text:
    Alice J. Smith, Appellee, v. Mutual Reserve Fund Life Association, Appellant.
    Gen No. 13,869.
    1. Fraternal benefit society—when member bound by by-laws. A member of an association who agrees in his application or policy to abide by and be bound by subsequently enacted by-laws, is bound by them unless they are unreasonable.
    2. Insurance—power to impose lien upon policy. Held, that under the by-laws of a fraternal benefit society, the power to change by-laws or enact new ones was retained in the society, and that a by-law enacted pursuant to such authority, providing for a reserve or deficiency assessment was valid, and, likewise, that it was valid to make the amount of such assessment a lien against the policies subject thereto.
    3. Accord and satisfaction—what constitutes. A settlement of a claim predicated upon an insurance policy made for a less sum than the face thereof, constitutes an accord and satisfaction, where an honest difference of opinion existed with respect to the amount due and the settlement was effected upon the advice of counsel without any intervention of fraud.
    4. Release—what constitutes, of claim upon benefit certificate. The surrender of a benefit certificate ordinarily operates as a full release and discharge from liability thereon.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed, with finding of fact.
    Opinion filed April 3, 1908.
    Statement by the Court. Alice J. Smith, appellee, was the beneficiary in a life insurance policy for $10,000 issued by the Northwestern Life Assurance Co. May 7, 1899, on the life of Frederick M. Smith, her husband, who died June 21,1902.
    The record shows that on September 1, 1900, the Northwestern Company went out of business, and by contract with the Mutual Reserve Fund Life Association, appellant, transferred its insurance to the latter, and thereby said Smith became insured by the appellant.
    At the time of such transfer there was attached to the policy in question a certain lien certificate for $1,519.70 which reduced the amount payable on the policy to that extent, plus any interest thereon which might remain unpaid at the death of the insured. This lien was placed on the policy with the consent of the insured.
    In the contract between the Northwestern Company and appellant by which the insurance was transferred to appellant it was provided as follows:
    “And each member of said company accepting insurance in said association hereunder agrees to accept and recognize the right of the association to divide its members into classes and fix the amount and rate of premium, assessments or periodical calls for each class without reference to any other class, and to change the same from time to time as the experience of the corporation or of the members of any class so established may require, in accordance with the policies of insurance or certificates of membership and by-laws now in force in said association, or that may be hereafter enacted. ’ ’
    The by-laws of appellant adopted in 1888, and in force at the time the transfer of insurance was made, provided: “This constitution or by-laws may be revised or amended at any annual meeting of the association or at a special meeting of members called for that purpose, by a two-thirds vote of the members present in person or by proxy.”
    At the annual meeting of the appellant association in January, 1901, the members of appellant adopted an amended constitution or by-laws which provides that the amount of any lien on a certificate or policy shall be retained from the amount due thereon; and also states the basis for the reserve upon all certificates or policies issued prior to January 1,1901, and that:
    “ (Article VII, Sec. 2) If the net value of the funds of the Association, after providing for outstanding claims and other accrued liabilities, or of the accumulated funds of any class hereunder, is at any time less than the reserve required by this Constitution or ByLaws and its policy contracts of which the same form part, or by law, each certificate or policy (or each certificate or policy of said class, as the case may be) shall be chargeable with an amount limited to its equitable share of such deficiency in the general funds of the Association, or in any class wherein such deficiency may arise, as determined by the Actuary of the Association, as an interest bearing loan upon such reserve, as provided in Section 5 of this Article, constituting a lien against the insurance under each such certificate or policy, and any dividends or surplus accruing thereon, which lien may, at the election of the member or policy-holder, be paid in cash and cancelled.
    Article VII, Sec. 3. In order that all policy or certificate holders, or classes of policy or certificate holders, may share equitably and in accordance with mutual principles in the distribution and payment of the cost of the insurance granted them, and in the establishment and maintenance of the reserve now or hereafter to be provided for the protection of their insurance, any and all classes of policy or certificate holders (insured under plans upon which a reserve equal to or exceeding a whole life reserve is not now maintained) whose net contributions to the death fund of the Association for the purpose of paying death claims (being the payments made, less that portion thereof provided or used for expenses) the Actuary of the Association shall determine to have been less than the tabular mortality by the Actuaries Table of Mortality, or any greater rate of mortality actually experienced by the Association in said classes, shall be, and from the adoption hereof become, and be treated as, whole life continuous premium policies as of age and rate for the date of original entry; and each and every policy, matured or unmatured, belonging to any class as above described, is hereby charged with a lien against the insurance thereunder, or any dividends or values arising therefrom, equal to the full standard reserve to date under such an above-described whole life contract, determined by said Actuaries’ Table with interest at four per cent, per annum, the same to bear interest at the annual rate currently charged upon loans to policy-holders upon the security of their insurance; and there shall be added to the said lien charge annually the sum by which the annual cash payments of the policy or certificate holder, called in accordance with the method heretofore governing said policies, or as may hereafter be determined by the Board of Directors may be less than the amount of the regular premium for the entry age by the Association’s table of rates for whole life continuous premium policies based on said reserve standard plus said interest; or deducted from said lien charge annually the sum by which the payments made by said policy-holder, as above provided, may exceed said whole life rate for entry age, plus said interest. Any and all policies affected hereby shall henceforth be regarded as contracts of whole life insurance, and the insured thereunder shall, subject to the deduction of any lien or charge against the same, and only in the event of written demand prior to lapse, be entitled to the regular surrender values as computed by said Association for said policies upon the reserve standard above named, and said policies shall, in lieu of any or every method of participation in surplus now therein provided, be credited with their equitable proportion of the surplus of the Association (in excess of the reserve required by law or by contract) as hereafter determined by the Actuary of the Association annually, the same to be applied to the reduction of any lien charge against the policy, or otherwise as the Board of Directors may determine. And the Board of Directors is authorized and empowered to hereafter similarly treat, in the manner and subject to the requirements and limitations above, or otherwise in its discretion, any class or classes of policy or certificate holders, or any part or portion of such class or classes (insured under plan upon which a reserve equal to or exceeding a whole life reserve is not maintained) whose payments to said Association, other than that portion thereof provided for or used for expenses, shall fall below either the tabular mortality by said Actuaries’ table, or any greater rate of mortality actually experienced by said Association in said class or classes, or portion thereof. ’ ’
    There is evidence in the record tending to prove that the experience of the appellant showed that the risks transferred from the Northwestern Company to appellant were greatly impaired, and that the death rate among such members was far in excess of the normal death rate on which life insurance is calculated and based; and that very much more was going out to pay death losses than was coming in from premiums and assessments. According to a report of appellant’s actuary made on February 18, 1901, this condition of affairs justly necessitated the treatment of these risks as constituting a class by themselves for the purpose of determining the cost of the protection had and the benefits derived therefrom; and that a “rating up” of the ages of such transferred members ought to be made to correspond with the actual mortality among them.
    Thereupon the directors of appellant, after considering the actuary’s report, took the following action under its constitution or by-laws, and the terms and provisions of the contract of re-insurance between the Northwestern Life Assurance Co. and appellant:
    “A reserve deficiency assessment is hereby ordered to be made upon all members of said class, and that said reserve assessment for each certificate or policy shall be determined by the Actuaries’ Table of Mortality with interest at four per cent, as of the rated age which has been determined by the Actuary of the Association as set forth in his report hearing date February 18, 1901, and in accordance with the rule laid down in said report shall be the excess of the reserve required on each certificate or policy on the basis of said rated age, over the reserve as determined by the corresponding age of issue, and that the amount of said assessment is now due and payable, but that such payment may be made at any time within thirty days from the date of notice in the case of each and every certificate, said thirty days being allowed as days of grace provided, however, that, in accordance with the provisions of Section 3, Article VII of the Constitution or ByLaws, the amount of this assessment be and hereby is charged as a lien against the insurance under each and every certificate or policy and any dividends or values arising therefrom, the amount to bear interest until paid at the annual rate of five per centum, which lien may be, at the election of the certificate or policy holder, at any time paid in cash and cancelled. ’ ’
    The excess mortality thus attempted to be charged against the policy in suit amounted to $3,039.60. This amount with interest the court below held appellee was entitled to recover in this action, and gave judgment therefor.
    The record shows that appellee demanded payment of the policy less the lien certificate for $1,519.70. Appellant claimed that it was not liable thereon because the deceased had broken his warranty not to use intoxicating liquors to excess; and even if it was liable there were certain deductions to be made for interest, premiums unpaid, and liens, which left the total amount due' thereon, in any event, only the sum of $5,071.03.
    Appellee first placed the matter in the hands of Mr. Anderson, an attorney, and the negotiations between him and appellant resulted in an offer to pay appellee $3,000 in settlement. Appellee declined the offer, took the matter out of Anderson’s hands and retained A. A. Goodrich of the Chicago bar who- took the matter up with a representative of appellant. After some negotiations appellant renewed the above offer to Mr. Goodrich, who declined it. Appellee then enlisted a Mr. Gilman, Deputy Comptroller of New York state, who had been a friend of her husband. Mr. Gilman took up the claim with the officers of appellant in New York, and also co-operated with Mr. Goodrich. The result of these negotiations was an offer on the part of appellant to pay $5,071.03 in full settlement, of all claims under the policy. This offer was accepted by appellee, and on November 17, 1902, appellant through its attorney gave appellee a sight draft for that amount as follows:
    “$5,071.03. Chicago, III., Nov. 17,1902.
    At sight pay to the order of Alice J. Smith Five Thousand Seventy one & 03/100 Dollars in full payment and settlement of Policy No. 135593 issued to Frederick M. Smith, deceased, and charge the same to Mortuary Account.
    Geo. J. Ktjeblee,
    as atty. for Mut. Besebve Life Ins Co.
    To Mutual Beserve Life Insurance Co.”
    And at the same time appellee delivered to Mr. Kuebler the following receipt;
    “$5071.03. Chicago, Nov. 17,1902.
    Received of the Mutual Beserve Life Insurance Company, Five Thousand & seventy one & 3/100 Dollars (being ten thousand dollars, less the balance premiums current policy year, $203.70, less the interest $165.97, and less the liens $4559.30) in full for all claims under policy No. 135593 which becomes a liability against said company under the contract of transfer between the Mutual Beserve Fund Life Association and the Northwestern Life Assurance Company) issued on the life of Fred M. Smith (deceased).
    Alice J. Smith,
    Witness: Adams A. Goodrich. - Widow.”
    Appellee at the same time delivered to the representative of appellant the policy mentioned in the above papers. She indorsed the draft and collected the money on it. She then brought this action on the policy. A jury was waived and the cause was submitted to the court without a jury. The court found for the plaintiff' and assessed the damages at $3,721.74 and entered judgment on the finding.
    Newman, Northrup, Levinson & Becker and Chester E. Cleveland, for appellant; Sewell T. Tyng, of counsel.
    Louis E. Hart and George H. Mason, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The record presents two questions, the decisions of which control the disposition of the case: First, did appellant have the right to deduct from the amount of the policy the excess mortality lien; and, second, was there an accord and satisfaction between the parties ?

Upon the question of the validity of the excess mortality lien or assessment the record shows that the deceased in his lifetime agreed with the Northwestern Company in the certificate of lien signed by him and dated October 28, 1899, that the $1,519.70, with any additional loan or charge, should “be a lien on the policy until paid.” Further, it was provided in the policy itself that the reserve, according to the standard mentioned in the policy, should be maintained, either from premiums paid by the insured or a lien on the policy, and for that purpose the mortality element of the premium might be varied according to the mortality experience of the company.

When the Northwestern Company transferred the insurance to appellant, the latter accepted the members of the Northwestern Company upon their original applications and certificates of membership or policies and the conditions thereof. Among these conditions was a provision that such members should continue their insurance “by paying the premium calls of said association in accordance with its calls, rules and bylaws now in force or hereafter to be established, and in accordance with the conditions of this agreement.” The other provisions of this contract material to the consideration of the question now before us are set out in the statement preceding this opinion.

The contract between the companies was one which could be made only with the approval and ratification of the members of the Northwestern Company. (Section 16 of Assessment Insurance Act, Hurd’s Bevised Statutes 1905, p. 1219.) While the contract was made nominally between the companies, it was, in effect, made with the members of the Northwestern Company, on whose approval it became effective. Frederick M. Smith was therefore bound by it.

The action of appellant, and the grounds therefor, in ordering the reserve deficiency assessment based upon its experience with the transferred members, was not attacked on the trial upon the ground that the facts did not warrant the measure, nor is it here claimed to be invalid on that ground. But its invalidity is urged on behalf of appellee upon the ground that the deceased was not bound by by-laws adopted subsequently to the issuance of Ms policy; and even where the member agrees to comply with all subsequently enacted by-laws, such laws which have the effect to reduce the amount payable at his death on his policy are not binding and operative, for want of power to enact laws which shall work any repudiation of the contract.

With this contention of appellee we cannot concur. It is the settled law of this state that a member of an association who, like the deceased, agrees in Ms applir cation or policy to abide by and be bound by subsequently adopted by-laws, is bound by them, unless they are unreasonable. Scow v. Royal League, 223 Ill. 32, and cases there cited. We do not think that the bylaws of appellant or the action of its directors in ordering the reserve deficiency assessment and making it a lien against the insurance under each certificate or policy, with the provision that it might be paid in cash and cancelled at the election of the policy holder, were unreasonable, or had the necessary effect to work any repudiation of the contract of insurance. In our opinion, under the certificate or policy sued on, and the contract of reinsurance between the Northwestern Life Assurance Company and the appellant, the latter had the right and power to divide its members into classes and fix the amount and rate of premiums, assessments or periodical calls for each class without reference to any other class, and to change the same from time to time as its experience or that of any class so established might require, in accordance with the policies of insurance or certificates and by-laws then in force or that might be enacted thereafter; and to charge the so-called extra mortality lien against the policy of Frederick M. Smith to make up the deficiency in the payment of premiums or assessments paid by said Smith and the class of members to which he belonged. This lien was a valid charge against the policy, and there was therefore nothing due the appellee when this action was brought. This view of the law is sustained by the following authorities: Bolles v. Mutual Reserve, 220 Ill. 400; Scow v. Royal League, supra; Barrows v. Mutual Reserve, 151 Fed. Rep. 461; Gaut v. Mutual Reserve, 121 Fed. Rep. 406.

In so far as the propositions of law held applicable to the case by the trial court were contrary to his view of the law, they were erroneous. The propositions of law requested by appellant, but refused by the court, which held that appellant had the right and power to charge the so-called extra mortality lien against said policy, should have been held as the law of the case.

The material and substantial facts bearing upon the question of accord and satisfaction between the parties and the release of appellant from all liability on the policy in suit are set forth in the statement preceding this opinion. Assuming, for the sake of argument, that the excess mortality lien discussed above was not legally a charge against the policy, and that in the absence of the settlement made with appellant Novemher 17, 1902, appellee would have a right to recover the amount of such lien, we are of the opinion, upon the facts shown in the record, that the settlement of November 17, 1902, was a perfect accord and satisfaction between the parties and a release of appellant from all liability on the certificate of membership or policy in suit.

There was an honest dispute between the parties as to the amount due on the policy. It cannot be said, under the provisions of.the policy, and the contract by which appellant took over and assumed the insurance in question, and under the by-laws of the appellant, and considering its experience with the insurance so taken over from the Northwestern Company, that the making of the excess mortality assessment, and claiming it as a lien against the amount due on the policy, was without foundation in the contract or in equity, and fraudulent against appellee. It was a matter of honest difference and discussion on both sides of the controversy. In the discussion and negotiations which arose between the parties, appellee had the benefit of the advice and services of legal counsel, and also the friendly advice and assistance of Mr. Gilman, deputy comptroller of New York, who, after investigating the matter, wrote to appellee’s counsel in Chicago, under date of November 11, 1902, and, after stating that the appellant was willing “to waive all other claims” and pay appellee $5,071.03 at once, further said: “From what I can see, the company is now doing all that was required of it under the contract entered into when they accepted these risks.” The claim which appellant was then insisting upon and appellee was objecting to was, to put it moderately, a fair matter of discussion possessing some basis in law and equity. Consequently, the result of a litigation over it was involved in doubt. It must be held, we think, that appellee acted with full knowledge of all the facts, and with the advice of counsel, and that the settlement was fairly and deliberately made without fraud on the part of appellant, either in misrepresentation of facts or concealment of the truth from appellee.

What, then, was the legal effect of the transaction of November 17,1902? The draft accepted and cashed by appellee specified that the amount was “in full payment and settlement” of the policy. The receipt given by appellee at the time she received the draft says that the money was received “in full for all claims under policy." Appellee at the same time delivered to appellant the policy. These facts constitute, we think, a complete bar to any recovery on the policy.

In Simmons v. American Legion of Honor, 178 N. Y. 263, the court, in deciding a case which does not differ in any essential element from the case before us, said:

“Now it is the settled law of this state that if a debt or claim be disputed or contingent at the time of payment, the payment, when accepted, of a part of the whole debt, is a good satisfaction, and it matters not that there was no solid foundation for the dispute. The test in such cases is, Was the dispute honest or fraudulent? If honest, it affords the basis for an accord between the parties which the law favors, the execution of which is the satisfaction.”

The rule of law stated in the above case is the settled rule in this state. Bingham v. Browning, 197 Ill. 122; Ostrander v. Scott, 161 id. 339; Canton Union Coal Co. v. Parlin, etc., Co., 215 id. 244.

The surrender of the certificate of membership or policy by appellee to appellant at the time of the receipt by her of the draft in full settlement of all claims thereunder, operated as a release and discharge of the liability thereon. Draper v. Hitt, 43 Vt. 439; Larkin v. Hardenbrook, 90 N. Y. 333; Grand Lodge Ill. Ind. Or. Mut. Aid v. Peiffer, 129 Ill. App. 208.

We think the court erred in refusing to hold the propositions of law requested by appellant upon this subject.

The judgment is reversed, with a finding of fact.

Reversed, with finding of fact.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Supreme Council of the Royal Arcanum v. Luella M. McKnight, Appellant, and Emma Little, Appellee.
    Gen. No. 13,890.
    1. Fbatebnal benefit society—who not qualified beneficiaries. Where nieces and nephews of blood relationship are qualified as beneficiaries, the niece of a deceased wife does not come within the designation and is not a qualified beneficiary.
    2. Fbatebnal benefit society—who may question qualifications of beneficiary. A person claiming adversely to the beneficiary named in the certificate may raise the question as to whether such beneficiary is qualified to take; the action of the society in filing a bill of interpleader, and paying the amount of the certificate into court does not affect the right of such contestant to raise such question.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    Rehearing denied April 14, 1908.
    Statement by tie Court. The Supreme Council of the Royal Arcanum, a benevolent association organized under the laws of Massachusetts, filed its bill of interpleader in the Circuit Court against Lnella M. McKnight, appellant, and Emma Little, appellee, claimants of the proceeds of a benefit certificate issued by the complainant to James Henry Little, one of its members, now deceased, to determine which of the claimants is the beneficiary and entitled to the benefits under the certificate.
    The bill avers that in 1895, James Henry Little became a member of Garden City Council, one of the subordinate bodies of the Arcanum, which issued to him a benefit certificate for the sum of three thousand dollars, payable “in the event of bis death in good standing, to such beneficiary or beneficiaries as he had designated in said benefit certificate, or might thereafter designate, in accordance with the provisions of the constitutions and laws of said order;” and that said Little then designated his wife, Olivia S. Little, as snch beneficiary. Olivia S. Little died in 1896.
    The bill further alleges that one of the laws of said corporation provided that a member might at any time pay a fee of fifty cents, make a written surrender of his benefit certificate, and direct that a new certificate be issued to him, payable to such beneficiary as such member might designate in accordance with the laws of the order. The written surrender and designation for change of beneficiary must then be forwarded under the seal of the subordinate council with the benefit certificate and fee to the Supreme Secretary who should issue a new certificate in accordance with the direction given. The by-laws provided that a “benefit” may be made payable to any one or more persons of any of the following classes only: 1st, member’s wife. * * * 8th, member’s nieces and nephews (children of brothers and sisters of the whole blood). 9th, member’s niece’s and nephews, (children of brothers and sisters of the half blood) * * * All relatives of a member to whom a benefit may be made payable as above provided must be blood relatives.”
    The bill alleges that after the death of the beneficiary, Olivia S. Little, James Henry Little made a request for a change of beneficiary in accordance with the sections of the by-laws, and named as his beneficiary Luella M. McKnight, appellant, stating in his request for the change of beneficiary that she was related to him as “niece”; and a benefit certificate was accordingly issued to him in which the benefit was made payable to Luella M. McKnight “niece.” The certificate so issued was in force at the time Little died, October 17, 1904.
    After the death of Olivia S. Little, as the bill shows, James Little married appellee, Emma Little, who survived him; that appellee claims that Luella M. McKnight is not the niece of said James Henry Little, but is the daughter of a sister of his first wife, Olivia S. Little, and therefore is not a legal beneficiary of said Little; that appellee claims the benefit as widow of the member under and in accordance with a by-law which provided that “if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person mentioned in Class First,” namely, the member’s wife.
    The bill prayed that the claimants might interplead and show to the court to which of them the fund of right belonged, stating that, “Tour orator being willing and desirous and hereby agreeing that the said benefit may be paid to such of them to whom the same shall belong, as in the judgment of your honors it shall appear of right to belong;” and for permission to pay the $3,000 into court, “for the benefit of such of the defendants who shall appear to be entitled thereto,” and that upon such payment the complainant might be released from all further liability.
    Appellee answered the bill setting up substantially the facts averred in the bill, and also the by-laws of the complainant.
    Appellant McKnight answered averring that at the time Little applied for a change of beneficiary and named her as such, said Little fully and carefully explained to the officers of said Garden City Council, and agents of the complainant, that she was a daughter of a sister of his deceased wife, Olivia, and therefore, his niece by reason of his intermarriage with said Olivia; that she was then and had been a member of his family and dependent on him for support since 1887, when she was but ten years of age; and that it was then represented to said Little by the officers of said council and agents of complainant that this defendant was eligible as a beneficiary to be named in the benefit certificate of said Little.
    Appellant’s answer further stated that a short time after the new benefit certificate was issued said Little became financially embarrassed and unable to continue the payment of assessments and dues to complainant, and was then in arrears $14.89; and wrote appellant a letter in which he stated his financial inability, and that “if you wish to keep this up I am perfectly willing you should do so. It is good and cheap insurance,” and signed the letter “Tour Uncle, Jjm.” After the receipt of the letter, it is alleged, appellant called upon the collector of the subordinate council, showed him the letter and told him she would pay up the arrearages and afterwards pay all assessments and dues as they became due, if she could receive the insurance in the event of Little’s death. She explained fully her relationship to Little, and that she was his designated beneficiary; and the collector told her that if she made the payments she would receive the benefit. Believing such statement she paid the $14.89 to the official, and afterwards paid all assessments and dues required prior to Little’s death aggregating $300.
    A decree was entered adjudging that the bill was properly filed and requiring the defendants to inter-plead ; the complainant was ordered to pay the sum of $3,000 into court and after payment of costs of the complainant the remainder of the fund be held to await the further order of court.
    On the final hearing of the cause between the inter-pleaders the court decreed that appellee, Emma Little, was entitled to the fund and ordered it paid to her.
    Millard R. Powers, for appellant.
    W. S. Oppenheim, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The evidence in the record consists of a stipulation of facts, the offer on the part of appellee of certain sections of the statute of Massachusetts relating to fraternal beneficiary organizations, in force May 29, 1888; also certain sections of the constitution of the Supreme Council of the Royal Arcanum and the testimony of appellee as to her marriage with James Henry Little December 20, 1899, and that she lived with him as his wife until his death October 17, 1904.

Appellant testified to the facts set up in her answer, and that Little had no children by his first marriage; that when she was nine years of age she went to live with Mr. and Mrs. Little in Omaha, Nebraska, and lived with them for six years until they moved to Chicago, and continued to live with them until Olivia S. Little’s death; that the home was not broken up by Mr. Little until nearly a year after Mrs. Little’s death. The letter of Mr. Little to her referred to in her answer was offered in evidence. She swore to the conversation with the collector and the payment by her of the arrearage on the certificate, and the payment by her of all subsequent assessments and dues, and that the amounts so paid by her aggregated about three hundred dollars; that for about one year before the death of her aunt she worked for the Chicago Telephone Company, receiving $10 per week, and that she was married March 30, 1898, but continued to live at Mr. Little’s house for months thereafter.

There is no conflict or controversy of fact in the evidence. The question presented is, Which claimant, under the law, is entitled to the fund?

The charter of the Supreme Council of the Royal Arcanum empowers it to prescribe by its by-laws the manner in which its purposes may be carried out, and further provides that benefits may be payable to “the husband, wife, children, relatives of, or persons dependent upon such member; but no contract under this act shall be valid or legal which shall be conditioned upon an agreement or understanding that the beneficiary shall pay the dues and assessments, or either of them, for said member.”

The benefit certificate in question contains an express provision that the contract is “upon condition that the said member complies in the future with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the Supreme Council to govern said Council and Fund.”

Counsel for appellant in his brief says: “We have never made any claim that appellant should receive this fund on the ground of dependency. We have always based our case upon relationship, and the fact that appellant was a member of Little’s family.” We may then dismiss from our consideration, without further remarks, the question of dependency, at the time of the death of the insured, under the charter and by-laws of the complainant, and the right of appellant to take the fund by reason of that fact.

The relationship of the beneficiary to the member specified in grades eighth and ninth provided for in section 324 of the by-laws of the complainant, as amended and in force August 1, 1904, and at the time of Little’s death, is that of the member’s nieces and nephews, “children of brothers and sisters of the whole blood” or “of the half blood.”

It appears to be clear from the terms used that this section of the by-laws requires the beneficiary to sustain a blood relationship when nieces or nephews are named, and therefore a niece of a deceased wife does not sustain the relation to the member required by the by-laws, and does not belong to either of the classes of persons for whom only the benefit fund in question was accumulated. Murphy v. Nowak, 223 Ill. 301; Baldwin v. Begley, 185 id. 180; Alexander v. Parker, 144 id. 355.

But it is urged on behalf of appellant that the charter and laws of the society should receive a liberal construction ; and that the right to the fund must be determined by the affirmative positions of the respective claimants. These general contentions are supported by authority and within proper limitations as to their application to any given case may be regarded as an expression of the law. But we cannot assent to the further contention made in behalf of appellant that when the designation of a beneficiary is not prohibited by statute or public policy, and the society waives a defense, no one else can avail of such a position to defeat an opposing claim; or as specifically applied to this case, in argument, “any defense the Arcanum might have made was personal to it, and was waived by filing its bill and paying the money into court," and therefore appellant being the beneficiary designated in the certificate of membership, appellee cannot raise the question that she does not belong to either of the classes of persons for whom the benefit fund in question was accumulated. Stating this proposition in another way, it is that when a bill of interpleader is filed by a benevolent association against the person named as the beneficiary in the certificate, and others who claim as relatives of the deceased member, the person named in the certificate is absolutely entitled to the fund, upon the ground that the association thereby waived the question of the inability of the beneficiary named to take under its charter and by-laws. If this is sound in law, it necessarily follows that the filing of the bill in every case gives the fund to the person named as beneficiary, and excludes all others who would be entitled to it under the contract and laws of the association if the bill had not been filed. As applied to the facts of this case, the proposition is not sound. We do not think the filing of the bill of interpleader in this case changed the rights of the parties as fixed by the contract at the death of Little.

In the early days of mutual benefit insurance there were frequently no provisions in the benefit certificate or the by-laws for the payment of the fund to anyone other than the person mentioned in the benefit certificate. If for any reason this designation failed, the association did not pay the fund to any person. Under such a state of affairs some courts have held where a bill of interpleader has been filed by a benefit association stating that claims were made by different persons under the certificate, and it was ordered to pay the money into court, it could not in that proceeding-question the right of the defendants to receive the money. Experience, however, has led benevolent associations to provide in their by-laws for such contingencies, and the Royal Arcanum, as the record shows, has provided by its by-laws that in the event of the failure of designation for illegality or otherwise, the benefit shall be paid to the person mentioned in class first in section 324, the member’s wife. Appellee, therefore, if this suit had not been instituted, would be entitled to take the fund in question, under the bylaws of the association. Under the contract here presented, we think the argument so earnestly presented by counsel for appellant, that the filing of this bill by the Royal Arcanum has deprived appellee of the right to insist upon the provisions of the contract and claim the fund under its provisions, and in so doing question the right of appellant thereto, must be regarded as wholly fallacious and inapplicable to the case. This is not and never has been the law of tins state, as we are advised. The reasoning and conclusion in Parke v. Welch, 33 Ill. App. 188, appeals to us with convincing force. The affirmation of the judgment in that case in Palmer v. Welch, 132 Ill. 141, established the law in this state upon the question presented.

On the authorities of these cases and Baldwin v. Begley, supra, and Murphy v. Nowak, supra, the decree of the Circuit Court must be affirmed.

Affirmed.


text:
    Pasquale Stillo, Appellee, v. Joseph M. Pelletiere.
    Gen. No. 13,898.
    Forcible entry and detainer—when court without jurisdiction to enter judgment in. The Circuit Court is without jurisdiction to enter judgment in an action of forcible entry and detainer where no complaint is on file.
    Forcible entry and detainer. Appeal from the Superior Court of Cook county; the Hon. Axel Ciiytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 3, 1908.

      Thomas W. Brown and Rocoo DeStefano, for appellant.
    George A. B. Pfuhl, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This is an appeal by the defendant from a judgment of the Superior'Court in forcible entry and detainer entered February 4, 1907. The cause was pending in the Superior Court on an appeal from a justice of the peace. At the time the judgment was rendered there was on file á transcript of a judgment before Bobert L. Campbell, justice of the peace, which recited that the case came into his court on a change of venue from Justice A. F. Keeney. The record shows that there was no other paper on file except the appearance of an attorney for the plaintiff. The transcript showed no complaint or summons. The defendant was not present at the trial.

Ten days after the judgment was entered the complaint and summons and a certified copy, so-called, of the transcript of the proceedings in the cause before Albert F. Keeney, the justice of the peace before whom the cause was commenced, was presented to the court, and on motion of the plaintiff it was ordered that the complaint, summons and certified copy of the transcript be filed.

The record shows that the cause was tried and judgment was entered without any complaint on file, and without any transcript showing the complaint, or that any complaint had been filed before the justice. According to the decisions of this court and the Supreme Court it is essential that both the justice’s transcript and the papers filed with him, including the complaint in a forcible entry and detainer action, should be on file in the court to which the appeal is prosecuted in order to give that court jurisdiction of the subject-matter of the action. Stolberg v. Ohnmacht, 50 Ill. 442; Redfern v. Botham, 70 Ill. App. 253; Abbott v. Kruse, 37 Ill. App. 549; Evans v. Bouton, 85 Ill. 579; Sheridan v. Beardsley, 89 id. 477. The judgment was null and void.

In our opinion the filing of the papers on February 14, 1907, did not aid or confer jurisdiction to hear and determine the case on February 4, 1907. A void judgment at the time it was entered could not be validated ten day afterwards by filing the papers necessary to give the court jurisdiction of the subject-matter of the action.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Tennessee Packing and Provision Company, Appellant, v. John J. Fitzgerald et al., Appellees.
    Gen. No. 13,909.
    1. Accounting—when equity will not grant relief by. Equity will not take jurisdiction and award an accounting where an action at law will afford ample relief, as where it appears that the amount claimed as due arose by virtue of the consignment of merchandise, and it does not appear by facts averred that the account in question is peculiarly intricate.
    2. Accounting—upon what jurisdiction of equity depends. In matters of accounting the jurisdiction of equity depends upon the discovery sought; the discovery must be essential to the attainment of justice in order that equity have jurisdiction. »
    3. Trusts—what not within equitable cognisance. Cases of mere bailments, as for instance the delivery of merchandise to a factor to sell and remit, are not within the peculiar cognizance of equity.
    4. Foreign coreorations—when may not maintain action in this state. Foreign corporations which have not complied with the license requirements of this state cannot maintain civil actions in this state. If the suit is upon a contract, it is immaterial in what state such contract was made.
    5. Pleading—when question of failure of foreign corporation to comply with license requirements may be raised by demurrer. The fact of noncompliance affirmatively appearing upon the face of the bill, the question may be raised by demurrer.

      Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hokore, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    Statement Toy the Court, Appellant, the Tennessee Packing & Provision Company, filed its bill in the Circuit Court against appellees, co-partners doing business under the firm name of Fitzgerald Bros., for an accounting. A demurrer was sustained to the bill. Thereupon appellant filed its amended bill to which appellees demurred and the demurrer was sustained. Appellant elected to stand by its bill of complaint, and the court dismissed the hill.
    The amended bill of complaint alleges that complainant is a corporation organized under the laws of the state of Tennessee; that it was authorized and empowered to conduct a general packing house business; that “at the times hereinafter mentioned (it) was not a resident of the state of Illinois and did not maintain a place of business within the state of Illinois for the purpose of transacting business or exercising its corporate powers or franchises; that its principal place of business is in the city of Nashville in the state of Tennessee;” that defendants were engaged in and carried on a general commission merchants and selling agents business in the city of Chicago; that prior to June 3, 1906, the appellees at the city of Nashville entered into an agreement with appellant whereby it was agreed that appellant should from time to time consign to appellees, at Chicago, packing house products to be there sold in the regular course of business, collect the money for the products sold and remit the same to appellant, less their reasonable commissions and charges; that in accordance with said agreement appellant on June 13, 1906, consigned to appellees certain packing house products, describing them, of the value of $1,200 and upwards, and said products were delivered to appellees ; that said products were by appellees sold in the regular course of business and delivered to divers persons, firms, and corporations unknown to appellant; and that appellant has no means of ascertaining the names of the persons, firms and corporations to whom appellees sold said goods or any part thereof.
    That under the terms of said agreement it was the duty of the appellees to account to appellant for said products and pay over the moneys collected in payment therefor, after deducting their commissions and charges; that appellant has frequently requested appellees to render an accounting, but they have failed and refused to comply with its requests; that said account is intricate and consists of a large number of items, and that appellant has no means of ascertaining or determining for what sums appellees sold said products, or what moneys had been collected and received in payment therefor.
    The bill prays for a discovery and an accounting and a decree for the amount found due and owing to appellant.
    Louis T. Orr, for appellant; William E. Cloves, of counsel.
    P. Shelly O’Ryan, for appellees; D. Ryan Twomey, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The special demurrer filed to the amended bill presents two grounds in substance: first, that appellant has an adequate remedy at law; and second, that it appears from the bill that appellant is a foreign corporation, and fails to show that it has been authorized to transact business in this state or that it has complied with the statute requiring foreign corporations doing-business in this state to have a public office in this state, etc.

It appears from the bill, we think, that the recovery here sought is of a purely legal demand, for which, if appellees are liable at all, the recovery could be had in an appropriate action at law. If appellees have sold the goods consigned to them by appellant, and have not accounted for them to . appellant, as alleged in the hill, an action at law could be maintained for the amount due to appellant. The hill shows that only one consignment was made to appellees, and although it is averred in the bill that the account is intricate, facts are not averred which support this conclusion of the pleader, and no reason is perceived in the nature of the transaction why a court of law is not competent to afford an adequate and ample remedy for enforcing the personal liability of appellees for their alleged failure to account for and pay over the proceeds of the property according to their contract. “In actions cognizable at law the mere fact that an accounting is necessary, even where there are cross-accounts, is insufficient to give a court of equity jurisdiction (Hadley v. Morrison, 39 Ill. 392), 'the general rule being that a proper case is presented when the remedies at law are inadequate. ’ Pomeroy ’s Eq. 177, 178, 1420, 1421; Storey’s Eq. Jur. 458, 459.” County of Cook v. Davis, 143 Ill. 151.

It is insisted, however, that the hill shows, and the demurrer admits, that a fiduciary relation existed between appellant and appellees which in itself imposed a duty upon appellees to render an accounting, and that there was, moreover, an agreement to account, and that this, in connection with the other facts alleged, calling for a discovery, makes a case for a court of equity.

A sufficient answer to this contention is that as the equity jurisdiction depends upon the discovery sought, the hill must be so framed as to require it. The bill must show by apt allegations that the facts sought to he discovered are material to sustain complainant’s cause of action, and that such facts are incapable of proof in a court of law, and can only he established by discovery from the defendant. In other words, the hill must show the discovery to be indispensable to the attainment of justice. County of Cook v. Davis, supra, The bill fails to show this, and, in our opinion, the demurrer was properly sustained on this ground.

The fiduciary relation set out in the bill does not fall within any recognized class of trusts over which equity takes jurisdiction. As said in Taylor v. Turner, 87 Ill. 296, at page 302: “It seems to us to be a simple case of the bailment of property to a factor to sell, and his refusal to pay over the proceeds of the sale to the owner of the property, and we know not why the legal remedy of an action for money had and received is not ample. If, by the allegation that the property was received upon a trust, the case may be brought within the jurisdiction of a court of chancery, we do not see why it might not be the same in every case of the bailment of personal property.” And again in Weer v. Grand, 88 Ill. 490, the court said: “Where one person employs another as an agent, loans money or sells property on credit, a confidence and trust is reposed to a greater or less extent, and yet such transactions have never been regarded by courts as falling within any recognized class of trusts.”

The other ground of demurrer is that appellant is a foreign corporation for pecuniary profit, and that it has not complied with the statute regulating the admission of such corporations to do business in this state. If, under the averments of the bill, this question is properly raised by demurrer, appellant cannot maintain the bill.

Appellant contends that while the statute is not expressly limited, by its terms, to actions brought on contracts made within this state, it was the intention of the legislature to so limit the act.

There are two answers to this contention. First, no such intention is to be gathered from the statute; and it has been applied to contracts made out of the state and a suit brought thereon in this state by a foreign corporation. J. Walter Thompson Co. v. Whitehead, 185 Ill. 454. Second, the business transacted by appellant, as shown by the bill, was done in this state, although the contract, under which it was done, was made in Tennessee. It is immaterial where the contract was made.

It is further contended by counsel for appellant that appellees cannot take advantage of the fact that appellant is a foreign corporation doing business in this state by demurrer, but should set up the facts by answer or plea as a matter of defense.

The bill, after averring that appellant is a Tennessee corporation, and the business which it is authorized to conduct, alleges that it “at the times hereinafter mentioned was not a resident of the State of Illinois and did not maintain a place of business within the State of Illinois for the purpose of transacting business or exercising its corporate powers or franchises.” These averments of the bill are sufficient, we think, to show affirmatively that appellant had not complied with the statute entitling it to do business within this state, and giving it a standing to “maintain any suit or action, either legal or equitable, in any of the courts of this state upon any demand, whether arising out of contract or tort.” We can see no reason why the same matter, which appears on the face of the bill, should again be stated or averred as a matter of defense in an answer or plea. It is sufficient if it appears in the bill; and where it so appears the same advantage may be taken of it by demurrer to the bill, which raises a question of law, as if the facts were first stated in an answer or plea, and an issue of law- raised thereon. The demurrer was properly sustained, we think, on tins ground. The United Lead Co. v. Elevator Manf. Co., 222 Ill. 199; J. Walter Thompson Co. v. Whitehead, supra; Union Cloak & Suit Co. v. Carpenter, 102 Ill. App. 339.

The decree is affirmed.

Affirmed.


text:
    Frank Halpin, Defendant in Error, v. John J. Duffy, Plaintiff in Error.
    Gen. No. 13,922.

      Verdict—when not set aside as against the evidence. A verdict will not he set aside on review as against the weight of the evidence unless it is clearly and manifestly so.
    Action on the case. Error to the Superior Court of Cook County; the Hon. Theodore Beentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed, with finding of facts.
    Opinion filed April 3, 1908.
    Statement by the Court. This is a writ of error prosecuted to reverse a judgment of the Superior Court in an action on the case brought by Frank Hal-pin, defendant in error, against John J. Duffy, plaintiff in error, to recover damages for injuries sustained by Halpin caused by a gun shot alleged to have been fired by Duffy on May 31, 1902.
    The defendant below filed a plea of not guilty. The trial resulted in a verdict of $2,000 in favor of the plaintiff below against the defendant, and the court rendered judgment thereon.
    It appears from the record that on the afternoon of May 31, 1902, a police officer of the city of Chicago was shot and killed at Forty-sixth street and Emerald avenue, in the city of Chicago. The murderer was reported to have gone toward Forty-sixth street and Stewart avenue, and at the time in question policemen on foot and in patrol wagons were moving about in the vicinity of Forty-sixth street, Stewart and Shields avenues, looking for the murderer. Plaintiff in error, who was at that time a police sergeant, hearing of the tragedy, ran from Union avenue to Stewart avenue, a distance of three blocks. On Stewart avenue were a number of railroad tracks running north and south. As Duffy arrived at Stewart avenue, a freight train was passing south on one of the tracks on the east side of the street, and he was compelled to wait for it to pass at Forty-sixth street.
    Frank Halpin, the defendant in error, and a man named Weingart, also ran east on Forty-sixth street to Stewart avenue about the same time, and all three men, with several others, were stopped in Stewart avenue by the passing train. They were on the north side of Forty-sixth street in Stewart avenue. Another police officer—John Klausen—had run east on Forty-sixth street about the same time, but a little in advance of •Duffy. Klausen passed over the tracks ahead of the train and kept on to Shields avenue, the next street east of Stewart avenue. Police officer Burke then came to Forty-sixth street from the north on Shields avenue, and was only a few feet away from Klausen. James Burns, a barber, was standing on the tracks near Duffy. James O’Connor.was also on the crossing near Duffy. William Thrumston was standing at an open window of a building on the north side of Forty-sixth street about midway between Stewart and Shields avenues.
    Forty-sixth street at this point is fifty feet in width. The west line of Shields avenue is 210 feet east of the east line of Stewart avenue. Between Stewart avenue and Shields avenue at a point 110 feet from the east line of Stewart avenue, an alley runs from Forty-sixth street south. It is sixteen feet in width, and its east line is eighty-four feet west of the west line of Shields avenue.
    The freight train had nearly passed, when Halpin and Weingart decided to return to their work and turned around, and in doing so Halpin faced Duffy. Duffy noticing’ a fresh scratch on Halpin’s face, asked him where he was going. Without making any reply, Halpin ran northeast around the end of the passing-train on the north, side of Forty-sixth street and ran southeast toward the entrance to the alley on the south side of Forty-sixth street. Duffy, Burns and O’Con-nor followed him. Duffy drew Ms revolver and called “Halt.” Halpin did not stop, and Duffy fired a shot. The firing of tMs shot attracted the attention of Officer Klausen, who saw Halpin running southeast in Forty-sixth street near Stewart avenue toward the alley. Klausen then ran west on Forty-sixth street to meet Halpin, drew Ms revolver and called “Stop” to Halpin. Halpin did not stop, but ran into the entrance of the alley, where he was struck in the leg by a bullet, and fell to the ground.
    George W. Miller, Frame L. Childs and Ode L. Rankin, for plaintiff in error; Edward J. Brundage Corporation Counsel, of counsel.
    W. S. Johnson and Henry R. Rathbone, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The question of fact contested on the trial was, Who shot Halpin? Officer Klausen testified that he fired the shot which struck Halpin. In this statement he is corroborated by plaintiff in error Duffy, James Burns, James O’Connor, William Thrumston and Thomas Burke. These six witnesses viewed the shooting from different points, and all were witlfin short distances from the point where Halpin fell in the alley, between the buildings on either side of it. The evidence of these witnesses appears from the record to be unshaken on cross-examination. The testimony of each witness is consistent with itself, and accords substantially with all the others, and the undisputed facts in the case.

The testimony offered by defendant in error upon this question was given by Halpin and Frank Weingart. Hatpin’s testimony on his direct examination is that he and Weingart left their work of unloading furMture from a wagon and went on Forty-sixth place east to the railroad tracks, where a long freight train was going south, and they waited there for it to pass by. While they were standing there Weingart suggested that they had better go back, as Murray, by whom they were employed, would be waiting for them. Thereupon they turned around and started to go back. He saw an officer who started to run towards him and said “Catch him,” and pulled a gun and shot him. Halpin says he heard two shots. The first one seemed to pass by his ear, and the second hit him in the leg, and he fell into a policeman’s arms standing on the other side of the railroad tracks at a telegraph post.

On his cross-examination Halpin says that he waited until the train went by, and then went east on Forty-sixth street to a point about half way between Stewart avenue and Shields avenue, and then started to go south through a driveway when the officer came around and said something to witness, and he turned around and started to go back. The officer said “Catch him” and sprang toward Mm. The witness then turned back to go east. The officer pulled a revolver and shot at him, but the shot did not strike him. When he heard the first shot he turned south and ran through the driveway, and while running into the driveway he was shot.

It will be observed that Halpin gives a very different account of what happened on his cross-examination from that given in Ms direct examination. The most material difference is as to the time and place when and where the officer first accosted him and fired the first shot. The inference from his direct examination is that before the train had passed and wMle he was west of it, on the tracks, he turned to go back to his work and was then and there shot by the officer.

In Ms cross-examination he says that the train had passed, and he had gone east on Forty-sixth street to a point about half way between Stewart avenue and Shields avenue and started to go south through the driveway when he was first spoken to by the officer, and that when he heard the first shot he turned south and ran toward the driveway; that the second shot came right after the first and that between the shots he ran only about five feet.

Again there is a very material difference in his testimony on cross-examination and on the re-direct. In his cross-examination he testified:

"Q. And where did the bullet enter, on the outside or the inside of the leg? A. It came in here. (Witness indicating outside of leg.)

Q. The outside of the leg? A. Yes, sir.”

On re-direct he testified:

“Q. Now, Mr. Halpin, point right out where that bullet went into your leg? A. There. (Indicating.)

Q. It is on the inside of your leg? A. Yes, sir.”

Later on in his testimony on the re-cross examination on the same subject, he was asked: “Q. How do you know? A. That is what the doctor claims.” When asked how he knew the officer who shot him, he said ‘ ‘ I turned around and looked at him. ’ ’

The witness Weingart’s testimony does not agree with the testimony of Halpin, and his story challenges credence in some particulars.

According to the testimony of this witness, the sergeant was standing about five feet away from him while they were waiting for the train to pass. He testified: “We turned half way around and the officer looked at Frank (Halpin) and he throwed up his hands and made a grab at him, and Frank turned around and ran away, and run east, and then the officer pulled out a gun and shot at him twice.” The officer was ten or fifteen feet away from Halpin when he shot the first time. Halpin was running northeast. After the second shot he saw Halpin “hopping along and hopping into another officer’s arms.” The other officer was east of the tracks. The officer who did the shooting “hollered ‘Catch him, catch him’ ”, after Halpin turned to run. “The railroad train didn’t go by until after Halpin was shot, then I walked across the tracks. * * * He was running Idnd of northeast away to g’et around the train. * * * He turned south after he was shot and kept on hopping.”

It is apparent from the mere statement of the testimony on behalf of defendant in error that Halpin's version of the shooting differs widely from the account given by Weingart; that it is inconsistent with itself, and that his personal knowledge as to who fired the shot, while he was running away from both Duffy and Klausen, whom he says he saw with a revolver in his hand, coming towards him from the east, is, to say the least, doubtful. And Weingart’s testimony that Halpin was shot before the train went by, and hopped all the way over the tracks to the entrance of the alley, a distance of over one hundred and ten feet, before any one caught him, and fell into an officer’s arms at that point, is quite unbelievable.

Turning now to the testimony of the other witnesses we find that Duffy says that as Halpin was running away from him and from fifty to seventy-five feet from him, he fired a shot in the air, and that he fired only one shot. He saw Officers Burke and Klausen east of him and saw Klausen point his revolver straight at Halpin and fire his revolver; and when Klausen shot, Halpin dropped on the ground and remained there.

Officer Burke, who was on Forty-sixth street just west of Shields avenue, says Klausen was west of him in the street; that he saw Halpin running east, and Klausen fired at Halpin, who fell and Klausen ran ahead of the witness and picked him up.

The witness Tbrumston saw the shooting from an open window of the building on the north side of the street opposite the entrance to the alley. He testifies he saw Klausen shoot Halpin.

The witness Burns testified that he saw Duffy and Halpin when the latter started to run, and Duffy started to run after him, and fired a shot up in the air; that he, Burns, thinking Halpin was the person who had killed the officer, started to run as soon as Duffy did and passed Duffy; that the witness saw Officer Klausen coming west to meet Halpin, and saw the officer shoot Halpin as Halpin turned into the alley.

The witness O’Connor testified that he had just come up and heard Duffy call “Halt” and saw Halpin start to run; that Sergeant Duffy fired a shot up in the air, and witness followed Duffy; that he saw Halpin run into the alley, and saw Klausen fire the shot that hit Halpin.

In addition to these witnesses, Officer Klausen against his own interest, testified that as lie was going east on Forty-sixth street at the corner of Shields avenue he heard a shot, and turning around saw Halpin at the railroad tracks running east towards him. He called to him to stop, but Halpin continued running, and when he saw him about to disappear in the alley the witness fired a shot at him and he fell, and the witness ran to him and picked him up.

One other feature of the evidence must be noticed. The leg of defendant in error was shown to the jury. It is urged by counsel for defendant in error that the jury from an inspection of the scars on the leg could judge as to the direction from which the shot came; and this evidence tended to show that the bullet penetrated the leg on the inside and came out on the outside and lower down, thus showing that the shot must have been fired by Duffy.

The shot passed through the leg below the knee producing a compound fracture of the tibia or large bone of the'leg. In the act of running the lower part of the leg is naturally thrown in a position so that if a shot fired from an easterly direction struck the leg when it was extended back it would enter the outside of the leg and come out on the inside higher up, and somewhat to the front of the leg. There is therefore no physical difficulty in the theory that the bullet fired by Klausen struck Halpin’s leg. Indeed, it is more probable, we think, that such was the fact than that a bullet coming from Duffy’s revolver should have entered the leg on the inside and taken a downward course and come out lower down on the outside. Duffy was following Halpin and too much to his back for this theory to be true.

Moreover, we do not think it possible for a jury or physician even, from a mere inspection of the scars after the wound had been kept open on the outside of the leg for drainage purposes for some time, to determine or to reach any reliable conclusion as to which side of the leg the bullet entered. Halpin’s evidence on this point is contradictory and unreliable.

Considering all the evidence in the record upon this question, we think the verdict of the jury that plaintiff in error Duffy shot Halpin is so manifestly against the great and decisive weight and preponderance of the evidence that the judgment cannot be allowed to stand. We are of the opinion from the evidence that Klausen shot Halpin; and that the evidence preponderates so strongly in favor of plaintiff in error that no verdict or judgment ought ever to be rendered against him in this case upon this evidence. The judgment is therefore reversed, but the cause is not remanded.

This disposition of the case makes it unnecessary for us to consider other errors assigned and argued.

The judgment is reversed with a finding of fact.

Reversed, with finding of fact.


author: Mr. Presiding Justice Holdom

text:
    The Roberts-Manchester Publishing Company, Plaintiff in Error, v. William H. Wise, Defendant in Error.
    Gen. No. 13,721.
    1. Interest—when unreasonable and vexatious delay does not appear. An unreasonable and vexatious delay of payment authorizing the award of interest does not exist where there was a valid legal dispute between the parties as to the validity of the claim.

      2. Recoupment—what does not tar right to interpose. A default in paying when due a claim made the basis of the action does not bar the right to interpose by way of recoupment a claim recognized as valid but as to which the measure of damages is in dispute.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bktjggemeyer, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 6, 1908.
    Rice & O’Neil, for plaintiff in error.
    Arthur W. Underwood, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In the conclusions to which we have arrived we have continuously kept in mind the terms of the Municipal Court Act, which inhibits this court from reversing the judgments of the Municipal Court unless satisfied from a statement or stenographic report signed by the judge that the judgment is contrary to the law and the evidence, or that such judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties, and making it our duty to decide cases upon the merits as they appear from the stenographic report signed by the judge as found in the record. Vide section 23, subdivisions 7 and 8 of the Municipal Court Act.

The plaintiff, a corporation doing business in Milwaukee, Wisconsin, was at the time of making the contract hereinafter referred to, engaged in compiling historical data for a ten volume publication, which it first termed “Documentary History of Civilization,” but finally sent it forth to the public under the title of “Ideals That Influenced Civilization.” Defendant was at this time a book canvasser for the firm of A. L. Schuman & Co., of Des Moines, Iowa.

Plaintiff, May 20, 1901, by letter stated the terms of a contract for the sale and delivery of 100 sets of the ten volume publication. The conditions, as affecting the contentions before us, are as follows:

. “You are to purchase as published and to pay for as delivered fifty sets of the work bound in buckram, the regular selling price of which is to be $32.50 per set; forty sets of the work bound in half leather, of which the regular selling price is to be $45.00 per set; and ten sets of the work bound in full leather, of which the regular selling price is to be $60.00 per set. Upon these sets you are to receive a discount of sixty per cent.

“The goods are to be shipped you f. o. b. at Milwaukee, Wisconsin. * * * You are to have exclusive control of Iowa, and to make sales there only. * * * This contract is to be binding on both parties for one year from date, and thereafter until annulled by either party or superseded."

The concurrence of defendant in the terms so proffered was indicated by his writing upon the letter “Accepted. Wm. H. Wise,” and returning it so signed to plaintiff.

A trial befdre. the Municipal Court and a jury resulted in a verdict for defendant, and plaintiff’s motion for a new trial being denied, it prosecutes this writ of error and assigns as errors for reversal the overruling of the motion for a new trial and in entering judgment upon the verdict; that the verdict is manifestly against the law and the evidence, and error in admitting any evidence of damage for non-performance of the contract by plaintiff until proof that defendant on his part had complied with its terms.

It is strikingly observable that the contract is silent as to the time when any of the volumes should be delivered. While the law might presume, in the absence of an agreement as to the time of delivery, that deliveries should be made within a reasonable time, yet what would be such reasonable time would have to be determined by reference to the nature of the transaction of the parties to such transaction. But we do not think it is necessary for us to so determine by resort to the inferences of the law. The parties themselves subsequently agreed, by parol, as to the time of delivery of the first five volumes of the 100 sets. That date Was September, 1901. That none of the volumes were delivered until March 10,1902, stands admitted, and then but fifty sets of volumes 1 and 2. None of volumes 4 and 5 were delivered until August 5, and September 9, 1902. The date of the last delivery was April 23, 1903. That neither party lived up to the terms of the contract binding them is not a matter of serious controversy. It is equally apparent that defendant made known to plaintiff his claim for damages for delay in delivery of the volumes on more than one occasion anterior to the commencement of this suit. The contract required defendant to pay for the several volumes upon delivery. We are inclined to interpret this to mean when defendant delivered the volumes to the subscribers from whom he took orders; but, be this as it may, the fact remains that he neither paid for the volumes when they were delivered to him or when he delivered them to the subscribers. In fact the only volumes he paid for were those sent to him O. O. D.

The undisputed account shows that volumes to the contract price of $1,134.90 were delivered; that payments were made to the amount of $299.20, and volumes returned and credited to the amount of $136.25, leaving the amount due for volumes delivered and retained by defendant of $699.45.

Plaintiff makes a claim for interest on deferred payments of $169.45, but we are of the opinion, from the facts in proof, that there was a valid legal dispute between the parties, and that defendant’s defense and counter claim cannot be said to have been interposed merely for delay. This being so, we are unable to say that the amount claimed by plaintiff was vexatiously withheld, so as to entitle plaintiff to have interest included in any judgment which might be entered upon its claim. The delays in deliveries were in a measure beyond the control of plaintiff. They were occasioned by strikes among printers and bookbinders, growing out of disagreements between plaintiff and these craftsmen. Such delays, however, from whatever cause they may have arisen, were insufficient to exculpate plaintiff from liability to respond to defendant in damages suffered by him owing to long-continued delays in making deliveries. That defendant was not only incommoded in his business, but damaged, is fairly inferable from the proofs. The measure of those damages chargeable to plaintiff must be confined to the items of expenses of two trips to Milwaukee, $75; expenses and loss of time in trip around territory in delivering first two volumes $100; expense of a trip to Chicago $25, and loss of profit on cancelled orders $175. Such was the limitation which the trial court, by its rulings on the evidence and instructions to the jury, put upon the defendant’s counter claim. The total of these items is $375. The ruling of the trial court that defendant was bound to pay for all the volumes received and retained by him from plaintiff at the contract price meets with our sanction; but with the contention of counsel for plaintiff that defendant, because of his failure to make such payments, was precluded from recouping or setting off his damages ■against plaintiff’s claim, we cannot agree. We do not so understand the doctrine announced in Harber v. Moffat Cycle Co., 151 Ill. 56; and if we did, it would be an all sufficient answer to say that the facts in that case and the case at bar are so divergent as not to constitute it an authority of determining force here. The written contract of the parties must be construed in the light of their subsequent actions. While defendant was not relieved from the obligation of his contract to pay for the volumes retained by him at the stipulated price, he was not cut off by reason of his default in this regard from setting off or recouping his damages, suffered through plaintiff’s breach, a claim which plaintiff clearly recognized, although the measure of damages was not agreed upon.

It will be seen from what has already been said, that defendant was not entitled to prevail in his recoupment of damages to the whole amount of plaintiff’s claim. The amount so claimed in excess of $375 is too remote and speculative to stand as a basis of complete recoupment. Under the evidence in this record, plaintiff was entitled to a judgment for $699.45, the amount of plaintiff’s claim, less credits and interest, after deducting therefrom the sum of $375 damages proven and recoverable by defendant for breaches of the contract by plaintiff. This amount is $324.45.

For the errors indicated the judgment of the Municipal Court is reversed and the cause remanded to that court for a new trial conformable to the views here expressed.

Reversed and remanded.


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    Cafe Lakota, Defendant in Error, v. John Doyle, Plaintiff in Error.
    Gen. No. 13,733.
    Landlobd and tenant—what does not constitute eviction. An eviction does not result when the landlord consents to an under-letting, where the request therefor was made on behalf of the tenant.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Abnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.
    Benson Landon, for plaintiff in error.
    James A. Steven, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The judgment in the Municipal Court, to reverse which a writ of error has been sued out from this court, was for $450, for rent of certain space in the Board of Trade Building, Chicago, for the months of November and December, 1906, and January, 1907. The leasing was by an instrument under seal executed by the parties to this suit. The lease was offered in evidence and received without objection. Juan L. Hurd, secretary of the defendant in error, was a witness. His testimony proved the execution of the lease and the amount of rent due at the sum for which judgment was rendered.

At the close of defendant in error’s proof counsel for plaintiff in error, under the contention that an eviction was shown by the evidence of Hurd to have taken place, moved that the jury be instructed to find a verdict in favor of Doyle. The court refused to instruct a verdict as requested, and plaintiff in error failing to offer any evidence, oral or documentary, to refute the case made, the trial judge instructed the jury to bring in a verdict for the amount of the claim.

The lease contained a covenant by the lessee, Doyle, not to underlet or assign the lease without the written consent of the lessor.

Hurd testifies that a person representing himself as acting at the request of Doyle came to him and produced Doyle’s copy of the lease and asked him to consent to an underletting of the demised premises, and to write such person’s name in the copy of the lease presented, at the same time saying that it would make no difference with Doyle, as he was on the lease. This seems to have been done twice; first for a man named “Bateman” or “Bettyman,” and second, for a man named Linsen. As a matter of fact both these men at different times paid several monthly installments of rent. If either of these men obtained actual possession of the leased premises, Doyle, or some one acting for him, must have put them into possession, for there is no evidence of the slightest character tending to show that any steps were taken by defendant in error to put either of them into possession, or that they interfered in any manner with possession of Doyle. So far as receiving rent from either of these persons is concerned, it will be assumed, in the absence of proof to the contrary, that they paid such rent for Doyle and in discharge of his covenant so to do. No presumption of an eviction can arise from the mere assent of defendant in error to an underletting by Doyle. Furthermore, there is nothing in this record changing in any manner the terms of the lease between the parties received in evidence without objection. It constitutes the contract of the parties, and by its terms their rights and liabilities must be measured and adjudged. A change in the copy of the lease would not affect the terms of the lease itself, and as the copy said to have been changed has not been produced, we are not at liberty to pass our judgment upon it by an inference as to the manner in which it was changed, if at all. The writing itself is the best evidence of its contents. It is not intimated that it was not in the power of Doyle to produce it upon the trial if he had so desired.

None of the authorities cited in support of the contention of counsel for plaintiff in error have any application to the facts of this case. On the subject of what constitutes an eviction, ITayner v. Smith, 63 Ill. 430, is enlightening. It was there held that to constitute an eviction by the landlord there must be an actual invasion of the demised premises or of some appreciable portion thereof, and the tenant be therefrom excluded. That a mere trespass was not an eviction. That there must be something of a grave or permanent nature done by the landlord with the intention of depriving the tenant of the beneficial enjoyment of the demised premises. Here there was no interference with the possession of Doyle whatever, merely a consent to his underletting, as required by the terms of the lease, such consent being given pursuant to a request made in behalf of Doyle.

In the condition of the proof it became the duty of the court to instruct the jury to find a verdict for the defendant in error. There being no countervailing proof or dispute, there were no questions of fact for determination by the jury.

There is no error in this record justifying a reversal of the judgment of the Municipal Court, and its judgment is therefore affirmed.

Affirmed.


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    Branstetter Motor Company, Defendant in Error, v. George M. Silverberg, Plaintiff in Error.
    Gen. No. 13,735.
    1. Finding of court—when not disturbed as against the evidence. The finding of the court in a cause tried without the intervention of a jury is entitled to the same weight as is accorded to the verdict of a jury, and it will not be disturbed on review as against the weight of the evidence, unless clearly and manifestly so.
    2. Replevin—when lies to recover property conditionally sold. Replevin lies by vendor against vendee to recover possession of personal property sold on condition that the title should remain in the vendor until full payment of the purchase price, when default has taken place in the payment of the purchase price according to the terms of the contract of sale.
    Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 6, 1908.
    E. J. Adler and F. E. Matthews, for plaintiff in error.
    J. E. Ingram, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The record of the Municipal Court is before us for review on a writ of error prosecuted from a judgment in a replevin snit for an automobile designated as a “National Car.”

The controverted point between the parties is, was the sale conditional or absolute. The cause was tried by the court without the intervention of a jury, and the finding of the trial judge is challenged as being contrary to the manifest weight of the evidence and the reasonable probabilities flowing from the proof. In other words, that the finding is contrary to logic and good sense. Plaintiff in error rests his contention on the probative force of the evidence alone, neither raising nor discussing any legal propositions.

We attach no importance to the claim that defendant in error sold the car for a Mr. Bunte, and that therefore it had no title to the car because it was sold on commission. If it was important, it is an all-sufficient disposition of the point to say that the record shows that the claim rests solely in the conclusions of counsel, unsupported by proof. Even had the car been sold for Bunte, the contract of sale between the only parties to it would be binding upon them in the absence of any counter claim. In any event no one could be heard to complain but Bunte, and defendant in error having sufficient title to pass it to Silverberg by bargain and sale, under which right the latter claims to be entitled to prevail and to retain the machine, defendant in error, if the sale was conditional, has a title sufficient to enable it to reclaim the machine on default in any of the conditions upon which the sale was made, and to maintain replevin to enforce such right and regain possession of the machine.

It is true that the evidence is contradictory and the contentions of each of the actors in the replevin suit diametrically opposed to each other. The burden of proving by a preponderance of the evidence that the sale of the machine was a conditional one, and also proving a breach of some material condition, was upon defendant in error. Silverberg stands alone as a witness to support his claim that he bought the machine with the agreement that he should pay for it in instalments, and that title passed by delivery. Arrayed against this testimony, and in affirmation of the claim that the sale was conditional, is the evidence of Harry P. Branstetter, president of the defendant in error, and the bookkeeper, Charles H. HcCausland. The character for veracity of neither of these witnesses having been impeached, their testimony must be treated as credible and worthy of belief. There is nothing of an impeaching character in their testimony as being at all inconsistent with environing conditions. There was no established course of dealing betwen the parties lending even a similitude of probability to the claim of Silverberg that he bought the machine partly for cash and partly on credit, the title passing to him upon delivery. He concedes that in another purchase of a machine from defendant in error the title did not pass until full payment for it was made.

The opportunities of the trial judge are superior to ours, in that he sees the witnesses, observes their demeanor upon the witness stand and their manner of testifying, and is the better able to determine from such opportunities whether there is any bias or feeling displayed by the witness, or whether the witness is fair and frank. Great weight must and should be given to the conclusions of the trial judge upon the facts, and a court of review will proceed with reluctance to disturb findings of fact by the trial judge, unless such findings are manifestly contrary to the clear probative force of the evidence. Where the uncontradicted proofs of a plaintiff are sufficient to sustain a judgment, a court of review will not interfere to disturb it, for the reason that there is countervailing proof making a sharp conflict on the facts between the parties. The findings of fact of the trial judge on controverted evidence are entitled to the same weight in a reviewing court as the verdict of a jury. Haug v. Haug, 193 Ill. 645; Miller v. Rendelman, 97 Ill. App. 115; Abrams v. Rideout, 101 Ill. App. 131.

A careful reading of the evidence inclines us to concur in the result reached by the trial court. Whether the machine was leased or sold on condition that title should remain in the vendor until full payment of the purchase price, is not of the essence of the right to maintain replevin. In either condition, on breach, replevin would lie at the instance of the vendor.

While a conditional sale of the machine, with the agreement that the title should remain in the vendor until payment was fully made, would be void against third parties and judgment creditors, it is good as between the parties and binding upon them, and as between them enforcible at law.

The contract of the parties is a hard one in. its operation upon Silverberg. By his failure to live up to the terms of his contract he has lost his money, and has no machine. But the contract is of his own making, and we have no power, even if we had the disposition, to change or modify any of its terms. By the contract and that alone must his rights be determined. Still we regard it as coming with ill and unconscionable grace for counsel to ask for an assessment of damages upon $500, which he claims to be the present value of the machine. The machine was sold conditionally upon the payment of $850. Of this amount $475 has been paid in money, leaving but $375 unpaid. Counsel say the machine is worth $500; be it so, there is still $125 margin left for damages. This strikes us as being not only ample but excessive compensation for any damage which the proof shows defendant in error suffered as a result of Silverberg-’s not fully performing his contract. The motion for the assessment of damages is denied.

The judgment of the Municipal Court being in accord with legal precedent, it is affirmed.

Affirmed.


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    George Siegmund, Defendant in Error, v. J. W. Strackbein and Mrs. J. W. Strackbein, Plaintiffs in Error.
    Gen. No. 13,739.
    1. Appeals aht> ereoes—when exceptions not essential to review. Exceptions are not essential to 'review tbe rulings of the judges of the Municipal Court.

      2. Appeals and ebbobs—when motion for new trial not essential to review. No motion for a new trial is necessary in the common law courts of this state where the trial is by the court without a jury; it is only essential that an exception appear to the judgment in order that its propriety may be considered upon appeal.
    3. Practice—ivhen propositions of law need not he presented. The presentation of propositions of law is not essential to preserve for review the merits of a controversy tried by a municipal court judge without the intervention of a jury.
    4. Pbepondebance of evidence—what does not constitute. An affirmative statement, met with a flat and categorical denial by an equally credible witness, does not constitute that quantum of affirmative proof which the law requires to sustain a judgment.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 6, 1908.
    Michael D. Dolan, for plaintiffs in error.
    Albert J. W. Appell, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error sued out in this cause brings to this court for review a judgment of the Municipal Court for $90. The right to a trial by jury the parties waived.

We are first confronted with a motion made by defendant in error to dismiss the writ of error because, it is claimed, naught is presented by the record calling for our review. This contention is predicated upon the fact that neither motion for a new trial nor exceptions to the finding and decision of the court was made, and that no propositions of law were submitted to the trial court.

In the first place, by subdivision 8 of section 23 of the Municipal Court Act, it is provided inter alia, “nor shall any exceptions to the rulings and decisions of the Municipal Court upon the trial be necessary to the right of either party to a review of such rulings and decisions in the Supreme Court or Appellate Court upon their merits.” Nevertheless, in the bill of exceptions found in the record an exception appears to the action of the court in entering judgment.

No motion for a new trial is necessary in the common law courts of this state where the trial is by the court without a jury. Numerous decisions may be found in the state reports holding in effect that where a jury is waived and the cause is tried by the court alone, no motion for a new trial is required; that in such case, legal requirements for a review are fully met when the bill of exceptions shows that the defendant excepted to the judgment rendered by the court in favor of the plaintiff. Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626; Sands v. Kagey, 150 ibid. 109; Guyer v. D. R. I. & N. W. Ry. Co., 196 ibid. 370.

Even if the Municipal Court Act does make it unnecessary, as a sine qua non to a review on error upon the merits of the cause, that a motion for a new trial be made in the Municipal Court, yet the record is unquestionably in condition, with an exception to the entry of the judgment found in it, to call for our review of the merits on the errors assigned.

So far as the absence of propositions of law is concerned, it is patent that no such legal questions were involved that in any manner necessitated the submission of propositions to test the legal principle which the trial judge applied to the facts as he interpreted them from the evidence. As the Municipal Court Act makes it our duty to decide cases coming to us from it upon their merits, it follows that in so doing we are at least impliedly, if not expressly, invested with authority to decide the merits by the application of controlling legal principles to the facts.

The motion, therefore, to dismiss the writ of error is denied.

Plaintiff below rests his claim for the price of a “runabout” and accompanying furnishings, which he says he sold to Mrs. Strackbein for $90. On the contention that this buggy was a necessary family expense under section 15, chap. 68, R. S., he joins the husband as party defendant with the wife. Defendant in error’s claim is supported by his own testimony only, every material element of which is denied by Mrs. Strackbein. In support of her defense Mrs. Strackbein is the only witness, and testifies that the “runabout” which she returned was loaned to her temporarily by defendant in error because he was unable to furnish her with a “Columbus Wagon,” which she wanted, and which he promised to soon procure. Mrs. Strackbein further testifies that the “runabout” was a secondhand one, that its shafts were damaged, and that while driving the “runabout” over Bush street bridge the shafts broke; that afterwards she requested Siegmund to send for the “runabout” and take it back, which, he failing to do, she returned it herself.

There are circumstances appearing in this testimony which detract somewhat from the probative force of Siegmund’s evidence and impels us to the opinion that the story of Mrs. Strackbein is the more probable of the two. But aside from our view of the reliability of the evidence given in support of the opposing theories, it is clear that defendant in error has failed to comply with the elementary principle of law which compels the party having the affirmative to maintain and. establish it by a preponderance of the evidence. The writing of letters and sending of bills demanding payment for the “runabout” add no probative force to the primal claim that a sale of the “runabout” was made to Mrs. Strackbein. No inferences supporting a contract of sale can be extracted from these acts done by defendant in error. An affirmative statement, met with a fiat and categorical denial by an equally credible witness, does not constitute that quantum of affirmative proof which the law requires to sustain a judgment. Broughton v. Smart, 59 Ill. 440. And as the court say in Kenyon v. Hampton, 70 Ill. App. 80, so say we here: “It is a familiar rule that a plaintiff must make out Ms or her case by a preponderance of the evidence. In this case there was a clear failure by the appellee in such regard, and we are bound to hold that the verdict was so manifestly against the preponderance of the evidence as to require us to reverse the judgment.”

So far as the husband of Mrs. Strackbein is involved, there is no evidence in the remotest degree tending to show that the “runabout” was such a necessary family expense as to make him jointly liable with his wife for the debt claimed to have been contracted in its purchase, under chapter 68, R. S., supra.

There being no evidence in tMs record sufficient to establish the claim of defendant in error against the plaintiffs in error, the judgment of the Municipal Court is reversed, with a finding here of the issues in favor of plaintiffs in error, this being such an order as the Municipal Court ought, in our judgment, to have entered. TMs finding is entered in conformity with the directions of subdivision 7 of section 23 of the Municipal Court Act.

Reversed.