Ill. 186, it is said:

“The vendor of a chose in action, by its sale and transfer to the vendee, and the receipt of the consideration therefor, impliedly warrants that it is genuine and not a forged instrument, and that he is the owner thereof and authorized to transfer the title thereto. Subject to these exceptions only, the doctrine of caveat emptor applies to the purchaser thereof, and if the vendee desires a further warranty he should exact of the vendor a special guaranty before he pays his money, and not rely upon the warranty raised by implication of law.” 1

The appellant insists that the rec®rd shows that the appellees knew at the time they acquired the stock in pledge or purchased it, that the issuance of it was tainted with fraud. He points to the fact that at the time the appellees Alden and Latham bought the shares which they hold the receiver was already in possession, appointed under a bill charging conspiracy and fraud, and that Messrs. Alden and Latham are shown by the record to have known of this condition of things.

Appellant also urges that the other appellees took the shares which they hold under circumstances which at least should have put them upon inquiry.

Without commenting further upon this claim, we hold that the appellees and others who acquired their stock from Greelman, Smith, Sorrow or Pierce should not be allowed to participate in the distribution of the fund in the hands of the receiver.

The decree will be reversed, with tbe suggestion tbat tbe Superior Court direct that tbis case be consolidated with tbe case of Kavanagh v. Bank of America, in which tbe receiver was appointed, and tbat a decree be entered distributing tbe assets in accordance with tbe principles laid down in tbis opinion.

Decree reversed and cause remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Charles W. Finch, Plaintiff in Error, v. Nellie Finch, Defendant in Error.
    Gen. No. 15,432.
    Separate maintenance—when wife entitled to. Even though the separation may have been induced by the fault of the wife, her right to support from her husband is not lost unless such fault was sufficient to entitle the husband to a decree of divorce.
    Divorce. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    William P. Black, for plaintiff in error.
    Edward J. Kelley, for defendant in error.
   Mr. Presiding Justice Baker

delivered tbe opinion of the court.

This is an appeal by tbe complainant, Charles W. Finch, from a decree of tbe Circuit Court dismissing, for want of equity, bis bill for a divorce from bis wife, Nellie Finch, on the ground of cruelty, and decreeing, under tbe cross-bill of defendant, that complainant pay to her $25 per month for tbe maintenance of tbe two children of tbe parties until they became of age, and tbat be pay her $15 per month for her own support.

We cannot, on the evidence in this record, say that the chancellor, who bear'd the witnesses, might not properly find that the defendant was not guilty of such acts of cruelty towards her husband as entitled him to a divorce, and therefore the decree dismissing the bill for want of equity will be affirmed.

The parties were married June 2, 1893, and lived together until April 19,1906, when the husband left the house in which he and his wife and children were living, and since that time has not lived with his wife. In Jones v. Jones, 124 Ill. App. 201, we held that where a husband had left his wife and was living apart from her, the wife was entitled to separate maintenance, notwithstanding she might not have been without fault in the domestic difficulties which preceded the separation, where the fault of the wife was not such as to entitle the husband to a divorce.

It would serve no useful purpose to review the evidence. The husband left his wife and filed against her a bill for divorce on the ground of cruelty, which we have held was properly dismissed for want of equity. In accordance with the rules stated in Jones v. Jones, supra, we hold that although the wife may have been at fault in the domestic difficulties which preceded the separation, the chancellor might properly find that she was living separate and apart from her husband without her fault, and therefore was entitled to a decree against him for support and maintenance.

The decree will be affirmed.

Affirmed.


author: Me. Peesiding Justice Bakee

text:
    City of Chicago, Plaintiff in Error, v. James Payne, Defendant in Error.
    Gen. No. 15,891.
    1. Criminal law—spiritualism defined. Spiritualism may be defined as a belief in the power of some departed spirits to communicate with the living by means of mediums.
    2. Ordinances—prohibiting fraudulent practices in the name of spiritualism construed. The ordinance in question in this case, held, not intended to declare a belief in, or tbe practice of, spiritualism as unfounded, but to be aimed at fraudulent and deceptive practices in tbe name of spiritualism.
    Error to tbe Municipal Court of Chicago; tbe Hon. EDwin K. Walker, Judge, presiding. Heard in this court at tbe October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    Statement by tbe Court. This writ of error is prosecuted to reverse the judgment of the Municipal Court of Chicago quashing the amended complaint filed against the defendant, James Payne, and discharging the defendant. The complaint as amended charges that the defendant “did unlawfully-hold or give a public meeting, gathering, circle or seance in the name of Spiritualism and therein practice or permit to be practiced fraud or deception, thereby fraudulently obtaining from the said Stephen J. Barry one dollar of his money, lawful currency of the United States, and did then and there obtain money and other property from certain persons whose names are to affiant unknown, by fraudulent devices and practices, in the name of spirit mediumship, in that the said James Payne then and there pretended to the said persons that for the consideration aforesaid he would hold communication with spirits of deceased friends and relatives of the said persons, and did then and there pretend to hold communication with such spirits in violation of section 2 of an ordinance passed by the city council of the said city of Chicago on the 16th 'day of December, 1907, in violation of sections 2 and 3 of an ordinance passed December 16, 1907.”
    The sections of the ordinance of the city of Chicago referred to in the complaint are as follows:
    “Section 2. That any person or persons who shall obtain money or property from another by fraudulent devices and practices in the name of or by means of spirit mediumship, palmistry, card reading, astrology, seership, or like crafty science, or fortune telling of any kind, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than twenty-five ($25) dollars nor more than one hundred ($100) dollars for each offense.
    Section 3. That any person or persons who shall hold or give any public or private meeting, gathering, circle or seance of any kind in the name of spiritualism, or of any other religious body, cult or denomination, and therein practice or permit to be practiced fraud or deception of any kind, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than twenty-five ($25) dollars nor more than one hundred ($100) dollars for each offense.”
    George H. White, for plaintiff in error; Henry M. Seligman, of counsel.
    Vail & Vette, for defendant in error.
   Me. Peesiding Justice Bakee

delivered the opinion of the court.

For the purposes of this case spiritualism may be defined as a belief in the. power of some departed spirits to communicate with the living by means of mediums. Such belief is maintained by a very large number of persons in this and other countries.

We do not think that the common council of the city of Chicago, by section 2 of the ordinance in question intended to declare such belief unfounded and make the act of a professed medium, who claimed to hold intercourse with departed spirits, for reward, a misdemeanor punishable by fine, nor that by section 3 of •the ordinance the council intended to make the holding of a meeting in the name of spiritualism, at which a professed medium claimed to hold intercourse with departed spirits, a misdemeanor punishable by fine. Frauds in connection with professed communications from departed spirits have often been detected and exposed—frequently by spiritualists themselves. An account of typical frauds of that class may be found in D. D. Home’s Lights and Shadows of Spiritualism.

So far as they relate to spiritualism, the object and purpose of section 2 is, in our opinion, to make the obtaining of money or property from another by means of fraudulent devices and practices in the name of spirit mediumship a misdemeanor, and the object and purpose of section 3 is to make the holding of a meeting in the name of spiritualism and therein to practice or permit to be practiced fraud or deception, a misdemeanor.

The only charge in the complaint that the defendant used or employed any fraudulent practice or device, or that he practiced or permitted to be practiced any fraud or deception, is the charge that he pretended that he would hold and that he did hold communication with departed spirits. This is not, in our opinion, sufficient to charge the defendant with a violation of either section of the ordinance, and the complaint was therefore properly quashed and the defendant discharged.

The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Mary Rudnik, Appellee, v. Jacob Lamberg, Appellant.
    Gen. No. 15,666.
    1. Bastardy—what evidence competent. Held, -that the declarations of the wife of the defendant, made in the presence and hearing of the defendant, are properly admitted.
    . 2. Bastardy—when conviction set aside. Evidence of promiscuous relations with men other than the defendant at or about the time of conception, excludes the inference of paternity by the defendant and calls for a reversal of a judgment of conviction.
    3. Municipal Court—propriety of oral instructions. The statute which authorizes oral instructions by municipal judges applies to prosecutions for bastardy.
    Appeal from the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 13, 1911.
    Peter Sissman, for plaintiff in error.
    John E. W. Wayman and F. L. Barnett, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court. „

This is an appeal by the defendant from a judgment in a bastardy proceeding rendered in the Municipal Court on the verdict of a jury.

We think the court did not err in admitting in evidence the declarations of the wife of the defendant made in the presence and hearing of the defendant. Cannon v. The People, 127 Ill. 507.

The contention that the court excluded evidence tending to show that defendant was impotent is not sustained by the record.

The Municipal Court Act provides that judges of that court may give oral instructions. No reason is perceived why this provision is not applicable to bastardy cases.

The bastard child was born November 24,1908. The relatrix testified that she had intercourse with the defendant in February and March, 1908; that she did not have intercourse with any other man during either of these months, and that the defendant was the father of her child. Lindholm and Nyquist, witnesses called by the defendant, each testified that he had intercourse with the relatrix in February, 1908. The defendant testified that he never had intercourse with the relatrix, and she contradicted the statements of Lindholm and Nyquist.

This is a part of the instruction to the jury:

“You may take into consideration whether the complaining witness had intercourse with other men at or about the time of conception, and if so, whether the defendant, notwithstanding such intercourse with other men, is the father of the child. The mere fact that the complaining witness had intercourse with other men at or about the time in question does not necessarily determine the question in favor of the defendant. If the complaining witness had intercourse with other men at or about the time in question, then the jury are still to determine whether the defendant is the father of the child, and if from all of the evidence in the case, you find that notwithstanding the intercourse with other men, the defendant is the father of the child, then your verdict should be against the defendant.”

It was, we think, reversible error to give this instruction. It cannot be construed, as contended by appellee, as submitting to the jury the question whether the relatrix had intercourse with Lindholm or Nyquist about the time in question, but by it the jury were told that if she did have intercourse with other men at or about the time in question, that notwithstanding such intercourse the jury might find that the defendant was the father of her child. Taking all of her testimony together, the testimony of relatrix that the defendant was the father of her child, was but the statement of an inference from the facts stated by her, that she had intercourse with him and only with

him about the time the child was begotten, and there is no evidence tending to prove any other fact as the basis of such inference. If she had intercourse with one other than the defendant about the time the child was begotten, there was in her testimony nó basis for the inference stated by her, or from which the jury might properly draw the inference that the defendant was the father of her child. For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Laura Wheatley, Appellee, v. Albert P. Mracek and Henry C. Gettert, Appellants.
    Gen. No. 16,785.
    1. Pleading—when vice of multifariousness waived. The vice of multifariousness is waived if not raised by either bill or answer.
    2. Statute oe Fbauds—when defense comes too late. The defense that a contract set out in a hill is within the Statute of Frauds comes too late when first raised on appeal—such defense not having been raised by demurrer, plea or answer.
    3. Appeals and ebeoes—when not part of record. Affidavits filed do not become part of the chancery record unless contained in a certificate of evidence.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed April 13, 1911.
    Harry A. Biossat, for appellants.
    W. L. Martin, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by Mracek and Gettert from an order denying their motion to dissolve an injunction for the following reasons:

“1. There is no equity on the face of the bill.
(a) The bill is multifarious in seeking relief against Mracek for specific performance of a contract and also in seeking relief against Gettert in seeking to set aside a judgment for possession recovered by said Gettert against complainant.
(b) The bill seeks specific performance of a contract which is not signed by Mracek and hence is within the Statute of Frauds, there being no allegations of part performance.
“2. The affidavits filed by the defendants show that there is no equity in complainant’s bill upon the merits.”

The objection that the bill is multifarious was not raised either by demurrer or answer, and will be considered waived. Gilmore v. Sapp, 100 Ill. 297.

The defense that the contract set out in the bill is within the statute of frauds was not interposed by demurrer, plea or answer, and the objection comes too late when raised for the first time in this court. Boston v. Nichols, 47 Ill. 353; Browne Stat. of Frauds, sec. 568.

The bill is verified. Neither the answer nor the amended answer is verified. There is no certificate of evidence and the affidavits filed and copied into the transcript are therefore not a part of the record. Lange v. Heyer, 195 Ill. 420.

We think that the motion to dissolve the injunction was properly denied, and the order appealed from will be affirmed.

Affirmed.


text:
    Henry Aevermann, Jr., Appellee, v. Maria Rizelt et al., Appellants.
    Gen. No. 17,211.

      Receivebships—when appointment without bond erroneous. In a foreclosure proceeding it is error to appoint a receiver without a bond being required of the complainant, the order of appointment not reciting that in the opinion of the court a bond ought not to be required, and this notwithstanding the trust deed being foreclosed provided for the appointment of a receiver.
    Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Abthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 13, 1911.
    Joseph Kohn, for appellant.
    Morse Ives, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Complainant filed a bill in the Superior Court to foreclose a trust deed in the nature of a mortgage, and the court appointed a receiver of the mortgaged premises without requiring the complainant to give a bond. Prom the order appointing such receiver, Moritz Ertl, one of the defendants, appealed.

The Act of May 15,1903, relating to the appointment of receivers, provides; “that before any receiver shall be appointed the party making the application shall give bond, etc., * * * 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.” In Ayers v. Steamship Co., 150 Ill. App. 137, and Watson v. Cudney, 144 id. 624, it was held that to authorize or make valid an order appointing a receiver without bond, the order must state that iu the opinion of the court a receiver ought to be appointed without such bond. The order appointing the receiver in this case does not state that in the opinion of the court a receiver ought to be appointed without the complainant giving bond. We see no reason to alter or modify the views expressed in the cases above cited.

We do not think that the fact that the trust deed sought to be foreclosed provided that a receiver should be appointed in case of a proceeding to foreclose, gave the court the right to appoint a receiver without bond unless the court was of the opinion that a receiver ought to be appointed without such bond.

The complainant made the appellant Ertl a defendant to the bill, and this gave to him the right to appeal from the order appointing a receiver without showing his interest in the mortgaged premises.

The order of the Superior Court appointing a receiver will be reversed.

Reversed.


text:
    Thomas Cusack Company, Appellee, v. Tony Mann and Tagney & Hudson Company, a corporation, Appellants.
    Gen. No. 17,239.
    1. Basements—remedy to prevent interference with enjoyment of. Injunction is a proper remedy to protect against an interference with tke enjoyment of an easement or a burden or servitude in the nature of an easement.
    2. Injunctions—when lie without notice to restrain interference with enjoyment of easement. Held, that under the facts set up, the complainant in this case was entitled to an injunction to prevent interference with the enjoyment of an easement to place bulletin boards upon the wall of a certain building.
    Bill for injunction. Appeal from the Circuit Court of Cook

      county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 13, 1911.
    Louis A. Heile and Philip Clarkson, for appellants.
    John S. Hummer, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendants from an order for a temporary injunction, granted without notice, restraining the defendants from preventing' the complainant from placing on the east wall of a certain building bulletin boards, in accordance with provisions of a contract between complainant and Beringer & Hutter, the lessees of the building. The bill sets out the contract between complainant and Beringer & Hutter, which, under the cases of Willoughby v. Lawrence, 116 Ill. 11, and Gunning Co. v. Cusack, 50 Ill. App. 290, gave to complainant a right in the wall which, if not an easement, was a burden or servitude in the name of an easement, for the term of six years ¡from June 10, 1908. The bill avers that in August, 1910, Beringer & Hutter assigned said lease to defendant Mann, who had full knowledge of said contract between complainant and Beringer & Hutter and assumed the obligations thereof; that in October, 1910, complainant took down its bulletin board from said wall for the purpose of placing new advertisements thereon, and Mann refused to permit complainant to replace said bulletin board, and entered into some arrangement with the defendant, the Tagney & Hudson Company, whereby said Company placed a bulletin board on said wall and since has maintained the same; that said Company, when it entered into said arrangement with Mann, had notice of complainant’s rights and interest in the premises.

The grounds of reversal urged are, that the “bill discloses no equity,” and “that the injunction should not have been granted without notice.”

That injunction is a proper remedy to protect against an interference with the enjoyment of an easement or a burden or servitude in the nature of an easement, was decided in Willoughby v. Lawrence, supra.

We think that on the facts stated in the bill the complainant was entitled to an injunction.

The affidavit accompanying the bill states that there then was on the premises in question no such evidence of complainant’s rights under the contract of June 10, 1908, as would give notice of such rights, and that if notice of an application for an injunction was given, the defendants, or one of them, would in all probability enter into a contract in regard to the space on said east wall with some person who might have no notice, actual or constructive, of complainant’s rights and interest in the premises, and thereby complainant might lose the benefit of any injunction which might subsequently be issued on notice, and be unable to obtain the relief sought by its bill.

In Edwards v. Haeger, 180 Ill. 99, it was held, that in order that an easement shall be binding on a subsequent purchaser, the right of servitude must have existed upon the premises, or the marks of the burden been open and visible. In this case the affidavit states, in effect, that there was at the time of the filing of the bill no sign of servitude or marks of the burden of servitude on the premises. On the facts stated in the affidavit, therefore, a purchaser of the rights of the defendants in the premises would take such rights freed from such burden or servitude.

We think it appears from the affidavit that the complainant was entitled to an injunction without notice, and the order granting a temporary injunction will be affirmed,

Affirmed.


author: Mr. Justice Brown

text:
    The People of the State of Illinois, Defendant in Error, v. Robert E. Cantwell, Plaintiff in Error.
    Gen. No. 15,221.
    1. Appeals and errors—when hill of exceptions may he considered. A bill of exceptions in the Municipal Court if tendered within the statutory time may be considered on review although not approved until after such time.
    2. Assault and battery-—when indictment sufficient. An indictment charging assault and battery may be sufficient without the use of the word “unlawful.”
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    James T. Brady and George W. Plummer, for plaintiff in error.
    John E. W. Wayman and John L. Hopkins, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error was found guilty by a jury in the Municipal Court of assault and battery and fined $75 and costs. The witnesses in the case are not in accord on the exact details of the affair, which culminated in a blow by the plaintiff in error that knocked down and broke the nose of a baseball umpire named Kerin, but there is nothing in the record throwing the least doubt on the fact that the blow was given in anger and wholly without legal justification. Beyond this there was evidence for the State quite sufficient to enable a jury to form a further belief that the act was without provocation or. warning and inspired by resentment at a decision unpopular among the partisans of one baseball team in a match just played.

The penalty was by no means unduly severe for the offense.

Counsel for the People claim that the bill of exceptions in the case cannot be considered. They say that it was not “approved” within the time allowed by law. It was “tendered” in time and we are of the opinion expressed by the Branch Appellate Court of this District in Banker v. Miller, 148 Ill. App. 182, that this is sufficient.

But the objections urged by plaintiff in error to the judgment are not forceful to our mind. The information we deem sufficient. Assault and battery is sufficiently charged, and so is unlawfulness. The use of the word “unlawful” is not necessary.

There were no material errors in the rulings of the court on evidence or in the instructions.

The conviction seems to us to have been justifiable and the penalty light, and the judgment is affirmed.

Affirmed.


text:
    Charles A. Bird, Defendant in Error, v. Edwin Thanhouser, Plaintiff in Error.
    Gen. No. 15,394.
    1. Contracts—when evidence of custom competent. Evidence as to the meaning in a business or trade of the words or terms employed, or, indeed, of usages or customs in a trade explaining a contract, held, in this case, not only competent hut necessary to a proper trial.
    2. Contracts—what competent to determine true meaning. It is error to permit a witness to place his meaning upon terms employed by him without showing that the other party to the contract recognized such meaning or that such meaning was the usually accepted meaning in the trade or calling in question.
    3. Depositions-—when motion to suppress not essential. If questions and answers are wholly incompetent, based upon a wrong theory of the law of evidence and the rights of the parties, a motion to suppress is not essential but objections at the trial are proper and in apt time.
    4. Copyrights.—when question of existence pertinent. In a suit for royalties, held, under the evidence, that the question whether the play in question was copyrighted, was pertinent upon the question of liability.
    5. Copyrights—when question of existence may he determined hy state courts. Contracts which have for their subject-matter patents and copyrights are within the jurisdiction of the state courts although the direct question of the validity of the apparent grants may not be.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 13, 1911.

      G. P. Sayers, for plaintiff in error; F. Wm. Kraft, of counsel.
    Adolph Marks, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment involved in this writ of error, which was for $400 and costs, against the plaintiff in error in favor of defendant in error, must be reversed and the cause remanded for errors by the court below in the rulings on evidence.

The issues in the case turned on a contract made, if made at all, by a telegram sent by Bird (plaintiff below) to Thanhouser (defendant below) on or about August 24, 1908, and by the answer thereto by telegram of Thanhouser to Bird of August 25th. Two preceding telegrams between the parties have a bearing also on the case, and the statement of the material questions in it can be best made by prefacing the statement by these four telegrams as they appear in the record, noting, however, that the method by which they are claimed to have been proven will be alluded to hereinafter.

Bird was a theatrical manager in New York. Thanhouser was a theatrical manager in Chicago. A popular play called “The Devil” had been produced in New York, but not in Chicago.

Bird telegraphed Thanhouser:

“New York, August 23rd, 1908.
Can offer you The Dbvil at ten per cent with guarantee of $100.”
Thanhouser telegraphed Bird:
“Chicago, August 21th, 1908.
I want The Devil. You know size of my house. Won’t you please make me the lowest possible figure and advise me by wire if you can ship manuscript and parts at once.”
To which Bird replied by telegraphing Thanhouser: “New York, August 21,1908.
Price four hundred dollars. Ship manuscript and parts at once.”
Thanhouser then telegraphed Bird:
“Chicago, Aug. 25th.
I will take The Devil at four hundred. Express manuscript and parts complete quick, wire when shipped.”

The “manuscript” and “parts” were forwarded by Bird to Thanhouser and duly received by Thanhouser. According to Thanhouser’s testimony he retained them four or five days and then returned them, making no use of them, but producing the play afterward from another manuscript. His production of it was the first in Chicago, but “other versions,” he says, were produced the following week at other theatres in Chicago. His claim in his testimony is that he did not use “the manuscript and parts” because when they reached him he had learned that the play was “common property and could be produced by any one;” that it was, as he otherwise expressed it, an “unprotected” and not a “protected” play, as he thought it was when negotiating for it. We take it that this must mean, as his counsel seemed to indicate during the trial, that he thought it was a copyrighted play, and that it turned out not to he a copyrighted play. That would seem to he, under the circumstances, the meaning of a “protected” play, although, like other things in the evidence which demanded fuller explanation, the matter is left more or less vague and indefinite by tlie testimony.

A witness who was in the “theatrical exchange and play brokerage business” was asked by counsel for the defendant if he knew whether “The Devil” was a copyrighted or uncopyrighted play. The question and the matter involved was ruled irrelevant and immaterial by the court, however, and the question, therefore, which would naturally have followed, whether the play was or was not copyrighted, was not asked. The court expressly ruled, however, that it was not material whether the play was “protected or unprotected,” “copyrighted or uncopyrighted.”

In the deposition of the plaintiff Bird, however, he testified (not responsively to the question asked): “I am the sole owner and holder of the play ‘The Devil’ and all royalties for same are due to me.” This answer was given in the following connection:

Interrogatory 52 was: ‘ ‘ The defendant in this action made a claim that The Shubert Theatrical Company was interested in the play which you leased to him. Do you remember that claim?” Mr. Bird’s answer was, “I do.”

Interrogatory 53 was: “Will you state whether or not the Shubert Theatrical Company had any interest in the play ‘The Devil’?” the answer being: “None whatever. I am the sole owner and holder of the play ‘The Devil’ and all royalties for same are due to me.”

The deposition was taken at the instance of the plaintiff, and no motion to suppress it was made before the trial. Nor was the defendant represented at the taking of the depositions and no cross-interrogatories were filed or objections made to the interrogatories or to their answers at such taking. This particular answer was not objected to on the trial, although others were.

It can, we think, be seen from the foregoing statement that there are many things very undesirably left unexplained in the telegrams which are alleged to form the basis of the claim for which this judgment was rendered. This view is fortified in our minds when it appears that on August 27, 1908, after receiving some telegraphic complaint, the definite nature of which does not appear, Mr. Bird wrote Mr. Thanhouser as follows:

“I was a little bit surprised to receive your telegram this morning. * * * I have sent you the manuscript and parts as per your telegram, and you will find the version proper in every particular. I am perfectly willing to make proper reduction to you provided you use it a second or third week, hut naturally must insist upon the fulfillment of this contract with you as per your telegram

And on August 28th: “It does not matter to me what other productions you use or how often you do so. Tou are expected to use this production within a reasonable time, and when it has been done you are to remit me at this office $400.00.” (The italics are ours.)

What did Bird sell to Thanhouser? The “use” of the manuscript of a play, as the statement of claim says? If so, for how long? Or was the sale an absolute one of a certain manuscript and separated parts? Or was it a “lease” of such manuscript, and if so, on what conditions? Its possession simply, or the “production” of the play?

The telegrams related to a business well understood doubtless by both parties, who were theatrical managers of long experience. Evidence as to the meaning in the business or trade of the words or terms employed, or indeed of usages or customs in the trade, explaining the contract, would have been competent, and was, in our view, necessary to enable this case to be tried properly. "While custom or usage cannot make a contract nor break a contract, it may explain a contract. Lyon & Co. v. Culbertson et al., 83 Ill. 33; Currie v. Syndicate, 104 Ill. App. 165 ; 12 Cyc. 1082 “Customs and Usages.” But no evidence of this sort was offered. The necessity of a construction to be placed on the words used was recognized, but this manifestly improper interrogatory was addressed to the plaintiff when his deposition was taken:

“Will you explain, Mr. Bird, what you meant by the words, ‘Can offer you The Devil’?” (Of course the italics again are ours.)

The counsel for Thanhouser when the deposition was read on the trial objected to an answer to this interrogatory, on the ground that it was improper for the witness to explain what he meant—that being for the jury. The ‘court overruled the objection and the witness answered:

“Can offer,—technically can offer you the manuscript and parts enabling a production of the play called The Devil.”

The next interrogatory was: “Will you state what you meant by ten per cent with a guarantee of four hundred dollars?”

Counsel for defendant at the trial objected to this also on the ground that it was incompetent for the witness to state what he meant. The objection was overruled and the witness answered: “That I was to receive a royalty of ten per cent upon the gross receipts of the house for the week of nine performances or less, and that in any event I was to be guaranteed four hundred dollars. This four hundred guarantee to be paid no matter what the receipts were below four thousand dollars.”

These questions and answers relate to the first of the four telegrams before recited. In relation to the third of those telegrams (the second sent by Bird to Thanhouser), this interrogatory was put to Bird in the deposition:

“State again what you meant by ‘Price four hundred dollars’?”

Counsel for Thanhouser again objected on the same grounds as before. The court overruled the objection, but the question was not answered.

These questions and answers were plainly improper.

It would have been proper to have ascertained whether these various words and terms had a usual, generally understood meaning in the business, limiting or connoting them; but to allow the witness to place his meaning on them and state it to the jury, with no evidence that the defendant knew what that meaning or connotation was, was unjustifiable and might have been misleading and injurious to the defendant by giving the jury to understand that such meaning and connotation were controlling.

Nor do we think that in view of the objection made at the trial, the fact that no motion was made before the trial to suppress the deposition, or these particular questions and answers, prevents the plaintiff in error here from taking advantage of the error.

The questions and answers were not of that kind in which the retaking of the deposition would have remedied the error. Winslow v. Newlan; 45 Ill. 145; I. C. R. R. Co. v. Foulks, 191 Ill. 57.

They were wholly incompetent, based apparently on a wrong theory of the law of evidence and the rights of the parties. They could have been excluded at the trial without damage to the plaintiff’s competent evidence in the deposition, and should have been so excluded. For this reason if no other, the judgment should be reversed and the cause remanded for a new trial. "

But we think further that the refusal of the court to allow the defendant below to introduce any evidence as to whether the play was “protected or unprotected,” “copyrighted or noncopyrighted,” and as to whether the language and terms of the telegraphic correspondence indicated or implied that the play was represented by the plaintiff Bird as a protected play or not, was also erroneous. It is unnecessary to specify here the questions on this subject ruled out by the court, but the proposition was distinctly stated by defendant’s counsel as his claim that “in a contract to put a play on in a theatre the necessary implication is that it is a copyrighted play.”

The court ruled out all questions involving this position. But the answers thereto might have thrown light on the real meaning as understood by both parties to the contract.

The court also ruled out all evidence offered as tending to show that the play in question was unprotected or uncopyrighted, telling defendant’s counsel to save his point.

We think this was error, especially in view of Bird’s own testimony hereinbefore recited, in which he said that he was “the sole owner and holder of the play ‘The Devil,’ and all royalties for same were due to him,” and that Ms meaning in his own telegram was that he could “offer Thanhouser the manuscript and parts enabling a production of the play.”

It is argued by defendant in error that the question of the validity of a copyright being cognizable only by the Federal Courts, the matter of copyright could not be in any way properly brought into the suit at bar, because this would put at issue collaterally the question whether the defendant in error had a valid copyright of the play.

We do not agree with this proposition. Contracts which have for their subject patents and copyrights are within the jurisdiction of the State courts, although the direct question of the validity of the apparent grants may not be. Havana Press Drill Co. v. Ashurst et al., 148 Ill. 115; Pratt & Co. v. Paris Gas Light Co., 155 Ill. 531; Rhodes v. Ashurst, 176 Ill. 351.

It was time enough to refuse evidence concerning the regularity or validity of any copyright grant when the question whether such copyright prima facie existed was proven or disproven, and the further question decided whether the contract by implication referred to a supposedly protected or copyrighted play.

Much complaint, which would have been proper had the objection been taken in time, is made by the plaintiff in error as to the method of proving the telegrams which it is claimed constituted the contract. But in view of the fact that no objection or cross-interrogatories were interposed when the notice was given and the interrogatories filed, and no motion to suppress made before the trial, and that Mr. Thanhouser at the trial made no denial of the versions given, we are not inclined to hold the admission of the secondary evidence as produced erroneous. The objection was not of the nature of that which we have held unwaived.

But for the errors pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Edmonds-Metzel Mfg. Co., Defendant in Error, v. Elmer E. Hall, Plaintiff in Error.
    Gen. No. 15,447.
    Municipal Court—when finding of court not disturbed. A finding by a judge of the Municipal Court in a case tried by him without a jury will not be disturbed on review if substantial justice appears to have been done.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    Harry A. Biossat, for plaintiff in error.
    Walter S. Holden and G. Fred Rush, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment appealed from in this case was rendered by the Municipal Court sitting without a jury, in a suit brought against the defendant (plaintiff in error here) on a promissory note signed by him, on which the amount of the judgment ($456.25) appeared from its face to be due on the date of the judgment.

The defense made below to the suit and insisted on here to reverse the judgment is that the note was without consideration. ¡

We have considered the evidence and find this contention unfounded. It is needless for us to go into the matter of the original negotiations and of the original contract between the plaintiff in error, Hall, and the Edmonds-Metzel Co., touching the manufacture and sale of an article patented by Dr. Hall. We have considered it, but it plainly appears that the outcome of it all was not a “forfeiture” of the contract, but a cancellation of it by mutual agreement after differences had arisen between the parties. A part of that agreement—a part of the settlement of those differences—was the note in question, freely given, as it would appear to us, on sufficient consideration.

It is plain that the note was given in connection with the turning over of much material to the plaintiff in error, which he wanted and would not have been able to obtain from the defendant in error without litigation, at the very least, even if what he deemed his rights were finally established by such litigation. It is rather “duress” than want of consideration he is claiming. We see no evidence of any “duress.” It does not suggest it at all to find that a year after giving the note, Dr. Hall, without complaint, asked and obtained a year’s extension of the note on payment of interest, and at the end of another year paid $50 on account of it, again without complaint.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Laura U. Wickes et al., Appellants, v. Hugh P. Walden et al., Executors, etc., Appellees.
    Gen. No. 15,538.
    1. Administration of estates—how section 70 construed. Section 70 of the Administration Act which bars claims against an estate if not presented within the prescribed time, is to be strictly construed and its operation is not to be extended beyond the letter of the statute as at present construed by the courts of this state.
    2. Administration of estates—what claims not tarred ty section 70. Failure to present against a decedent’s estate within the time fixed by section 70 of the Administration Act, does not bar equity from granting relief as against a claim or claims which consist in an obligation imposed by a decree of divorce to pay taxes, assessments and the cost of repairs on premises conveyed to the wife of such decedent pursuant to such decree under a covenant of such decedent made binding upon his executors and administrators to pay such obligations as they arise during the lifetime of such wife.
    Baker, P. J., dissenting.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed April 13, 1911.
    Rehearing denied April 22, 1911.
    .William P. Black, for appellants; Mason & Mason and C. D. F. Smith, of counsel.
    F. B. Johnstone and Albert L. Hopkins, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal is from a decree sustaining a demurrer to a bill in equity, and on the complainants announcing that they would abide by their hill dismissing the same for want of equity. '

The demurrer was in effect general, although it contained this paragraph assigning a special reason for demurring:

“Said defendants also show that it appears from the face of the bill as amended that the right of action of said complainants, if any ever existed, has been barred by the statutes of the State of Illinois, and especially by Section 70 of Chapter 3 of the Revised Statutes of Illinois, entitled £An Act in Regard to the Administration of Estates’.”

We are called on, therefore, in considering the appeal only to determine whether such a case was stated by the bill in question as entitled the complainants, in view of the statute referred to in the demurrer, to any relief at the hands of a court of équity.

The bill was brought by Laura U. Wickes, Laura Annette Wickes Felt, Florence Lillian Johnstone and Thomas H. Wickes against Hugh P. Walden and William Burry, the Executors of the will of Thomas H. Wickes, deceased.

Laura U. Wickes was before October 31, 1894, the wife of Thomas H. Wickes. On that date she filed a petition for a divorce from him, and at some time thereafter, not exactly stated in the bill in the case at bar (but which must have been before March 6, 1895), the Circuit Court of Cook county granted the divorce on her prayer, and for her husband’s fault. The other complainants, L. A. W. Felt, F. L. John-stone and F. H. Wickes, were the children of Laura U. Wickes and her husband, Thomas H. Wickes, now deceased.

The material allegations of the bill (which was once amended before its disposition) state this case:

In her petition for a divorce besides praying for a divorce for certain causes from said Thomas H. Wickes, Laura U. Wickes asked for alimony and the custody of her three children.

After the decree granting the divorce was entered a supplemental decree concerning alimony was recorded'in the same cause. This supplemental decree, in addition to ordering Thomas H. Wickes to convey in fee simple certain other property to the complainant, Laura U. Wickes, directed him within' three days to execute to Laura U. Wickes and her three children (who are all the complainants in the case at bar) deeds of certain described improved premises, which we may call shortly 3645 Grand Boulevard, which deeds should convey to Laura IT. Wickes a life estate, and to the three children the remainder in fee with the reservation of a life estate to Thomas H. Wickes, the grantor, if he should survive Laura U. Wickes.

The decree then provided that the defendant, Thomas H. Wickes, should pay the principal and interest of a mortgage of $7500 resting on said property, and that he should also “pay all taxes and other governmental charges levied or to be levied on said premises No. 3645 Grand Boulevard during the life of said complainant;’’ that he should “also keep said premises at all times in good tenantable condition and insured in a sum of not less than seventy-five hundred dollars ($7500) in insurance companies of good standing against loss or damages by fire; and that immediately upon the payment of any such taxes or fire insurance premiums he should deliver to said complainant the original receipts therefor or duplicates thereof.”

In accordance with this decree Thomas H. Wickes made and delivered a deed (which was recorded March 6, 1905) of a life estate in 3645 Grand Boulevard to Laura U. Wickes, and another (recorded on the same day) of the remainder in fee (with a reservation of a life estate to himself in case he should survive Laura U. Wickes) to his three children, who are co-complainants with Laura U. Wickes in the present cause; there being a clause also in the deed giving a right of survivorship among the children if any one or more of them should die without issue, and reserving a reversion to the grantor if they all should die without issue.

This deed contained also this covenant:

“And the said grantor for himself, his executors and administrators, hereby covenants and agrees to and with said grantees both jointly and severally and with their respective heirs, executors and administrators both jointly and severally that he will pay all taxes and assessments notv levied or to be levied ■ hereafter on said real estate, all insurance premiums and costs of repairs on and to said real estate and the improvements thereon during the existence of the said life estate of said Laura U. Wickes and during such time after the termination of said life estate as he, said grantor, shall use and enjoy the said premises or receive the rents, issues and profits thereof.”

Thomas H. Wickes paid the principal and interest of the mortgage indebtedness on 3645 Grand Boulevard as directed by the decree, and also as long as he lived paid the taxes on said premises and kept them in repair and insured. March 28, 1905, he died, leaving a will which was probated May 10, 1905. He left a large estate, consisting of both real estate and personal property, an estate more than sufficient to discharge all his obligations “whether then due or to become due thereafter” and to pay all legacies and bequests provided for in said will and leave a large surplus, By his will he appointed the defendants, Hugh P. Walden and William Burry, executors of it, and (by the only clause of the will which is set forth in the bill herein except that appointing executors) gave and devised to his executors “all the rest and residue of his estate both real and personal and wheresoever situated.” He directed by the same clause that his executors should convert said real and personal estate into money as soon as practicable without sacrifice, and gave them full power of sale and conveyance of it.

The executors in large measure have reduced to possession the personal property of the said estate and converted it into cash. They have paid all claims against the estate proven in the Probate Court, but have made no distribution of the personal estate. They have in their hands moneys of the estate to the amount of several thousands of dollars.

But although they have known ever since they assumed the duties of executors, of the provisions in the supplemental decree in the divorce proceedings and of the covenant hereinbefore set forth in the deed by Thomas H. Wickes to his three children of 3645 Grand Boulevard, they have refused and now refuse to pay the taxes on said property, and have refused to make repairs on it which are necessary to make the house habitable and preserve it from destructive waste, and have refused to insure it or to pay anything towards insuring it; “in other words,” as the bill says, “said executors have refused to perform any of the obligations imposed upon said Thomas H. Wickes, deceased, by said supplemental decree” (and it might have been added, which by deed he covenanted for himself and his executors to perform), “or advance any money therefor, unless ordered to do so by a decree or order of a court of equity in a proceeding brought for that purpose.”

In consequence of this refusal, a refusal persisted in notwithstanding repeated demands and requests of the complainants, there were unpaid when this bill was filed on April 25, 1908, the taxes for 1905, payable in 1906, and the taxes for 1906, payable in 1907, and the taxes for 1907, payable in 1908. The premises had been sold for the taxes of 1905, and with the penalties and costs the amount necessary for redemption was $215.52. For 1906 the taxes amounted to $165.38, with interest for some months, and for 1907 to $147.61.

Repairs which should have been made before the bill was filed would cost at least $500, and the house ought to be kept insured.

The prayer of the bill is that there may be a decree entered' reviving the proceedings in the divorce suit of Laura U. Wickes against Thomas H. Wickes, now deceased, and making the executors of his will defendants in his stead, “for the purpose of further carrying out the provisions of said supplemental decree in said divorce suit,” and compelling them— as the said Thomas H. Wickes if living could have been compelled—to perform the requirements of said supplemental decree in said divorce proceedings in ■respect to taxes levied on 3645 Grand Boulevard and in respect to repairs upon said premises and insurance thereon.” Such other or further relief as may be appropriate is also prayed.

Disregarding for the present the prayer of the bill and the particular means, if there be any, by which the complainants may be relieved it is obviously true that the bill makes a case which appeals strongly to equitable jurisdiction for some relief.

We may dismiss from consideration the amount which was actually due on the land for taxes for the year 1905 and which was ascertained and fixed long enough before May 10, 1906, to have allowed the complainants to have paid the same and filed a claim in the Probate Court against the estate of Thomas H. Wickes for reimbursement before May 10, Í906. The court agrees in holding that as to said amount, the Administration Statute described in the demurrer is a bar to any relief except from after discovered assets. That statute provides that all demands against the estate of any testator not exhibited within one year from the granting of letters testamentary shall be forever barred unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor, in which case their claims shall be paid pro rata out of such subsequently discovered estate.

But this statute was held to bar any relief in that part of the case stated in the bill, which was independent of any ascertained or ascertainable amount.

Yet here is a woman who was granted a divorce for her husband’s fault. Had she remained his wife she would have been entitled, despite any will he might make, to a considerable share in his large personal estate and to dower in all his real estate. Practically as a part of the decree in divorce an arrangement was ordered by the court by which she was to receive for her life, residence property to be released from all encumbrance and kept free from tax liens and all other charges. Her former husband was during her life to pay taxes, insurance and repairs, and after her death, if she died first, the husband was to have a life estate, still obligated to pay all carrying charges and to hand it over to his three children in fee simple clear of liens or charges, reserving only a reversion in this remainder if the children died without issue.

It is very evident that nothing was farther from the thoughts of the parties, counsel or court, when this arrangement was made, that there was to be read into it a condition that if the husband died before the wife, the important and essential obligations concerning the property, which may be said to have given to it much' of its value to the wife as a settlement of alimony, were to cease.,

This proposition is further confirmed by the covenant made by the husband in the deed, by which, with a promptness which suggests that the arrangement of the supplemental decree may have been of his own seeking, or at least a matter of amicable agreement, he made effective the orders of that decree.

When in that deed he covenanted expressly for himself and his executors and administrators that he or they would pay taxes, repairs and insurance so long as his wife should live and after her death, if she died first, until his three children took the fee simple, it is not conceivable that his intention was that the representatives of his estate, in the event of his dying before his wife, could not be compelled to carry out these agreements for more than a single year by any means whatever.

But this must be the result of the contention of the defendants and the holding of the lower court that no relief is possible under this bill. The obligation is to be considered a claim, and claims are barred after one year from the granting of letters testamentary by a short statute of limitation. Such is the inexorable law, it is claimed, however hard or unjust a situation may thereby arise. The old maxim that there is “no wrong without a remedy” is certainly meaningless in this case, and our jurisprudence but a halting one, if this position is well taken. For there is no way imaginable in which, within a year after the letters testamentary, the taxes and governmental assessments for an indefinite series of years could be determined in amount. They would not be due and it would not be possible to pay them. Nor would the amount necessary for repairs and insurance in the indefinite future be ascertainable or payable.

But, say the defendants, the Supreme Court has in many cases laid down the rule that no claim can be allowed against the estate of a surety before the obligation under a bond has matured, and that “if the statutory period for the filing of claims has expired before the contingency has occurred and. the liability matured, the creditor is remediless as against the estate of the deceased surety.”

We will later consider the cases alluded to, but it seems to be the place here to say that in the opinion of a majority of the court the “claims,” or “obligations” as we prefer to call them, on the executors in this case are not “contingent” in any proper or true sense of that word. They are future as to maturity; they are undetermined and unascertainable in amount in the present or until they become successively due; but they are certain as death itself, with which indeed “taxes” have been justly enough a_ssociated in a common simile as the very exemplification of certainty.

To proceed, however, with the statement of the situation in the case at bar.

After the decree and the deed, by a will which whenever made speaks as of the time of the death of the testator and may be properly supposed to be his deliberate disposition of his property, in view and with full consideration of the provision he had made for an injured wife and his and her children, he leaves a large estate, real and personal, to his executors as residuary legatees, with full power of conversion, sale and conveyance. We are not informed by the bill on what, if any, trusts this devise was made, as we might well have been; but as the bill stands, can it be supposed that this estate was left to them, either for their own use or that of others, except with the burden of providing means for the carrying out of an obligation, judicially determined, solemnly covenanted, and founded in clear and manifest considerations of justice? We think not, and therefore are of the opinion that if where the common law imposes a duty and no other remedy could be shown to exist, a court of common law of full jurisdiction would interfere by mandamus (see Butler, J., in Rex v. Bp. of Chester, 1 Durnford & East. 404; Grose, J., in Rex v. Stafford, 3 Durnford & East. 652), equity, with its more flexible and adaptable machinery—having, moreover, full jurisdiction over the administration of estates and the execution of trusts, and being able to vary its relief in a great variety of directions—can in this case, by suitable decree, adjust the burden by some device of compensation in a lump sum (based on life tables), which will enable the settlement of the estate to be finally made and the executors discharged; or can order segregated and invested a suitable sum, the yearly income of which shall be sufficient to pay the governmental impositions and the other carrying charges involved; or can indeed, if need be, directly decree that the executors shall pay annually these necessary charges, placing upon them the responsibility and risk of settling the estate and disposing of the money in their hands in a manner consistent with the order. We do not, in deciding this appeal from a decree dependent on the decision on the demurrer, deem it necessary to go farther in pointing out methods of relief or whether the particular prayer of the bill for a revival of other proceedings is well made.

The only question actually before us is whether the complainants are entitled to any relief, not how much or its nature. If they are so entitled, the demurrer should be overruled and the defendants ruled to answer. If, then, the defendants should stand by their demurrer, it will be for the court below, if it chooses, nevertheless to hear evidence to determine what relief is possible and appropriate. If the defendants should answer, the cause can take the usual course.

The defendants, however, insist that no relief can be granted because the decisions of the Supreme Court stand in the way, and that there is really no distinction that can reasonably be made on principle between the case at bar and Stone v. Clark, 40 Ill. 411, Snydacker v. Swan Land Co., 154 Ill. 220, Morse v. Pacific Ry. Co., 191 Ill. 356, and Pearson v. McBean, 231 Ill. 536.

Of course, if the defendants are right in this contention, we are not at liberty in this court to allow our opinions on the justice, abstract or practical, of the complainants’ demands, to overrule decisions which are binding on us. But a majority of the court thinks that there are factors in the case at bar sufficient to take it out from the operation of a strict rule laid down in those cases, the operation of which we are not inclined to extend. They have been hereinbefore stated or suggested. The duties and burdens which are claimed here to fall on the executors are neither accrued claims actually due, nor are they contingent ones which may never exist. They are certain, but unascertained and unascertainable in amount. Neither assessments on corporate stock, which it may be presumed may never be made, but which are made in accordance with a contingent power residing in the directors or creditors, implied or expressed in the contract of ownership, which were the matters involved in Syndacker v. Swan Land Company and Morse v. Railway Company, nor the happening of a contingency—which it is to be assumed was not even expected—-provided for in an indemnifying bond, which was the matter involved in Stone v. Clark, nor the setting aside of an assignment of a judgment which had been the consideration of the payment of money, as in Pearson v. McBean, make cases at all like the present in their facts. What was done in these cases in effect was, in the interest of an early settlement of estates, to read into a contingent contract of indemnity or stock ownership a short statute of limitations, which rendered such contract unenforceable a year after the maker died.

We do not think, as we have said, that such a provision can properly be read into the decree or the deed involved in this case.

Nor in any of the said cases existed the question of the obligations enforceable in equity which - executors (who, it may be noted in passing, although qualifying in and regulated by the Probate Court, derive primarily their authority and duties from the appointment and will of the testator) fall under, when they are, either for their own benefit or in trust, residuary devisees of the testator, who has covenanted expressly for them as well as for himself that certain things shall be done annually during the life of another.

The point made by appellees that this bill cannot lie, because as amended it shows that appellants’ proper remedy, if any, is by action at law for breach of covenant, needs no discussion by us.

It is plain that there is no sufficient remedy at law in this case for a continued refusal to pay either the taxes already levied and matured or those undetermined in amount, sure to come in the future in successive years. A specific performance of covenants is often decreed where there is no sufficient, adequate and complete remedy at law.

It is the opinion of the Court that the decree of the Circuit Court in this case, sustaining -the demurrer and dismissing the bill, should he reversed and the cause remanded, with instructions to overrule the demurrer and proceed further with the cause.

Reversed and remanded.

Mr. Presiding Justice Baker dissents.


text:
    City of Chicago, Defendant in Error, v. Huida Riemenschnieder, Plaintiff in Error.
    Gen. No. 15,653.
    Criminal law—what not breach of peace. Held, under the evidence in this case, that the defendant’s conduct, which was induced by the serving of a replevin writ upon her, was not of such a character as to amount to a breach of the peace, and a conviction therefor is reversed.
    Writ of error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed April 13, 1911.
    Daniel L. Cruice and A. S. Langille, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error in this cause was convicted before the Municipal Court of Chicago of “making, aiding, countenancing and assisting in making an improper noise, riot, disturbance, breach of the peace, and diversion tending to a breach of the peace, ’ ’ contrary to an ordinance of the city of Chicago, and fined $10 and costs and committed to the House of Correction until the fine was paid.

It is needless to discuss at any length the evidence in this case or the proceedings therein. Complaint is made that the trial judge unjustifiably refused the request of the plaintiff in error to withdraw her waiver of a jury. It is immaterial whether this was an erroneous abuse of discretion or not. There is no evidence in the case warranting a conviction by either judge or jury.

There being a dispute about the ownership (and apparently the identity) of a dog, which was with Mrs. Riemenschnieder in her own house, a bailiff of the Municipal Court armed, as he claims, with a writ of replevin from that court, which ran against Mr. Riemenschnieder, presented himself at the house, accompanied by the man who claimed to own the dog. Mr. Riemenschnieder was absent. Being asked by Mrs. Riemenschnieder to come when Mr. Riemenschnieder was at home and told when that would be, the officer nevertheless forced his way into the house against her will, followed her to the kitchen, and, because she there took the dog by the collar and in some excitement claimed its ownership, rang for a patrol wagon and a city police officer and had her arrested. Then he took the dog away with him. Following this he made a complaint against Mrs. Riemenschnieder under the ordinance referred to, and swore in it that he made the arrest and that at the time of making the arrest he had reasonable grounds to believe the defendant would escape unless arrested, and that he would have been unable to ascertain her name and place of residence if he had not arrested her on view.

The writ of replevin described was not introduced at the trial and no reason given for its non-production. It is claimed with much force that there is therefore no evidence that the complaining witness had any legal process with him when this event took place.

But it is not necessary to place our decision on any technical defect of proof of this kind. The defendant, by the great preponderance of the evidence, is shown to have done nothing it was not natural and almost inevitable a woman in her situation would do.

The ordinance against “disorderly conduct” was not intended and should not be employed for any such use as it was put to in this case.

The judgment is reversed and the defendant discharged.

Reversed.


text:
    City of Chicago, Defendant in Error, v. Eddie Kline, Plaintiff in Error.
    Gen. No. 15,766.
    1. Appeals and errors—when denial of continuance not considered on review. An error predicated upon a refusal to grant a continuance will not be considered on review where the record does not show the ground upon which the continuance was asked.
    2. Criminal law—when conviction of selling cocaine sustained. Held, under -the evidence in this case, that the conviction of selling cocaine contrary to ordinance was sufficiently sustained by the evidence adduced.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    Harry B. Miller, for plaintiff in error.
    George H. White, for defendant in error; Henry.M. Seligman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error is prosecuted to reverse the action of the Municipal Court of Chicago in finding the plaintiff in error, Kline, guilty of violating the ordinance of the city of Chicago in relation to the sale of cocaine and similar substances except on the prescription of a licensed physician or druggist, and in fining him $200 for the said violation.

A jury was waived by the defendant and the cause tried by the court.

The judgment of the Municipal Court will be affirmed.

The objection that it should he reversed because the record shows that a motion for a continuance was ¿Igfljed (it not even being shown on what ground it was asked), can hardly be seriously urged. Nor is it any more material that the “complaint” stated that the complaining witness saw the offense -committed, and that this statement was not proven. The true question was whether the offense was committed, not whether Officer Carney saw it.

Plaintiff in error however says that there is no evidence that it was committed. There is evidence that one McNally came out of a room belonging to the plaintiff in error with a box of cocaine; that in the room immediately thereafter a man named Bond was found and arrested, who said that he had been left by Kline in charge of the room and had sold the cocaine to McNally; that in the room were many boxes and bottles of cocaine, some sealed and some open, some filled and some partly empty.

The plaintiff in error admitted the ownership of the room and that he left Bond in charge of it; and admitted that the cocaine in it belonged to him, but refused to tell where he got it, why he kept such a large amount in his room, or what he was going to do with it, but contented himself with denying that he authorized Bond to sell any of it.

We think the evidence is sufficient to sustain the conviction.

Affirmed.


text:
    Dominick Rago, Appellee, v. The Village of Melrose Park et al., Appellants.
    Gen. No. 16,799.
    1. Injunctions — when preliminary sustained. Injunctions pendente lite will he granted and continued in doubtful cases until final decree in the litigation if it appears that less harm from this course will result to the enjoined party if he should be finally victorious than would accrue to the complainant from the absence of the injunction if he were the winning party.
    2. Injunctions-—when lie to restrain enforcement of ordinance. An injunction lies to restrain the enforcement of an ordinance not alréady found invalid if it appears that the intervention of equity will prevent a multiplicity of suits.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 13, 1911.
    F. J. Griffen, for appellants.
    Cornelius R. Adams and Frank R. Vosburgh, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The injunction pendente lite from the granting of which this appeal is taken prohibits the village of Mel-rose Park, and its village marshal, with their officers and agents, from prosecuting the complainant, Dominick Rago, and his employes for the violation of an ordinance set out in the bill of complaint “regulating the construction, alteration, repairing and moving of buildings” until the further order of the court.

It appears to us on an examination of the record that there are very serious questions deserving consideration raised in the cause as to the validity of the ordinance and the legality and good faith of the attempted enforcement of it against the complainant.

We do not undertake to pass on those questions in this interlocutory appeal.

It is a familiar principle concerning injunctions pendente lite, that they will be granted and continued in doubtful cases until final decree in the litigation if it appears that less harm from this course will result to the enjoined party if he should be finally victorious than would accrue to the complainant from the absence of the injunction if he were the winning party. Beach on Injunctions, sec. 110; High on Injunctions, section 13; Cornwall v. Sachs, 69 Hun 283.

We think this is such a case and shall affirm the order of the court below.

The question that is raised as to the right of the complainant to maintain a bill to enjoin the enforcement of an ordinance not already found invalid, seems, in view of the allegations of the bill, which must be taken by us as true, to be foreclosed in his favor by the decisions of the Supreme Court in the City of Chicago v. Collins, 175 Ill. 445, and Wilkie v. Chicago, 188 Ill. 444.

The bill in this case asserts “that there are many persons besides the complainant situated in like circumstances and the prosecution of the penalties provisions would result in a multiplicity of suits not only against him, but against many other persons. ’ ’

If this be true the case would seem to fall under the language of the Supreme Court in the Collins case. “The enforcement of a city ordinance may be enjoined in order to prevent a multiplicity of suits at the instance of any person whose interests are impaired by it.”

We do not think that mandamus would furnish such a practicable and adequate remedy in this case, if the complainant’s contentions are sound, as would oust equity of jurisdiction.

The order of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    George H. Kirk, Defendant in Error, v. W. L. Hoffman Co., Plaintiff in Error.
    Gen. No. 15,488.
    Municipal Coubt—when nothing presented for review. If the bill of exceptions does not set out the evidence and does not contain any findings of fact there is nothing which is presented which will enable the Appellate Court to determine whether the trial court correctly applied the law, and an affirmance will be entered, no other rulings being complained of.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    W. J. Lavery, for plaintiff in error.
    J. S. Dudley, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This was a suit brought to recover a balance claimed to be due on a contract for the installation of a heating plant and extras in connection therewith. The cause was submitted to the court, who found for the plaintiff and entered judgment for $89.

The bill of exceptions recites the contract and certain facts, and as to the particular matters in controversy recites, “the defendant introduced testimony tending to show” the boiler smoked, etc., etc.; that “the plaintiff also contended and introduced testimony tending to show” the boiler was set under directions of the defendant and pursuant to ordinances of the city of Chicago, etc., etc. It is not a statement of what the evidence was so that this court can say what was proved or not proved.

It is certified that “the court finds as a matter of law that there was a substantial compliance by the plaintiff with the said contract.” Whether or not the plaintiff performed Ms contract was a question of fact. Whether the “extras” were furnished by the plaintiff in the performance of his contract, or were ordered by the defendant so as to become liable therefor, and as to the damages claimed by the defendant, we are not able to determine from the record. As to these questions in controversy there is no finding of fact by the court whereby we can say that the court erred in the application of the law thereto.

The judgment is affirmed.

Affirmed.